Emergency Application — North Dakota, et al., Applicants v. Environmental Protection Agency, et al.

Supreme Court briefAug 16, 2024

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No. ________

In the Supreme Court of the United States

STATE OF NORTH DAKOTA, STATE OF WEST VIRGINIA, et al.,

Applicants,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

TO THE HONORABLE JOHN G. ROBERTS, JR.,

CHIEF JUSTICE OF THE UNITED STATES

AND CIRCUIT JUSTICE FOR THE D.C. CIRCUIT

STATES’ EMERGENCY APPLICATION FOR AN IMMEDIATE STAY OF

ADMINISTRATIVE ACTION PENDING REVIEW IN THE D.C. CIRCUIT

PATRICK MORRISEY

Attorney General

DREW H. WRIGLEY

Attorney General

MICHAEL R. WILLIAMS

Solicitor General

PHILIP AXT

Solicitor General

*Counsel of Record

Office of the Attorney General

State Capitol Complex

Building 1, Room E-26

Charleston, WV 25301

Phone: 304.558.2021

michael.r.williams@wvago.gov

Counsel for State of West Virginia

NESSA HOREWITCH COPPINGER

DAVID M. FRIEDLAND

Special Assistant Attorneys General

Office of the Attorney General

600 E Boulevard Ave., Dept. 125

Bismarck, ND 58505

Phone: 701.328.2210

pjaxt@nd.gov

Counsel for State of North Dakota

TABLE OF APPENDICES

Court of Appeals Order Denying the Motions to Stay

(D.C. Cir. August 8, 2024) ........................................................................................ 1a

42 U.S.C. § 7412 ........................................................................................................... 3a

National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired

Electric Utility Steam Generating Units Review of the Residual Risk and

Technology Review, 89 Fed. Reg. 38508 (May 7, 2024) ........................................ 59a

Chang Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 145a

Fedorchak Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 160a

Friez Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 174a

Huston Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 269a

Lane Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 275a

McCollam Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 295a

McLennan Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 312a

Nowakowski Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 515a

Purvis Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 526a

Rickerson Declaration (ECF No. 2058570), filed in support of State of North

Dakota’s Motion to Stay (D.C. Cir. June 7, 2024) ............................................... 546a

Tschider Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 552a

Vigesaa Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 592a

Webb Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 601a

Bohrer Declaration (ECF No. 2058570), filed in support of State of North Dakota’s

Motion to Stay (D.C. Cir. June 7, 2024)............................................................... 605a

Excerpted MISO Comments,

Docket ID Nos. EPA-HQ-OLEM-2021-0280, EPA-HQ-OLEM-2021-0282,

EPA-HQ-OLEM-2021-0283 .................................................................................. 612a

Excerpted Minnkota Power Co-op. Inc. Comment,

EPA-HQ-OAR-2018-0794-5978 ............................................................................ 616a

Excerpted Nat’l Min. Ass’n Comment,

EPA-HQ-OAR-2009-0234-20531 .......................................................................... 619a

Excerpted National Rural Electric Cooperative Association (NRECA) Comment &

attachment Cichanowicz, et al., Technical Emissions Standards for Hazardous Air

Pollution: Coal and Oil-fired Electric Utility Steam Generating Units Review of

Residual Risk and Technology Review

EPA-HQ-OAR-2018-0794-5956 ............................................................................ 624a

Excerpted Rainbow Energy Center Comment,

EPA-HQ-OAR-2018-0794-5990 ............................................................................ 634a

Excerpted Power Generators Air Coalition Comment,

EPA-HQ-OAR-2018-0794-5994 ............................................................................ 637a

Excerpted North American Coal Corporation (NACCO) Comment,

EPA-HQ-OAR-2018-0794-6000 ............................................................................ 640a

Excerpted 2018 Technology Review for the Coal- and Oil-Fired EGU Source

Category ................................................................................................................ 645a

Excerpted Residual Risk Assessment for the Coal- and Oil-Fired EGU Source

Category in Support of the 2020 Risk and Technology Review Final Rule, EPAHQ-OAR-2018-0794-4553 (Sept. 2019) ................................................................ 648a

Excerpted 2023 Technology Review for the Coal- and Oil-Fired EGU Source

Category ................................................................................................................ 662a

Excerpted EPA Summary of Public Comments and Responses on Proposed Rule,

National Emission Standards for Hazardous Air Pollutants: Coal- and Oil-Fired

Electric Utility Steam Generating Units, Review of the Residual Risk and

Technology Review, published 88 Fed. Reg. 24854, Apr. 24, 2024 (“EPA Response

To Comments”) ..................................................................................................... 664a

Excerpted FERC-NERC-Regional Entity Staff Report: The February 2021 Cold

Weather Outages in Texas and the South Central United States

(Nov. 16, 2021) ...................................................................................................... 678a

Excerpted Regulatory Impact Analysis for the Final National Emission Standards

for Hazardous Air Pollutants: Coal- and Oil-Fired Electric Utility Steam

Generating Units Review of the Residual Risk and Technology Review, EPA452/R-24-005 (April 2024) .................................................................................... 683a

EPA’s Combined Opposition To Motions To Stay Final Rule (ECF No. 2065849)

(D.C. Cir. No. 24-1119 July 22, 2024) .................................................................. 725a

Excerpted EPA Resp. to Petitioners’ Motions To Govern Future Proceedings,

White Stallion Energy Ctr., LLC. v. EPA, No. 12-1100, Entry 1579186

(D.C. Cir. Oct. 21, 2015) ...................................................................................... 791a

D.C. Cir. Order, White Stallion Energy Ctr., LLC. v. EPA, No. 12-1100, Entry

1588459 (D.C. Cir. Dec. 15, 2015) ........................................................................ 794a

Excerpted Transcript of Oral Argument, Michigan v. EPA,

576 U.S. 743 (Mar. 25, 2015) (No.14-46) ............................................................. 796a

USCA Case #24-1119

Document #2068631

Filed: 08/06/2024

Page 1 of 2

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 24-1119

September Term, 2023

EPA-89FR38508

Filed On: August 6, 2024

State of North Dakota, et al.,

Petitioners

Environmental Protection Agency,

Respondent

-----------------------------San Miguel Electric Cooperative, Inc., et al.,

Intervenors

-----------------------------Consolidated with 24-1154, 24-1179,

24-1184, 24-1190, 24-1194, 24-1201,

24-1217, 24-1223

BEFORE:

Henderson, Pan, and Garcia, Circuit Judges

ORDER

Upon consideration of the motions for stay pending review, the oppositions

thereto, the replies, and the Rule 28(j) letter, it is

ORDERED that the motions for stay be denied. Petitioners have not satisfied

the stringent requirements for a stay pending court review. See Nken v. Holder,

556 U.S. 418, 434 (2009); D.C. Circuit Handbook of Practice and Internal Procedures

33 (2021). It is

FURTHER ORDERED, on the court’s own motion, that the parties submit, within

14 days from the date of this order, proposed formats and schedules for the briefing of

these cases. The parties are strongly urged to submit a joint proposal and are

reminded that the court looks with extreme disfavor on repetitious submissions and will,

where appropriate, require a joint brief of aligned parties with total words not to exceed

the standard allotment for a single brief. Whether the parties are aligned or have

disparate interests, they must provide detailed justifications for any request to file

USCA Case #24-1119

Document #2068631

Filed: 08/06/2024

Page 2 of 2

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

____________

No. 24-1119

September Term, 2023

separate briefs or to exceed in the aggregate the standard word allotment. Requests to

exceed the standard word allotment must specify the word allotment necessary for each

issue.

Per Curiam

FOR THE COURT:

Mark J. Langer, Clerk

BY:

/s/

Selena R. Gancasz

Deputy Clerk

Page 2

§ 7412. Hazardous air pollutants, 42 USCA § 7412

United States Code Annotated

Title 42. The Public Health and Welfare

Chapter 85. Air Pollution Prevention and Control (Refs & Annos)

Subchapter I. Programs and Activities

Part A. Air Quality and Emissions Limitations (Refs & Annos)

42 U.S.C.A. § 7412

§ 7412. Hazardous air pollutants

Effective: August 5, 1999

Currentness

(a) Definitions

For purposes of this section, except subsection (r)-(1) Major source

The term “major source” means any stationary source or group of stationary sources located within a contiguous area and

under common control that emits or has the potential to emit considering controls, in the aggregate, 10 tons per year or more of

any hazardous air pollutant or 25 tons per year or more of any combination of hazardous air pollutants. 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, persistence, potential for bioaccumulation, other characteristics of

the air pollutant, or other relevant factors.

(2) Area source

The term “area source” means any stationary 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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

The term “modification” means any physical change in, or change in the method of operation of, a major source which

increases the actual emissions of any hazardous air pollutant emitted by such source by more than a de minimis amount or

which results in the emission of any hazardous air pollutant not previously 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 resources, including adverse impacts on populations of endangered or

threatened species or significant degradation of environmental quality 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 onethird of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution

system for sale shall be considered an electric utility steam generating 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 stationary source other than a new source.

(11) Carcinogenic effect

Unless revised, the term “carcinogenic effect” shall have the meaning provided by the Administrator under Guidelines for

Carcinogenic Risk Assessment as of the date of enactment. Any revisions in the existing Guidelines shall be subject to notice

and opportunity 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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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

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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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 (1-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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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)

§ 7412. Hazardous air pollutants, 42 USCA § 7412

101688 Methylene diphenyl diisocyanate (MDI)

101779 4,4′-Methylenedianiline

91203 Naphthalene

98953 Nitrobenzene

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

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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 arsine)

10a

§ 7412. Hazardous air pollutants, 42 USCA § 7412

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 applies: Unless

otherwise specified, these listings are defined as including any unique chemical substance that contains the named chemical

(i.e., antimony, arsenic, etc.) as part of that chemical's infrastructure.

X′CN where X = H′ or any other group where a formal dissociation may occur. For example KCN or Ca(CN) 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.

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.

Includes organic compounds with more than one benzene ring, and which have a boiling point greater than or equal to

100°C.

A type of atom which spontaneously undergoes radioactive decay.

11a

§ 7412. Hazardous air pollutants, 42 USCA § 7412

(2) Revision of the list

The Administrator shall periodically review the list established by this subsection and publish the results thereof and, where

appropriate, revise such list by rule, adding pollutants which present, or may present, through inhalation or other routes of

exposure, a threat of adverse human health effects (including, but not limited to, substances which are known to be, or may

reasonably be anticipated to be, carcinogenic, mutagenic, teratogenic, neurotoxic, which cause reproductive dysfunction,

or which are acutely or chronically toxic) or adverse environmental effects whether through ambient concentrations,

bioaccumulation, deposition, or otherwise, but not including releases subject to regulation 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 listed under section 7408(a) of this title or to any pollutant which is

in a class of pollutants listed under such section. No substance, practice, process or activity regulated under subchapter VI of

this chapter shall be subject to regulation under this section solely due to its adverse 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 petition 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 receipt of a petition, the Administrator shall either 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 environmental defects 1 of the pollutant or other evidence adequate to

support the petition. The Administrator may not deny a petition solely 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, bioaccumulation or deposition

of the substance are known to cause or may reasonably be anticipated to cause adverse effects to human health or adverse

environmental effects.

(C) The Administrator shall delete a substance from the list upon a showing by the petitioner or on the Administrator's own

determination that there is adequate data on the health and environmental effects of the substance to determine that emissions,

ambient concentrations, bioaccumulation or deposition of the substance may not reasonably be anticipated to cause any

adverse effects to the human health or adverse environmental effects.

(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 Administrator'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 promulgating any emission standards pursuant to subsection (d) applicable to any source

category 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

12a

§ 7412. Hazardous air pollutants, 42 USCA § 7412

If the Administrator determines that information on the health or environmental effects of a substance is not sufficient to

make a determination required by this subsection, the Administrator may use any authority available to the Administrator

to acquire such information.

(5) Test methods

The Administrator may establish, by rule, test measures and other analytic procedures for monitoring and measuring

emissions, ambient concentrations, deposition, and bioaccumulation of hazardous air pollutants.

(6) Prevention of significant deterioration

The provisions of part C (prevention of significant deterioration) shall not apply to pollutants listed under this section.

(7) Lead

The Administrator may not list elemental lead as a hazardous air pollutant under this subsection.

(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 response 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 pursuant to subsection

(b). To the extent practicable, the categories and subcategories listed under this subsection shall be consistent with the list of

source categories established pursuant to section 7411 of this title and part C. Nothing in the preceding sentence limits the

Administrator's authority to establish subcategories under this section, as appropriate.

(2) Requirement for emissions standards

For the categories and subcategories the Administrator lists, the Administrator shall establish emissions standards under

subsection (d), according to the schedule in this subsection and subsection (e).

(3) Area sources

The Administrator shall list under this subsection each category or subcategory of area sources which the Administrator finds

presents a threat of adverse effects to human health or the environment (by such sources individually or in the aggregate)

warranting regulation 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 representing 90 percent of the area source emissions 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 regulations shall be promulgated not later than 10 years after November 15, 1990.

13a

§ 7412. Hazardous air pollutants, 42 USCA § 7412

(4) Previously regulated categories

The Administrator may, in the Administrator's discretion, list any category or subcategory of sources previously regulated

under this section as in effect before November 15, 1990.

(5) Additional categories

In addition to those categories and subcategories of sources listed for regulation pursuant to paragraphs (1) and (3), the

Administrator may at any time list additional categories and subcategories of sources of hazardous air pollutants according to

the same criteria for listing applicable under such paragraphs. 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 promulgated 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-tetrachlorodibenzofurans and 2,3,7,8-tetrachlorodibenzo-p-dioxin, the Administrator shall, not later than 5

years after November 15, 1990, list categories and subcategories of sources assuring that sources accounting 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 require the Administrator to promulgate standards for such pollutants emitted by electric utility steam generating units.

(7) Research facilities

The Administrator shall establish a separate category covering research or laboratory facilities, 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 development into new processes and products, where such source

is operated under the close supervision 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

unless the Administrator finds that such listing would be inconsistent with the goals and requirements 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 either subparagraphs (C) or (D) of subsection (b)(3).

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(B) The Administrator may delete any source category from the list under this subsection, on petition of any person or on the

Administrator's own motion, whenever the Administrator makes the following determination 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 individual 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

environmental 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 adverse 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 petition under this paragraph within 1 year after the petition is filed.

(d) Emission standards

(1) In general

The Administrator shall promulgate regulations 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 accordance with the

schedules provided in subsections (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 require the maximum degree of reduction in emissions of the hazardous air pollutants subject to this section (including

a prohibition on such emissions, where achievable) that the Administrator, 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 emission 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 process changes, substitution of materials

or other modifications,

(B) enclose systems or processes to eliminate emissions,

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(D) are design, equipment, work practice, or operational standards (including requirements for operator training or

certification) as provided in subsection (h), or

(E) are a combination of the above.

None of the measures described in subparagraphs (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 confidential business

information, or any trade secret or any other intellectual property right.

(3) New and existing sources

The maximum degree of reduction in emissions that is deemed achievable for new sources in a category or subcategory shall

not be less stringent than the emission control that is achieved in practice by the best controlled similar source, as determined

by the Administrator. Emission standards promulgated 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 stringent than-(A) the average emission limitation achieved by the best performing 12 percent of the existing sources (for which the

Administrator has emissions information), excluding those sources that have, within 18 months before the emission

standard is proposed or within 30 months before such standard 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) applicable 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 Administrator may consider such threshold

level, with an ample margin of safety, when establishing emission standards under this subsection.

(5) Alternative standard for area sources

With respect only to categories and subcategories of area sources listed pursuant to subsection (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 technologies or

management practices by such sources to reduce emissions of hazardous air pollutants.

(6) Review and revision

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The Administrator shall review, and revise as necessary (taking into account developments 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 interpreted, construed or applied to

diminish or replace the requirements of a more stringent emission limitation or other applicable requirement 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 Administrator shall promulgate regulations establishing emission standards under

paragraphs (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 equivalent) luting compounds to prevent door leaks, and other operating practices and

technologies for their effectiveness in reducing coke oven emissions, and their suitability 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 technologies, and other appropriate emission control and coke production technologies, as to their effectiveness

in reducing coke oven emissions and their capability for production 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 seconds visible emissions per charge, with no exclusion for

emissions during the period after the closing of self-sealing oven doors. Notwithstanding 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 subsection for coke oven batteries requiring,

as appropriate-(i) the use of sodium silicate (or equivalent) 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 compliance date for such work practice regulations for coke oven batteries shall be not

later than the date 3 years after November 15, 1990.

subsection (f) in accordance with subsection (i)(8), the emission standards under this subsection for coke oven batteries shall

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require that coke oven batteries not exceed 8 per centum leaking doors, 1 per centum leaking lids, 5 per centum leaking

offtakes, and 16 seconds visible emissions per charge, with no exclusion for emissions during the period after the closing of

self-sealing doors. Notwithstanding subsection (i), the compliance date for such emission standards for existing coke oven

batteries seeking an extension shall be not later than the date 3 years after November 15, 1990.

(9) Sources licensed by the Nuclear Regulatory Commission

No standard for radionuclide emissions from any category or subcategory of facilities licensed by the Nuclear Regulatory

Commission (or an Agreement State) is required to be promulgated under this section if the Administrator determines, by

rule, and after consultation with the Nuclear Regulatory Commission, that the regulatory program established by the Nuclear

Regulatory Commission pursuant to the Atomic Energy Act for such category or subcategory provides an ample margin

of safety to protect the public health. Nothing in this subsection shall preclude or deny the right of any State or political

subdivision thereof to adopt or enforce any standard or limitation respecting emissions 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 promulgated under this subsection shall be effective upon promulgation.

(e) Schedule for standards and review

(1) In general

The Administrator shall promulgate regulations establishing emission standards for categories 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 batteries shall be promulgated not later than December 31, 1992;

4 years after November 15, 1990;

(D) emission standards for an additional 25 per centum of the listed categories and subcategories 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

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In determining priorities for promulgating standards under subsection (d), the Administrator shall consider-(A) the known or anticipated adverse effects of such pollutants on public health and the environment;

(B) the quantity and location of emissions or reasonably anticipated emissions of hazardous air pollutants that each category

or subcategory will emit; and

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 establishing a date for the promulgation of emission standards for each category and subcategory of sources

listed pursuant to subsection (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 subsection (c) shall be a final agency action subject 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 standards pursuant to subsection (d) applicable to publicly owned treatment works (as

defined in title II of the Federal Water Pollution Control Act) 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 comment, to Congress on-(A) methods of calculating the risk to public health remaining, or likely to remain, from sources subject to regulation under

this section after the application of standards under subsection (d);

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(B) the public health significance of such estimated remaining risk and the technologically and commercially available

methods 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 background concentrations of hazardous air pollutants, any uncertainties in risk

assessment methodology or other health assessment technique, and any negative health or environmental consequences to

the community of efforts to reduce such risks; and

(D) recommendations as to legislation regarding such remaining risk.

(2) Emission standards

(A) If Congress does not act on any recommendation submitted under paragraph (1), the Administrator shall, within 8

years after promulgation of standards for each category or subcategory of sources pursuant to subsection (d), promulgate

standards for such category or subcategory if promulgation of such 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, safety, and other relevant factors, an adverse environmental effect. Emission standards

promulgated 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 Administrator determines that a more stringent standard is

necessary to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental

effect. 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 promulgate standards under this subsection for such source category.

(B) Nothing in subparagraph (A) or in any other provision of this section shall be construed as affecting, or applying to the

Administrator'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).

promulgate 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 subsection (d) to make the determination under the preceding sentence and, if

required, to promulgate the standards under this paragraph.

(3) Effective date

Any emission standard established pursuant to this subsection shall become effective upon promulgation.

(4) Prohibition

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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 Administrator 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 subsection (c)(3) and for which an

emission standard is promulgated pursuant to subsection (d)(5).

(6) Unique chemical substances

In establishing standards for the control of unique chemical substances of listed pollutants without CAS numbers under

this subsection, the Administrator shall establish such standards with respect to the health and environmental effects of

the substances actually emitted by sources and direct transformation 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 pollutant shall not be considered a modification, if such increase in the quantity

of actual emissions of any hazardous air pollutant from such source will be offset by an equal or greater decrease 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 Administrator 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, publish 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) sufficient to facilitate the offset showing authorized by subparagraph (A). Such guidance shall not

authorize offsets between pollutants where the increased pollutant (or more than one pollutant in a stream of pollutants) causes

adverse effects to human health for which no safety threshold for exposure can be determined unless there are corresponding

decreases in such types of pollutant(s).

(2) Construction, reconstruction and modifications

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(A) After the effective date of a permit program under subchapter V in any State, no person may modify a major source

of hazardous air pollutants in such State, unless the Administrator (or the State) determines that the maximum achievable

control technology emission limitation under this section for existing sources will be met. Such determination shall be made

on a case-by-case basis where no applicable emissions limitations have been established by the Administrator.

(B) After the effective date of a permit program under subchapter V in any State, no person 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 applicable emission limitations have been established by the Administrator.

(3) Procedures for modifications

The Administrator (or the State) shall establish reasonable procedures for assuring that the requirements applying to

modifications under this section are reflected in the permit.

(h) Work practice standards and other requirements

(1) In general

For purposes of this section, if it is not feasible in the judgment of the Administrator to prescribe or enforce an emission

standard for control of a hazardous air pollutant or pollutants, the Administrator may, in lieu thereof, promulgate a design,

equipment, work practice, or operational standard, or combination thereof, which in the Administrator's judgment is consistent

with the provisions of subsection (d) or (f). In the event the Administrator promulgates a design or equipment standard under

this subsection, the Administrator shall include as part of such standard such requirements as will assure the proper operation

and maintenance of any such element 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 designed and constructed to emit or

capture such pollutant, or that any requirement for, or use of, such a conveyance would be inconsistent with any Federal,

State or local law, or

(B) the application of measurement methodology to a particular class of sources is not practicable due to technological

and economic limitations.

(3) Alternative standard

If after notice and opportunity for comment, the owner or operator of any source establishes to the satisfaction of the

Administrator that an alternative means of emission limitation will achieve a reduction in emissions of any air pollutant

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at least equivalent to the reduction 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 emission standard whenever it is feasible

to promulgate and enforce a standard in such terms.

(i) Schedule for compliance

(1) Preconstruction and operating requirements

After the effective date of any emission standard, limitation, or regulation under subsection (d), (f) or (h), no person may

construct any new major source or reconstruct any existing major source subject to such emission standard, regulation or

limitation unless the Administrator (or a State with a permit program approved under subchapter V) determines that such

source, if properly constructed, reconstructed and operated, will comply with the standard, regulation or limitation.

(2) Special rule

Notwithstanding the requirements of paragraph (1), a new source which commences construction 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 promulgated 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

promulgation.

(3) Compliance schedule for existing sources

(A) After the effective date of any emissions standard, limitation or regulation promulgated under this section and applicable

to a source, no person may operate such source in violation of such standard, limitation or regulation 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, except as provided in subparagraph (B) and paragraphs (4) through (8).

(B) The Administrator (or a State with a program approved under subchapter V) may issue a permit that grants an extension

permitting an existing source up to 1 additional year to comply with standards under subsection (d) if such additional period is

necessary for the installation of controls. An additional extension of up to 3 years may be added for mining waste operations,

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if the 4-year compliance time is insufficient to dry and cover mining waste in order to reduce emissions of any pollutant

listed under subsection (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 determines 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 paragraph may be extended

for 1 or more additional 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 operator 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 reflecting 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 before the otherwise applicable standard under subsection (d) is first

proposed. Nothing in this paragraph shall preclude a State from requiring reductions in excess of those specified in this

subparagraph as a condition of granting the extension authorized by the previous sentence.

(B) An existing source which achieves the reduction referred to in subparagraph (A) after the proposal of an applicable

standard but before January 1, 1994, may qualify under subparagraph (A), if the source makes an enforceable commitment

to achieve such reduction before the proposal of the standard. Such commitment shall be enforceable to the same extent 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 emissions in the base year are artificially or substantially greater than

emissions in other years prior to implementation of emissions reduction 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 emission 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 requirements promulgated pursuant to subsection (f) and the

Administrator shall, for the purpose of determining whether a standard under subsection (f) is necessary, review emissions

from sources granted an alternative emission limitation under this paragraph at the same time that other sources in the category

or subcategory 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

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offsetting reductions in emissions of other hazardous air pollutants from the source as counting toward the 90 per centum

reduction in such high-risk pollutants qualifying for an alternative emissions 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 section 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) controlled pursuant to an action described in subparagraph (A) or (B) shall be required to comply 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 reconstruction 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 required to achieve emission

limitations promulgated under subsection (f) until January 1, 2020.

(B)(i) Not later than December 31, 1992, the Administrator shall promulgate emission limitations 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-(I) 3 per centum leaking doors (5 per centum leaking doors for six meter batteries);

(II) 1 per centum leaking lids;

(III) 4 per centum leaking offtakes; and

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(IV) 16 seconds visible emissions per charge,

with an exclusion for emissions during the period after the closing of self-sealing oven doors (or the total mass emissions

equivalent). The rulemaking in which such emission limitations are promulgated shall also establish an appropriate

measurement methodology for determining compliance with such emission limitations, 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 leaking doors, shall take into consideration alternative test methods that reflect the best technology

and practices actually applied in the affected industries, and shall assure that the final test methods are consistent with the

performance of such best technology and practices.

(ii) If the Administrator fails to promulgate such emission limitations under this subparagraph prior to the effective date of

such emission limitations, the emission limitations applicable to coke oven batteries under this subparagraph shall be-(I) 3 per centum leaking doors (5 per centum 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 exclusion for emissions during the period after the closing of self-sealing oven doors.

(C) Not later than January 1, 2007, the Administrator shall review the emission limitations 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 existing

battery. Such emission limitations shall be no less stringent than the emission limitation promulgated under subparagraph

(B). Notwithstanding paragraph (2) of this subsection, 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 subsection (f) with respect to such coke oven battery 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 accordance with

subsection (f) for such coke oven battery.

(E) Coke oven batteries qualifying for an extension 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 Administrator to determine the

appropriate level of any emission standard established by the Administrator pursuant to subsection (f).

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(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 subsection (f) more stringent than

those established under subparagraphs (B) and (C) until January 1, 2020. For the purposes of this subparagraph, the term

“reconstruction” includes the replacement of existing coke oven battery capacity with new coke oven batteries of comparable

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 subcategory of major sources by the date

established pursuant to subsection (e)(1) and (3), and beginning 18 months after such date (but not prior to the effective date

of a permit program under subchapter V), the owner or operator of any major source in such category or subcategory shall

submit a permit application under paragraph (3) and such owner or operator 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 application for a permit

required by this subsection, any failure to have a permit shall not be a violation of paragraph (2), unless the delay in final

action is due to the failure of the applicant to timely submit information required or requested to process the application. The

Administrator shall not later than 18 months after November 15, 1990, and after notice and opportunity for comment, establish

requirements for applications under this subsection including a standard application form and criteria 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 disapproved according to the

provisions of section 7661d of this title. In the event that the Administrator (or the State) disapproves a permit application

submitted under this subsection 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 subchapter V and shall contain emission limitations 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 caseby-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

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emissions limitation established according to the provisions of subsection (i)(5). For purposes of the preceding sentence, the

reduction 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 emitted in amounts exceeding an emission limitation contained

in a permit immediately for new sources and, as expeditiously as practicable, 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 emission standard that is applicable to the major source prior to the date on which a

permit application is approved, the emission limitation in the permit shall reflect the promulgated standard rather than the

emission limitation determined pursuant to paragraph (5), provided that the source shall have the compliance 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 Administrator providing such source a reasonable 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), whichever is earlier.

(k) Area source program

(1) Findings and purpose

The Congress finds that emissions of hazardous air pollutants from area sources may individually, or in the aggregate, present

significant risks to public health in urban areas. Considering the large number of persons exposed and the risks of carcinogenic

and other adverse health effects from hazardous air pollutants, ambient concentrations characteristic of large urban areas

should be reduced to levels substantially below those currently 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

attributable to emissions from such sources.

(2) Research program

The Administrator shall, after consultation with State and local air pollution control officials, conduct a program of research

with respect to sources of hazardous air pollutants in urban areas and shall include within such program-(A) ambient monitoring for a broad range of hazardous air pollutants (including, but not limited to, volatile organic

compounds, metals, pesticides and products of incomplete combustion) in a representative number 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

pollutants.

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Health effects considered under this program shall include, but not be limited to, carcinogenicity, 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

research not later than 3 years after November 15, 1990.

(3) National strategy

(A) Considering information collected pursuant 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 comment, 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 number of urban areas and that are or will be listed pursuant to subsection (b), and

(ii) identify the source categories or subcategories emitting such pollutants that are or will be listed pursuant to subsection

(c). When identifying categories and subcategories 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 identified hazardous air

pollutants are subject to standards pursuant to subsection (d).

(C) The strategy shall include a schedule of specific actions to substantially reduce the public health risks posed by the

release of hazardous air pollutants from area sources that will be implemented by the Administrator under the authority of

this or other laws (including, but not limited to, the Toxic Substances Control Act, the Federal Insecticide, Fungicide and

Rodenticide Act and the Resource Conservation and Recovery Act) or by the States. The strategy shall achieve a reduction

in the incidence of cancer attributable to exposure to hazardous air pollutants emitted by stationary 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 interpreted to preclude or delay implementation of actions with respect to area sources

of hazardous air pollutants under consideration pursuant 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 assuring that all sources are in compliance

with all requirements not later than 9 years after November 15, 1990.

(G) As part of such strategy the Administrator shall provide for ambient monitoring and emissions modeling in urban areas

as appropriate to demonstrate that the goals and objectives of the strategy are being met.

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(4) Areawide activities

In addition to the national urban air toxics strategy authorized by paragraph (3), the Administrator 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 control officials, the Administrator shall prepare guidelines for control

technologies or management practices which may be applicable to various categories or subcategories of area sources.

(5) Report

The Administrator shall report to the Congress 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 pollutants from area sources. The reports shall also identify specific metropolitan areas that continue 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 requirements 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 Administrator's

authorities and responsibilities to implement 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 developing programs for submittal under this subsection. 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 Administrator 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 maintain an air toxics clearinghouse and center to provide technical information and

assistance to State and local agencies and, on a cost recovery 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

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organizations. The Administrator may conduct research on methods for preventing, measuring and controlling emissions

and evaluating 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 Administrator may make grants, subject to such terms and conditions as the Administrator

deems appropriate, to such State for the purpose of assisting the State in developing and implementing a program for submittal

and approval under this subsection. Programs assisted under this paragraph may include program elements addressing air

pollutants or extremely hazardous substances other than those specifically subject to this section. Grants under this paragraph

may include support for high-risk point source review as provided in paragraph (2) and support for the development and

implementation of areawide area source programs pursuant to subsection (k).

(5) Approval or disapproval

Not later than 180 days after receiving a program submitted by a State, and after notice and opportunity for public comment,

the Administrator shall either approve or disapprove such program. The Administrator shall disapprove any program

submitted by a State, if the Administrator determines that-(A) the authorities contained in the program are not adequate to assure compliance by all sources within the State with

each applicable standard, regulation or requirement established by the Administrator under this section;

(B) adequate authority does not exist, or adequate resources are not available, to implement the program;

(C) the schedule for implementing the program and assuring compliance by affected sources is not sufficiently expeditious;

(D) the program is otherwise not in compliance with the guidance issued by the Administrator under paragraph (2) or is

not likely to satisfy, in whole or in part, the objectives of this chapter.

If the Administrator disapproves a State program, the Administrator shall notify the State of any revisions or modifications

necessary to obtain approval. The State may revise and resubmit 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 administering 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.

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(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 opportunity for public comment, approve a program 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 approved program may take any action authorized to be taken by a State under this section.

(9) Permit authority

Nothing in this subsection shall affect the authorities and obligations of the Administrator 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 identify and assess the extent of atmospheric deposition of hazardous air pollutants (and in the discretion of the

Administrator, other air pollutants) 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 Chesapeake Bay, Lake Champlain and coastal waters, including monitoring of the Great

Lakes through the monitoring network established 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 pollutants (and their atmospheric

transformation precursors);

pollutants 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 pursuant to the Federal Water Pollution Control Act and drinking water standards established pursuant to the

Safe Drinking Water Act; and

(E) sample for such pollutants in biota, fish, and wildlife of the Great Lakes, the Chesapeake Bay, Lake Champlain and

coastal waters and characterize the sources of such pollutants.

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(2) Great Lakes monitoring network

The Administrator shall oversee, in accordance with Annex 15 of the Great Lakes Water Quality Agreement, the establishment

and operation of a Great Lakes atmospheric deposition network to monitor atmospheric deposition of hazardous air pollutants

(and in the Administrator's discretion, other air pollutants) 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 deposition 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 pollutants through the Great Lakes, to determine the portion of water pollution loadings attributable to atmospheric

deposition of such pollutants, and to support development of remedial action plans and other management plans as required

by the Great Lakes Water Quality Agreement.

is in a format compatible with databases sponsored by the International Joint Commission, 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 atmospheric deposition stations to monitor

deposition of hazardous air pollutants (and in the Administrator's discretion, other air pollutants) 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 characterize 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 relative

contribution of atmospheric pollutants to pollutant loadings. For purposes of this subsection, “coastal waters” shall mean

estuaries selected pursuant to section 320(a)(2)(A) of the Federal Water Pollution Control Act or listed pursuant to section

320(a)(2)(B) of such Act or estuarine research reserves designated pursuant to section 1461 of Title 16.

(5) Report

Within 3 years of November 15, 1990, and biennially thereafter, the Administrator, in cooperation with the Under Secretary

of Commerce for Oceans and Atmosphere, shall submit 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 assessment of--

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(A) the contribution of atmospheric deposition 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;

which is attributable to atmospheric deposition;

(D) whether pollution loadings in the Great Lakes, the Chesapeake Bay, Lake Champlain or coastal waters cause or

contribute to exceedances of drinking water standards pursuant to the Safe Drinking Water Act or water quality standards

pursuant to the Federal Water Pollution Control Act 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 requirements, standards, and limitations pursuant to this chapter and other

applicable Federal laws as are necessary to assure protection of human health and the environment.

(6) Additional regulation

As part of the report to Congress, the Administrator shall determine whether the other provisions of this section are adequate

to prevent serious adverse effects to public health and serious or widespread environmental effects, including such effects

resulting from indirect exposure pathways, associated with atmospheric 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 bioaccumulate. 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 standards or control measures as may be necessary and appropriate to prevent such effects, including effects

due to bioaccumulation and indirect 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 subject 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 anticipated to occur as a result

of emissions by electric utility steam generating units of pollutants listed under subsection (b) after imposition of the

requirements of this chapter. The Administrator shall report the results of this study to the Congress within 3 years after

November 15, 1990. The Administrator shall develop and describe in the Administrator's report 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 finds such regulation is appropriate and necessary after

considering the results of the study required by this subparagraph.

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(B) The Administrator shall conduct, and transmit to the Congress not later than 4 years after November 15, 1990, a study

of mercury 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 environmental effects

of such emissions, technologies which are available to control such emissions, and the costs of such technologies.

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 (including consumption by sensitive populations) without adverse effects to public health.

(2) Coke oven production technology study

(A) The Secretary of the Department of Energy and the Administrator shall jointly undertake a 6-year study to assess

coke oven production emission control technologies and to assist in the development and commercialization of technically

practicable and economically 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

Administrator 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 existing coke oven production design.

(B) The Secretary and the Administrator are authorized to enter into agreements with persons who propose to develop, install

and operate coke production emission control technologies which have the potential for significant 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 Secretary shall submit to Congress a report on the results of the study and shall make

recommendations to the Administrator identifying practicable and economically viable control technologies for coke oven

production facilities 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

authorized by this paragraph.

(3) Publicly owned treatment works

The Administrator may conduct, in cooperation with the owners and operators of publicly owned treatment works, studies to

characterize emissions of hazardous air pollutants emitted by such facilities, to identify industrial, commercial and residential

discharges that contribute to such emissions and to demonstrate control measures for such emissions. When promulgating any

standard under this section applicable to publicly owned treatment 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 sampling, modeling

and risk assessment methods for use in implementing this subsection.

(4) Oil and gas wells; pipeline facilities

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(A) Notwithstanding the provisions of subsection (a), emissions from any oil or gas exploration or production well (with its

associated equipment) and emissions from any pipeline compressor or pump station shall not be aggregated with emissions

from other similar units, whether or not such units are in a contiguous area or under common control, to determine whether

such units or stations are major sources, and in the case of any oil or gas exploration or production well (with its associated

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 metropolitan statistical area or consolidated metropolitan statistical area with a population in excess of 1

million, if the Administrator determines that emissions of hazardous air pollutants from such wells present more than a

negligible 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 sulfide associated with the extraction of oil and natural gas resources. To the extent practicable, the assessment

shall build upon and not duplicate work conducted for an assessment pursuant to section 8002(m) of the Solid Waste Disposal

Act and shall reflect consultation with the States. The assessment shall include a review of existing State and industry control

standards, techniques 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 recommendations, and shall, as appropriate, develop 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 authorities 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 of the country which do not have

comprehensive 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 appropriate.

(7) RCRA facilities

In the case of any category or subcategory of sources the air emissions of which are regulated under subtitle C of the Solid

Waste Disposal Act, the Administrator 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

requirements 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 arrangements with the National

Academy of Sciences to conduct a review of--

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(A) risk assessment methodology used by the Environmental Protection Agency to determine 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 humans of hazardous air pollutants; and

(B) the techniques used for estimating exposure to hazardous air pollutants (for hypothetical and actual maximally exposed

individuals 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, including, 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 Environment and Public Works, the

House Committee on Energy and Commerce, the Risk Assessment and Management Commission established 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 conduct tests, keep and produce records, and make reports respecting research or other activities 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

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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 promulgation of any standard under subsection (f), and after notice and opportunity for comment, 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 revised Guidelines shall be a final Agency action for purposes of section 7607 of this title.

(p) Mickey Leland National Urban Air Toxics Research Center

(1) Establishment

The Administrator shall oversee the establishment of a National Urban Air Toxics Research Center, to be located at a

university, a hospital, or other facility capable of undertaking and maintaining similar research capabilities 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 Directors to be comprised of 9 members,

the appointment 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 selected based on their respective academic and professional

backgrounds and expertise in matters relating to public health, environmental pollution and industrial hygiene. The duties

of the Board of Directors shall be to determine policy and research guidelines, submit 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 experience from the National Institute of Environmental Health Sciences, the Center for Disease

Control, the Environmental Protection Agency, the National Cancer Institute, and others, and the Panel shall conduct peer

review and evaluate research results. The Panel shall assist the Board in developing the research agenda, reviewing proposals

and applications, and advise on the awarding of research grants.

(4) Funding

The center shall be established and funded with both Federal and private source funds.

(q) Savings provision

(1) Standards previously promulgated

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Any standard under this section in effect before the date of enactment of the Clean Air Act Amendments of 1990 shall

remain in force and effect after such date unless modified as provided in this section before the date of enactment of such

Amendments 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 modified 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 standard shall be upheld if it complies with this section 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 effect 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) elemental phosphorous plants, (B) grate calcination 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, shall remain in effect for radionuclide emissions 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, shall remain in effect for radionuclide emissions from non-Department of Energy Federal facilities that are not licensed

by the Nuclear Regulatory Commission, coal-fired utility and industrial boilers, underground uranium mines, surface uranium

mines, and disposal of uranium mill tailings piles, unless the Administrator, in the Administrator'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 November 15, 1990, with respect to

medical research or treatment facilities shall take effect for two years following November 15, 1990, unless the Administrator

makes a determination pursuant to a rulemaking under subsection (d)(9). If the Administrator determines that the regulatory

program established by the Nuclear Regulatory Commission for such facilities does not provide an ample margin of safety

to protect public health, the requirements of this section shall fully apply to such facilities. 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 minimize 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

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which may result from such releases using appropriate 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 releases 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 substance 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).

(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 release

may occur.

(D) The term “retail facility” means a stationary 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 purposes of promulgating such list, the Administrator

shall use, but is not limited to, the list of extremely hazardous substances published under the Emergency Planning and

Community Right-to-Know 6 Act of 1986, with such modifications as the Administrator deems appropriate. The initial list

shall include chlorine, anhydrous ammonia, methyl chloride, ethylene oxide, vinyl chloride, methyl isocyanate, hydrogen

cyanide, ammonia, hydrogen sulfide, toluene diisocyanate, phosgene, bromine, anhydrous hydrogen chloride, hydrogen

fluoride, anhydrous 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 releases.

Regulations establishing the list shall include an explanation of the basis for establishing the list. The list may be revised

from time to time by the Administrator on the Administrator's own motion or by petition and shall be reviewed at least every

5 years. No air pollutant for which a national primary ambient air quality standard has been established shall be included

on any such list. No substance, practice, process, or activity regulated under subchapter VI shall be subject to regulations

under this subsection. The Administrator shall establish procedures for the addition 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--

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(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 substance; 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 unburned 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 establish by rule, a threshold quantity

for the substance, taking into account the toxicity, reactivity, volatility, dispersibility, combustibility, 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 independent safety board to be known as the Chemical Safety and Hazard Investigation

Board.

(B) The Board shall consist of 5 members, including 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 demonstrated knowledge in the fields of accident reconstruction, safety engineering, human factors, toxicology,

or air pollution regulation. The terms of office of members of the Board shall be 5 years. Any member of the Board, including

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 exercise the executive and administrative functions of the Board.

(C) The Board shall-(i) investigate (or cause to be investigated), determine and report to the public in writing the facts, conditions, and

circumstances and the cause or probable cause of any accidental release resulting in a fatality, serious injury or substantial

property damages;

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(ii) issue periodic reports to the Congress, Federal, State and local agencies, including the Environmental Protection Agency

and the Occupational Safety and Health Administration, concerned with the safety of chemical production, processing,

handling and storage, and other interested persons recommending measures to reduce the likelihood or the consequences

of accidental releases and proposing corrective steps to make chemical production, processing, handling 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 Secretary of Labor under the Occupational Safety

and Health Act 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 release; and

(iii) establish by regulation requirements binding on persons for reporting accidental releases into the ambient air subject

to the Board's investigatory jurisdiction. Reporting releases to the National Response Center, in lieu of the Board directly,

shall satisfy such regulations. The National Response Center shall promptly notify the Board of any releases which are

within the Board's jurisdiction.

(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 memorandum of understanding with

the National Transportation Safety Board to assure coordination of functions and to limit duplication of activities which shall

designate the National Transportation Safety Board as the lead agency 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 understanding with the Occupational Safety and

Health Administration so as to limit duplication 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 general public.

(F) The Board is authorized to conduct research and studies with respect to the potential for accidental releases, whether

or not an accidental release has occurred, where there is evidence which indicates the presence of a potential hazard or

hazards. To the extent practicable, the Board shall conduct such studies in cooperation with other Federal agencies having

emergency response authorities, State and local governmental agencies and associations 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 accompanied by recommendations

to the Administrator on the use of hazard assessments in preventing the occurrence and minimizing the consequences of

accidental releases of extremely hazardous substances. The recommendations shall include a list of extremely hazardous

substances which are not regulated substances (including threshold quantities for such substances) and categories of stationary

sources for which hazard assessments 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 include in any hazard assessment. The Board shall also make

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recommendations with respect to the role of risk management plans as required by paragraph (8)(B) 4 in preventing accidental

releases. The Board may from time to time review and revise its recommendations under this subparagraph.

(I) Whenever the Board submits a recommendation with respect to accidental releases to the Administrator, the Administrator

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 orders as are necessary to implement the recommendation in full or in part, pursuant

to any timetable contained in the recommendation; 7

(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 schedule contained in the recommendation, shall be

accompanied by a statement from the Administrator setting forth the reasons for such determination.

(J) The Board may make recommendations with respect to accidental releases to the Secretary of Labor. Whenever the Board

submits such recommendation, the Secretary 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 8 shall indicate whether

the Secretary will-(i) initiate a rulemaking or issue such orders as are necessary to implement the recommendation in full or in part, pursuant

to any timetable contained in the recommendation; 7

(ii) decline to initiate a rulemaking or issue orders as recommended.

Any determination by the Secretary not to implement a recommendation or to implement 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 Administrator of the Environmental

Protection Agency and to the Administrator of the Occupational Safety and Health Administration recommending the

adoption of regulations for the preparation of risk management plans and general requirements for the prevention of accidental

releases of regulated substances into the ambient air (including recommendations for listing substances under paragraph (3))

and for the mitigation of the potential adverse effect 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 threshold amounts. The

Board may include proposed rules or orders which should be issued by the Administrator under authority of this subsection

or by the Secretary of Labor under the Occupational Safety and Health Act. Any such recommendations shall be specific and

shall identify the regulated substance or class of regulated substances (or other substances) to which the recommendations

apply. The Administrator shall consider such recommendations before promulgating regulations required by paragraph (7)

(B).

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(L) The Board, or upon authority of the Board, any member thereof, any administrative law judge employed by or assigned

to the Board, or any officer or employee duly designated by the Board, may for the purpose of carrying out duties authorized

by subparagraph (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 production of evidence and may require by order that any person

engaged in the production, processing, handling, or storage of extremely hazardous substances submit written reports and

responses to requests and questions within such time and in such form as the Board may require; and

(ii) upon presenting appropriate credentials and a written notice of inspection authority, enter any property where an

accidental release causing a fatality, serious injury or substantial property damage has occurred and do all things therein

necessary for a proper investigation pursuant to subparagraph (C) and inspect at reasonable times records, files, papers,

processes, controls, and facilities and take such samples as are relevant to such investigation.

Whenever the Administrator or the Board conducts an inspection of a facility pursuant to this subsection, employees and

their representatives shall have the same rights to participate in such inspections as provided in the Occupational Safety

and Health Act.

(M) In addition to that described in subparagraph (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 contracts, leases,

cooperative agreements or other transactions as may be necessary in the conduct 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 subparagraph (C)(iii) it shall be unlawful

for any person to fail to report any release of any extremely hazardous substance as required by such subparagraph. The

Administrator is authorized to enforce any regulation or requirements 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 chapter, as a request

made by the Administrator under section 7414 of this title and may be enforced 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 (G) 5 and section 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 information, 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 section 1905 of Title 18, except that such record, report, or information may be disclosed to other officers, employees,

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and authorized representatives of the United States concerned with carrying out this chapter or when relevant under any

proceeding under this chapter. This subparagraph does not constitute authority to withhold records, reports, or information

from the Congress.

(R) Whenever the Board submits or transmits any budget estimate, budget request, supplemental budget request, or other

budget information, legislative recommendation, prepared 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 Board shall be subject to review by the Administrator

or any Federal agency or to judicial review in any court. No officer or agency of the United States shall have authority to

require the Board to submit its budget requests or estimates, legislative recommendations, prepared testimony, comments,

recommendations or reports to any officer or agency of the United States for approval or review prior to the submission of

such recommendations, testimony, comments or reports to the Congress. In the performance of their functions as established

by this chapter, the members, officers and employees of the Board shall not be responsible to or subject to supervision or

direction, 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 section shall affect

the application of Title 5 to officers 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, information on accidental releases which have been investigated by or reported to the Board during 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 implement such recommendations, an identification

of priorities for study and investigation in the succeeding year, progress in the development 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 authorized to promulgate release

prevention, detection, and correction requirements which may include monitoring, record-keeping, reporting, 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 including, but not limited to, the size, location, process, process controls,

quantity of substances handled, potency of substances, and response capabilities present at any stationary source. Regulations

promulgated pursuant to this subparagraph shall have an effective date, as determined by the Administrator, assuring

compliance as expeditiously as practicable.

(B)(i) Within 3 years after November 15, 1990, the Administrator shall promulgate reasonable regulations and appropriate

guidance to provide, to the greatest extent practicable, for the prevention and detection of accidental releases of regulated

substances and for response to such releases by the owners or operators of the sources of such releases. The Administrator

shall utilize the expertise of the Secretaries of Transportation and Labor in promulgating such regulations. As appropriate,

such regulations shall cover the use, operation, repair, replacement, and maintenance of equipment 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 measures for emergency response after an accidental

release of a regulated substance in order to protect human health and the environment. The regulations shall cover storage,

as well as operations. The regulations shall, as appropriate, recognize differences in size, operations, processes, class and

categories of sources and the voluntary actions of such sources to prevent such releases and respond to such releases. The

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regulations shall be applicable 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 stationary sources at which a regulated

substance 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 substances 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 potential 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 affected 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 releases;

(II) a program for preventing accidental releases of regulated substances, including safety precautions and maintenance,

monitoring and employee training measures to be used at the source; and

(III) a response program providing for specific actions to be taken in response to an accidental release of a regulated

substance so as to protect human health and the environment, including procedures for informing the public and local

agencies responsible for responding to accidental releases, emergency health care, and employee training measures.

At the time regulations are promulgated under this subparagraph, the Administrator shall promulgate guidelines to assist

stationary 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 stationary source covered by clause (ii) shall register a risk management plan prepared

under this subparagraph with the Administrator before the effective date of regulations under clause (i) in such form and

manner as the Administrator shall, by rule, require. Plans prepared pursuant to this subparagraph shall also be submitted to

the Chemical Safety and Hazard 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 regularly 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 required by the Administrator, by rule.

(C) Any regulations promulgated pursuant to this subsection shall to the maximum extent practicable, consistent with this

subsection, be consistent with the recommendations and standards established by the American 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 requirements under this paragraph with any requirements established for

comparable purposes by the Occupational Safety and Health Administration or the Department of Transportation. Nothing in

this subsection shall be interpreted, construed or applied to impose requirements affecting, or to grant the Administrator, the

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Chemical Safety and Hazard Investigation Board, or any other agency any authority to regulate (including requirements for

hazard assessment), the accidental release of radionuclides arising from the construction and operation of facilities licensed

by the Nuclear 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 regulation or requirement in violation of such regulation or requirement. Each

regulation or requirement under this subsection shall for purposes of sections 7413, 7414, 7416, 7420, 7604, and 7607 of this

title and other enforcement provisions of this chapter, be treated as a standard in effect under subsection (d).

(F) Notwithstanding the provisions of subchapter V or this section, no stationary source shall be required to apply for, or

operate pursuant to, a permit issued under such subchapter solely because such source is subject to regulations or requirements

under this subsection.

(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 regulations 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 Government;

(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 government;

(ee) an individual affiliated with an entity that has been given, by a State or local government, responsibility for

preventing, 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

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(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 preventing, planning for, or responding to accidental

releases.

(III) Off-site consequence analysis information

The term “off-site consequence 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 alternative

release scenarios, and any electronic data base created by the Administrator from those portions.

(IV) Risk management plan

The term “risk management plan” means a risk management plan submitted to the Administrator 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

analysis information on the Internet; and

(bb) the incentives created by public disclosure of off-site consequence analysis information for reduction in the risk

of accidental releases; and

(II) based on the assessment under subclause (I), promulgate regulations governing the distribution of off-site

consequence analysis information in a manner that, in the opinion of the President, minimizes 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 consequence analysis information for a

limited number of stationary sources located anywhere in the United States, without any geographical restriction;

(bb) allows other public access to off-site consequence analysis information as appropriate;

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(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 stationary 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 request to the Administrator, off-site

consequence analysis information that is not available to the person under item (cc).

(iii) Availability under freedom of information act

(I) First year

Off-site consequence analysis information, and any ranking of stationary sources derived from the information, shall

not be made available under section 552 of Title 5 during the 1-year period beginning on August 5, 1999.

(II) After first year

If the regulations under clause (ii) are promulgated on or before the end of the period described in subclause (I), offsite consequence analysis information covered by the regulations, and any ranking of stationary sources derived 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 Administrator before, on,

or after August 5, 1999.

(iv) Availability of information during transition period

The Administrator shall make off-site consequence analysis information available to covered persons for official use in a

manner that meets the requirements of items (cc)through (ee) of clause (ii)(II), and to the public in a form that does not

make available any information 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 disclosure of information by covered persons

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(I) In general

Beginning on August 5, 1999, a covered person shall not disclose to the public off-site consequence analysis

information in any form, or any statewide or national ranking of identified stationary sources derived from such

information, except 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

Notwithstanding section 7413 of this title, a covered person that willfully violates a restriction 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 unauthorized

disclosure of off-site consequence analysis information, except that subsection (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 disclosure of off-site consequence analysis information for each specific stationary source shall be considered

a separate offense. The total of all penalties that may be imposed on a single person or organization under this item

shall not exceed $1,000,000 for violations committed during any 1 calendar year.

(III) Applicability

If the owner or operator of a stationary source makes off-site consequence analysis information relating 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 availability of the information.

(IV) List

The Administrator shall maintain and make publicly available a list of all stationary sources that have provided

notification under subclause (III)(bb).

(vi) Notice

The Administrator shall provide 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 established 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 official use under the

regulations promulgated under clause (ii).

(vii) Qualified researchers

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(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 information, including facility

identification, 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, received 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 public of off-site consequence analysis

information 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 information may be made.

(ix) Voluntary industry accident prevention standards

The Environmental Protection Agency, the Department of Justice, and other appropriate agencies may provide technical

assistance to owners and operators of stationary sources and participate in the development of voluntary industry standards

that will help achieve the objectives set forth in paragraph (1).

(x) Effect on State or local law

(I) In general

Subject to subclause (II), this subparagraph (including the regulations promulgated under this subparagraph) shall

supersede any provision of State or local law that is inconsistent with this subparagraph (including the regulations).

(II) Availability of information under State law

Nothing in this subparagraph precludes a State from making available data on the off-site consequences of chemical

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 promulgated under this paragraph have resulted in actions, including the design and

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maintenance 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 Attorney General, using

available data to the extent possible, and a sampling of covered stationary sources selected at the discretion of the

Attorney General, and in consultation with appropriate State, local, and Federal governmental agencies, affected

industry, and the public, shall review the vulnerability of covered stationary sources to criminal and terrorist activity,

current industry practices regarding site security, and security of transportation of regulated substances. The Attorney

General shall submit this report, containing the results of the review, together with recommendations, if any, for

reducing vulnerability of covered stationary sources to criminal and terrorist activity, to the Committee on Commerce

of the United States House of Representatives 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 Environment and Public Works of the United

States Senate, and other relevant committees of Congress, an interim report that includes, 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 expected to occur that could cause the findings of the report under subclause (I)

to be different than the preliminary findings.

(III) Availability of information

Information that is developed by the Attorney General or requested by the Attorney General and received from a

covered stationary source for the purpose of conducting the review under subclauses(I) and (II) shall be exempt from

disclosure under section 552 of Title 5 if such information would pose a threat to national security.

(xii) Scope

This subparagraph-(I) applies only to covered persons; and

(II) does not restrict the dissemination of off-site consequence analysis information by any covered person in any manner

or form except in the form of a risk management plan or an electronic data base created by the Administrator from offsite consequence analysis information.

(xiii) Authorization of appropriations

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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 promulgated under clause (ii)), to remain available until expended.

(8) Research on hazard assessments

The Administrator may collect and publish information on accident scenarios and consequences 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 improving and

validating the procedures employed in the preparation of hazard assessments 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 danger 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 equities of the case may require. The Administrator 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 Administrator shall take action under section 7603 of this title rather than this

paragraph whenever the authority of such section is adequate to protect human health and the environment.

(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.

established by this paragraph. Such guidance shall provide for the coordinated use of the authorities of this paragraph 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, sections 3007, 3008, 3013, and 7003 of the Solid Waste Disposal Act, sections 1445 and 1431 of the

Safe Drinking Water Act, sections 5 and 7 of the Toxic Substances Control Act, and sections 7413, 7414, and 7603 of this title.

(10) Presidential review

The President shall conduct a review of release prevention, mitigation and response authorities of the various Federal

agencies and shall clarify and coordinate agency responsibilities to assure the most effective and efficient implementation

of such authorities and to identify any deficiencies in authority or resources which may exist. The President may utilize

the resources and solicit the recommendations 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, mitigation 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 authorize the President to modify or reassign release prevention, mitigation or response authorities

otherwise established by law.

(11) State authority

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§ 7412. Hazardous air pollutants, 42 USCA § 7412

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 standard (including any procedural requirement) that is more stringent than

a regulation, requirement, limitation or standard in effect under this subsection or that applies to a substance not subject to

this subsection.

(s) Periodic report

Not later than January 15, 1993 and every 3 years thereafter, the Administrator shall prepare and transmit to the Congress a

comprehensive report on the measures taken by the Agency and by the States to implement the provisions 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.

CREDIT(S)

(July 14, 1955, c. 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.)

MEMORANDA OF PRESIDENT

DELEGATION OF AUTHORITY TO REVIEW EMERGENCY RELEASE AUTHORITIES AND

PREPARE AND TRANSMIT TO THE CONGRESS A MESSAGE CONCERNING SUCH AUTHORITIES

<Aug. 19, 1993, 58 F.R. 52397>

Memorandum for the Administrator of the Environmental 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)) [set out as a note under section 9615 of this

title], and other Federal agencies and departments undertake 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) [subsec. (r)(10) of this

54a

§ 7412. Hazardous air pollutants, 42 USCA § 7412

section] and section 301 of title 3 of the United States Code [section 301 of Title 3, The President], and in order to provide for

the delegation of certain functions under the Act [42 U.S.C.A. § 7401 et seq.], I hereby:

(1) Authorize you, in coordination with agencies and departments that are members of the National Response Team and other

appropriate agencies and departments, to conduct a review of release prevention, mitigation, and response authorities of Federal

agencies 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 Response Team and other

appropriate agencies and departments, to prepare and transmit a message to the Congress concerning the release prevention,

mitigation, and response activities of the Federal Government with such recommendations for change in law as you deem

appropriate, to the extent such message is required by section 112(r)(10) of the Act.

The authority delegated by this memorandum may be further redelegated within the Environmental Protection Agency.

You are hereby authorized and directed to publish this memorandum in the Federal Register.

WILLIAM J. CLINTON

DELEGATION OF AUTHORITY TO CONDUCT ASSESSMENTS AND PROMULGATE

REGULATIONS ON PUBLIC ACCESS

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