Emergency Application — America's Power, et al., Applicants v. Environmental Protection Agency, et al.

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TABLE OF CONTENTS

APPENDIX A

Order Denying Stay Pending Review

No. 24-1119 (D.C. Cir. Aug. 6, 2024) ......................................................................App.1

APPENDIX B

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

APPENDIX C

Excerpts of Oral Argument Transcript,

Michigan v. EPA, No. 14-46 ............................................................................App.34

APPENDIX A

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

App.1

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:

Page 2

App.2

/s/

Selena R. Gancasz

Deputy Clerk

APPENDIX B

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1978—Subsecs. (d)(1)(A)(ii), (g)(4)(B). Pub. L. 95–623,

§ 13(a)(2), substituted ‘‘under this section’’ for ‘‘under

subsection (b) of this section’’.

Subsec. (h)(5). Pub. L. 95–623, § 13(a)(1), added par. (5).

Subsec. (j). Pub. L. 95–623, § 13(a)(3), substituted in

pars. (1)(A) and (2)(A) ‘‘standards under this section’’

and ‘‘under this section’’ for ‘‘standards under subsection (b) of this section’’ and ‘‘under subsection (b) of

this section’’, respectively.

1977—Subsec. (a)(1). Pub. L. 95–95, § 109(c)(1)(A), added

subpars. (A), (B), and (C), substituted ‘‘For the purpose

of subparagraphs (A)(i) and (ii) and (B), a standard of

performance shall reflect’’ for ‘‘a standard for emissions of air pollutants which reflects’’, ‘‘and the percentage reduction achievable’’ for ‘‘achievable’’, and

‘‘technological system of continuous emission reduction which (taking into consideration the cost of

achieving such emission reduction, and any nonair

quality health and environment impact and energy requirements)’’ for ‘‘system of emission reduction which

(taking into account the cost of achieving such reduction)’’ in existing provisions, and inserted provision

that, for the purpose of subparagraph (1)(A)(ii), any

cleaning of the fuel or reduction in the pollution characteristics of the fuel after extraction and prior to

combustion may be credited, as determined under regulations promulgated by the Administrator, to a source

which burns such fuel.

Subsec. (a)(7). Pub. L. 95–95, § 109(c)(1)(B), added par.

(7) defining ‘‘technological system of continuous emission reduction’’.

Pub. L. 95–95, § 109(f), added par. (7) directing that

under certain circumstances a conversion to coal not

be deemed a modification for purposes of pars. (2) and

(4).

Subsec. (a)(7), (8). Pub. L. 95–190, § 14(a)(7), redesignated second par. (7) as (8).

Subsec. (b)(1)(A). Pub. L. 95–95, § 401(b), substituted

‘‘such list if in his judgment it causes, or contributes

significantly to, air pollution which may reasonably be

anticipated to endanger’’ for ‘‘such list if he determines

it may contribute significantly to air pollution which

causes or contributes to the endangerment of’’.

Subsec. (b)(1)(B). Pub. L. 95–95, § 109(c)(2), substituted

‘‘shall, at least every four years, review and, if appropriate,’’ for ‘‘may, from time to time,’’.

Subsec. (b)(5), (6). Pub. L. 95–95, § 109(c)(3), added pars.

(5) and (6).

Subsec. (c)(1). Pub. L. 95–95, § 109(d)(1), struck out

‘‘(except with respect to new sources owned or operated

by the United States)’’ after ‘‘implement and enforce

such standards’’.

Subsec. (d)(1). Pub. L. 95–95, § 109(b)(1), substituted

‘‘standards of performance’’ for ‘‘emission standards’’

and inserted provisions directing that regulations of

the Administrator permit the State, in applying a

standard of performance to any particular source under

a submitted plan, to take into consideration, among

other factors, the remaining useful life of the existing

source to which the standard applies.

Subsec. (d)(2). Pub. L. 95–95, § 109(b)(2), provided that,

in promulgating a standard of performance under a

plan, the Administrator take into consideration,

among other factors, the remaining useful lives of the

sources in the category of sources to which the standard applies.

Subsecs. (f) to (i). Pub. L. 95–95, § 109(a), added subsecs. (f) to (i).

Subsecs. (j), (k). Pub. L. 95–190, § 14(a)(8), (9), redesignated subsec. (k) as (j) and, as so redesignated, substituted ‘‘(B)’’ for ‘‘(8)’’ as designation for second subpar. in par. (2). Former subsec. (j), added by Pub. L.

95–95, § 109(e), which related to compliance with applicable standards of performance, was struck out.

Pub. L. 95–95, § 109(e), added subsec. (k).

1971—Subsec. (b)(1)(B). Pub. L. 92–157 substituted in

first sentence ‘‘publish proposed’’ for ‘‘propose’’.

EFFECTIVE DATE OF 1977 AMENDMENT

Amendment by Pub. L. 95–95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d)

Page 6244

of Pub. L. 95–95, set out as a note under section 7401 of

this title.

REGULATIONS

Section 403(b), (c) of Pub. L. 101–549 provided that:

‘‘(b) REVISED REGULATIONS.—Not later than three

years after the date of enactment of the Clean Air Act

Amendments of 1990 [Nov. 15, 1990], the Administrator

shall promulgate revised regulations for standards of

performance for new fossil fuel fired electric utility

units commencing construction after the date on which

such regulations are proposed that, at a minimum, require any source subject to such revised standards to

emit sulfur dioxide at a rate not greater than would

have resulted from compliance by such source with the

applicable standards of performance under this section

[amending sections 7411 and 7479 of this title] prior to

such revision.

‘‘(c) APPLICABILITY.—The provisions of subsections (a)

[amending this section] and (b) apply only so long as

the provisions of section 403(e) of the Clean Air Act [42

U.S.C. 7651b(e)] remain in effect.’’

TRANSFER OF FUNCTIONS

Enforcement functions of Administrator or other official in Environmental Protection Agency related to

compliance with new source performance standards

under this section with respect to pre-construction,

construction, and initial operation of transportation

system for Canadian and Alaskan natural gas transferred to Federal Inspector, Office of Federal Inspector

for the Alaska Natural Gas Transportation System,

until first anniversary of date of initial operation of

Alaska Natural Gas Transportation System, see Reorg.

Plan No. 1 of 1979, eff. July 1, 1979, §§ 102(a), 203(a), 44

F.R. 33663, 33666, 93 Stat. 1373, 1376, set out in the Appendix to Title 5, Government Organization and Employees. Office of Federal Inspector for the Alaska Natural Gas Transportation System abolished and functions and authority vested in Inspector transferred to

Secretary of Energy by section 3012(b) of Pub. L.

102–486, set out as an Abolition of Office of Federal Inspector note under section 719e of Title 15, Commerce

and Trade. Functions and authority vested in Secretary of Energy subsequently transferred to Federal

Coordinator for Alaska Natural Gas Transportation

Projects by section 720d(f) of Title 15.

PENDING ACTIONS AND PROCEEDINGS

Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other

officer or employee of the United States in his official

capacity or in relation to the discharge of his official

duties under act July 14, 1955, the Clean Air Act, as in

effect immediately prior to the enactment of Pub. L.

95–95 [Aug. 7, 1977], not to abate by reason of the taking

effect of Pub. L. 95–95, see section 406(a) of Pub. L.

95–95, set out as an Effective Date of 1977 Amendment

note under section 7401 of this title.

MODIFICATION OR RESCISSION OF RULES, REGULATIONS,

ORDERS,

DETERMINATIONS,

CONTRACTS,

CERTIFICATIONS, AUTHORIZATIONS, DELEGATIONS, AND OTHER

ACTIONS

All rules, regulations, orders, determinations, contracts, certifications, authorizations, delegations, or

other actions duly issued, made, or taken by or pursuant to act July 14, 1955, the Clean Air Act, as in effect

immediately prior to the date of enactment of Pub. L.

95–95 [Aug. 7, 1977] to continue in full force and effect

until modified or rescinded in accordance with act July

14, 1955, as amended by Pub. L. 95–95 [this chapter], see

section 406(b) of Pub. L. 95–95, set out as an Effective

Date of 1977 Amendment note under section 7401 of this

title.

§ 7412. Hazardous air pollutants

(a) Definitions

For purposes of this section, except subsection

(r) of this section—

App.3

Page 6245

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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 of this chapter.

(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

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) of this section.

(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 one-third of its potential electric output capacity and more than 25

§ 7412

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.1 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

75070

60355

75058

98862

53963

107028

79061

79107

107131

107051

92671

62533

90040

1332214

71432

92875

98077

100447

92524

117817

542881

75252

106990

156627

105602

133062

63252

75150

56235

463581

120809

133904

57749

7782505

79118

532274

108907

510156

67663

107302

126998

1319773

95487

Chemical name

Acetaldehyde

Acetamide

Acetonitrile

Acetophenone

2-Acetylaminofluorene

Acrolein

Acrylamide

Acrylic acid

Acrylonitrile

Allyl chloride

4-Aminobiphenyl

Aniline

o-Anisidine

Asbestos

Benzene (including benzene from gasoline)

Benzidine

Benzotrichloride

Benzyl chloride

Biphenyl

Bis(2-ethylhexyl)phthalate (DEHP)

Bis(chloromethyl)ether

Bromoform

1,3-Butadiene

Calcium cyanamide

Caprolactam

Captan

Carbaryl

Carbon disulfide

Carbon tetrachloride

Carbonyl sulfide

Catechol

Chloramben

Chlordane

Chlorine

Chloroacetic acid

2-Chloroacetophenone

Chlorobenzene

Chlorobenzilate

Chloroform

Chloromethyl methyl ether

Chloroprene

Cresols/Cresylic acid (isomers and mixture)

o-Cresol

1 See References in Text note below.

App.4

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

CAS

number

CAS

number

Chemical name

108394

106445

98828

94757

3547044

334883

132649

96128

84742

106467

91941

111444

542756

62737

111422

121697

64675

119904

60117

119937

79447

68122

57147

131113

77781

534521

51285

121142

123911

122667

106898

106887

140885

100414

51796

75003

106934

107062

107211

151564

75218

96457

75343

50000

76448

118741

87683

77474

67721

822060

680319

110543

302012

7647010

7664393

123319

78591

58899

108316

67561

72435

74839

74873

71556

78933

60344

74884

108101

624839

80626

1634044

101144

75092

101688

101779

91203

98953

m-Cresol

p-Cresol

Cumene

2,4-D, salts and esters

DDE

Diazomethane

Dibenzofurans

1,2-Dibromo-3-chloropropane

Dibutylphthalate

1,4-Dichlorobenzene(p)

3,3-Dichlorobenzidene

Dichloroethyl ether (Bis(2-chloroethyl)ether)

1,3-Dichloropropene

Dichlorvos

Diethanolamine

N,N-Diethyl aniline (N,N-Dimethylaniline)

Diethyl sulfate

3,3-Dimethoxybenzidine

Dimethyl aminoazobenzene

3,3′-Dimethyl benzidine

Dimethyl carbamoyl chloride

Dimethyl formamide

1,1-Dimethyl hydrazine

Dimethyl phthalate

Dimethyl sulfate

4,6-Dinitro-o-cresol, and salts

2,4-Dinitrophenol

2,4-Dinitrotoluene

1,4-Dioxane (1,4-Diethyleneoxide)

1,2-Diphenylhydrazine

Epichlorohydrin (l-Chloro-2,3-epoxypropane)

1,2-Epoxybutane

Ethyl acrylate

Ethyl benzene

Ethyl carbamate (Urethane)

Ethyl chloride (Chloroethane)

Ethylene dibromide (Dibromoethane)

Ethylene dichloride (1,2-Dichloroethane)

Ethylene glycol

Ethylene imine (Aziridine)

Ethylene oxide

Ethylene thiourea

Ethylidene dichloride (1,1-Dichloroethane)

Formaldehyde

Heptachlor

Hexachlorobenzene

Hexachlorobutadiene

Hexachlorocyclopentadiene

Hexachloroethane

Hexamethylene-1,6-diisocyanate

Hexamethylphosphoramide

Hexane

Hydrazine

Hydrochloric acid

Hydrogen fluoride (Hydrofluoric acid)

Hydroquinone

Isophorone

Lindane (all isomers)

Maleic anhydride

Methanol

Methoxychlor

Methyl bromide (Bromomethane)

Methyl chloride (Chloromethane)

Methyl chloroform (1,1,1-Trichloroethane)

Methyl ethyl ketone (2-Butanone)

Methyl hydrazine

Methyl iodide (Iodomethane)

Methyl isobutyl ketone (Hexone)

Methyl isocyanate

Methyl methacrylate

Methyl tert butyl ether

4,4-Methylene bis(2-chloroaniline)

Methylene chloride (Dichloromethane)

Methylene diphenyl diisocyanate (MDI)

4,4′-Methylenedianiline

Naphthalene

Nitrobenzene

92933

100027

79469

684935

62759

59892

56382

82688

87865

108952

106503

75445

7803512

7723140

85449

1336363

1120714

57578

123386

114261

78875

75569

75558

91225

106514

100425

96093

1746016

79345

127184

7550450

108883

95807

584849

95534

8001352

120821

79005

79016

95954

88062

121448

1582098

540841

108054

593602

75014

75354

1330207

95476

108383

106423

Page 6246

Chemical name

4-Nitrobiphenyl

4-Nitrophenol

2-Nitropropane

N-Nitroso-N-methylurea

N-Nitrosodimethylamine

N-Nitrosomorpholine

Parathion

Pentachloronitrobenzene (Quintobenzene)

Pentachlorophenol

Phenol

p-Phenylenediamine

Phosgene

Phosphine

Phosphorus

Phthalic anhydride

Polychlorinated biphenyls (Aroclors)

1,3-Propane sultone

beta-Propiolactone

Propionaldehyde

Propoxur (Baygon)

Propylene dichloride (1,2-Dichloropropane)

Propylene oxide

1,2-Propylenimine (2-Methyl aziridine)

Quinoline

Quinone

Styrene

Styrene oxide

2,3,7,8-Tetrachlorodibenzo-p-dioxin

1,1,2,2-Tetrachloroethane

Tetrachloroethylene (Perchloroethylene)

Titanium tetrachloride

Toluene

2,4-Toluene diamine

2,4-Toluene diisocyanate

o-Toluidine

Toxaphene (chlorinated camphene)

1,2,4-Trichlorobenzene

1,1,2-Trichloroethane

Trichloroethylene

2,4,5-Trichlorophenol

2,4,6-Trichlorophenol

Triethylamine

Trifluralin

2,2,4-Trimethylpentane

Vinyl acetate

Vinyl bromide

Vinyl chloride

Vinylidene chloride (1,1-Dichloroethylene)

Xylenes (isomers and mixture)

o-Xylenes

m-Xylenes

p-Xylenes

Antimony Compounds

Arsenic Compounds (inorganic including arsine)

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.

App.5

Page 6247

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1 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)Q–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)Q–OH.

Polymers are excluded from the glycol category.

3 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.

4 Includes organic compounds with more than one

benzene ring, and which have a boiling point greater

than or equal to 100oC.

5 A type of atom which spontaneously undergoes

radioactive decay.

(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) of this section 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 2 of the pollutant or other

evidence adequate to support the petition. The

Administrator may not deny a petition solely

2 So in original. Probably should be ‘‘effects’’.

§ 7412

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) of this section applicable to any

source category or subcategory of a listed hazardous air pollutant without a CAS number

listed under subsection (b) of this section for

which a deletion petition has been filed within

12 months of November 15, 1990.

(4) Further information

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 of this subchapter

(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

App.6

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) of this section. 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 of this subchapter. 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) of this section, according to the schedule in

this subsection and subsection (e) of this section.

(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) of

this section, 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.

(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) of this

section 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,

Page 6248

mercury, polychlorinated biphenyls, 2,3,7,8tetrachlorodibenzofurans

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) of

this section. 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) of this section.

(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

App.7

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) of

this section in accordance with the schedules

provided in subsections (c) and (e) of this section. 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) of this section 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,

storage or fugitive emissions point,

(D) are design, equipment, work practice,

or operational standards (including requirements for operator training or certification)

as provided in subsection (h) of this section,

(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

§ 7412

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) of this section, the Administrator may, in lieu of the authorities provided

in paragraph (2) and subsection (f) of this section, 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

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 of this subchapter, or

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§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) of this section, 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) of this section,

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.

standards promulgated under subsection (f) of

this section in accordance with subsection

(i)(8) of this section, the emission standards

under this subsection for coke oven batteries

shall 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.

Page 6250

Notwithstanding subsection (i) of this section,

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 [42 U.S.C. 2011 et

seq.] 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) of this section 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;

the listed categories and subcategories shall

be promulgated not later than 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

In determining priorities for promulgating

standards under subsection (d) of this section,

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

App.9

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

subcategories according to the pollutants

emitted, or the processes or 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) of this section 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) of this section

or listing a source category or subcategory

under subsection (c) of this section 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) of this section

applicable to publicly owned treatment works

(as defined in title II of the Federal Water Pollution Control Act [33 U.S.C. 1281 et seq.]) 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) of this section;

(B) the public health significance of such

estimated remaining risk and the technologically and commercially available methods and costs of reducing such risks;

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.

§ 7412

(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) of this section, 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) of this section 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).

whether or not to promulgate such standards

and, if the Administrator decides to promulgate such standards, shall promulgate the

standards 8 years after promulgation of the

standards under subsection (d) of this section

for each source category or subcategory concerned. In the case of categories or subcategories for which standards under subsection (d) of this section 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) of this section 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

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

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§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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) of this section and for which an

emission standard is promulgated pursuant to

subsection (d)(5) of this section.

(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) of

this section 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

(A) After the effective date of a permit program under subchapter V of this chapter in

Page 6252

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 of this chapter 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 caseby-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) of this section. 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,

(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 limita-

App.11

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

tion will achieve a reduction in emissions of

any air pollutant 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) of this section, 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 of this chapter) 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 of this

chapter) may issue a permit that grants an extension permitting an existing source up to 1

additional year to comply with standards

under subsection (d) of this section if such additional period is necessary for the installa-

§ 7412

tion of controls. An additional extension of up

to 3 years may be added for mining waste operations, 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) of this section.

(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 of this chapter) 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) of this section 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) of this

section 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.

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

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§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

there shall be established by a permit issued

pursuant to subchapter V of this chapter 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) of this section and the

Administrator shall, for the purpose of determining whether a standard under subsection

(f) of this section 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 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) of this section but before the date an emission standard

applicable to such source is proposed pursuant

to subsection (f) of this section shall not be required to comply with the emission standard

under subsection (f) of this section 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) of this section, 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) of

this section until January 1, 2020.

Page 6254

(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

(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

App.13

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) of this section 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) of this section

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) of this section 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) of this

section.

(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) of this section more stringent than

those established under subparagraphs (B) and

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 of this chapter 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) of

this section, and beginning 18 months after

such date (but not prior to the effective date

of a permit program under subchapter V of

this chapter), 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

§ 7412

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 of this chapter 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

case-by-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) of this

section. In the alternative, if the applicable

criteria are met, the permit may contain an

emissions limitation established according to

the provisions of subsection (i)(5) of this section. For purposes of the preceding sentence,

the reduction required by subsection (i)(5)(A)

of this section shall be achieved by the date on

which the relevant standard should have been

promulgated under subsection (d) of this section. 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) of this section.

(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) of

this section. If the Administrator promulgates

a standard under subsection (d) of this section

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 Admin-

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

istrator (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

(C) consideration of atmospheric transformation and other factors which can elevate public health risks from such pollutants.

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

Page 6256

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) of this section, and

(ii) identify the source categories or subcategories emitting such pollutants that are

or will be listed pursuant to subsection (c) of

this section. 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) of this section.

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 [15 U.S.C. 2601 et seq.], the

Federal Insecticide, Fungicide and Rodenticide Act [7 U.S.C. 136 et seq.] and the Resource Conservation and Recovery Act [42

U.S.C. 6901 et seq.]) 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.

(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

App.15

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

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) of this section. 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) of this section

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) of this section.

(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

§ 7412

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

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) of this section.

(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;

sources is not sufficiently expeditious; or

(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

App.16

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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.

(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 of this

chapter.

(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);

the relative contribution of atmospheric 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 [33 U.S.C. 1251 et seq.] and drinking

Page 6258

water standards established pursuant to the

Safe Drinking Water Act [42 U.S.C. 300f et

seq.]; 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.

(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.

the data collected by the Great Lakes atmospheric deposition monitoring network 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

App.17

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

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 [33 U.S.C.

1330(a)(2)(A)] or listed pursuant to section

320(a)(2)(B) of such Act [33 U.S.C. 1330(a)(2)(B)]

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—

(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;

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 [42 U.S.C. 300f et seq.] or water

quality standards pursuant to the Federal

Water Pollution Control Act [33 U.S.C. 1251

et seq.] 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

§ 7412

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) of this section 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.

(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.

Health Sciences shall conduct, and transmit

to the Congress not later than 3 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 signifi-

App.18

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

cant 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.

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) of this section.

(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

(A) Notwithstanding the provisions of subsection (a) of this section, 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) of this section, 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 sul-

Page 6260

fide 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 [42 U.S.C. 6982(m)] 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 [42 U.S.C. 6921 et seq.], 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—

(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

3 So in original. Probably should be ‘‘section’’.

App.19

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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

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) of

this section, 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,

§ 7412

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

Any standard under this section in effect before the date of enactment of the Clean Air

Act Amendments of 1990 [November 15, 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) of this section within 10 years

after the date of enactment of the Clean Air

Act Amendments of 1990. If a timely petition

App.20

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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 [November 15, 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 [November 15, 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) of this section. 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) of this section.

(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)

Page 6262

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 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).

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 4 Act of 1986 [42 U.S.C.

11001 et seq.], 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,

4 So in original. Probably should be ‘‘Right-To-Know’’.

App.21

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

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 of this chapter 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) of this section.

(4) Factors to be considered

In listing substances under paragraph (3),

the Administrator—

(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

§ 7412

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.

(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;

(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 [29 U.S.C. 651 et seq.]

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

App.22

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

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

recommendations with respect to the role of

risk management plans as required by paragraph (8)(B) 5 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; 6

(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

5 So in original. Probably should be paragraph ‘‘(7)(B)’’.

6 So in original. The word ‘‘or’’ probably should appear.

Page 6264

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 7 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; 6

(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 [29 U.S.C.

651 et seq.]. 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).

(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

7 So in original. The word ‘‘Administrator’’ probably should be

‘‘Secretary’’.

App.23

Page 6265

TITLE 42—THE PUBLIC HEALTH AND WELFARE

§ 7412

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.

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, 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.

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 [29 U.S.C.

651 et seq.].

(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 8 (G) 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

(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.

8 So in original. Probably should be ‘‘subparagraph’’.

(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.

App.24

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(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 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

Page 6266

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.

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 pur-

App.25

Page 6267

TITLE 42—THE PUBLIC HEALTH AND WELFARE

poses 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 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) of this section.

(F) Notwithstanding the provisions of subchapter V of this chapter 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

(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

§ 7412

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 offsite consequence analysis information as

appropriate;

(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, offsite 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

App.26

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.

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TITLE 42—THE PUBLIC HEALTH AND WELFARE

(II) AFTER FIRST YEAR.—If the regulations under clause (ii) are promulgated on

or before the end of the period described in

subclause (I), off-site 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.—

(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 1year 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 offsite consequence analysis information relating to that stationary source available

to the public without restriction—

Page 6268

(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.—

(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

9 So in original. Probably should be ‘‘(i)(II)’’.

App.27

Page 6269

TITLE 42—THE PUBLIC HEALTH AND WELFARE

ing 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.

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 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 conduct-

§ 7412

(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 off-site

consequence analysis information.

(xiii) AUTHORIZATION OF APPROPRIATIONS.—

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 longterm 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.

the Administrator shall publish guidance for

using the order authorities 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 [33 U.S.C. 1321(c), 1318, 1319,

App.28

§ 7412

TITLE 42—THE PUBLIC HEALTH AND WELFARE

1364(a)], sections 3007, 3008, 3013, and 7003 of the

Solid Waste Disposal Act [42 U.S.C. 6927, 6928,

6934, 6973], sections 1445 and 1431 of the Safe

Drinking Water Act [42 U.S.C. 300j–4, 300i], sections 5 and 7 of the Toxic Substances Control

Act [15 U.S.C. 2604, 2606], 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

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) of this section;

(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.

(July 14, 1955, ch. 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;

Page 6270

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, 208.)

REFERENCES IN TEXT

The date of enactment, referred to in subsec. (a)(11),

probably means the date of enactment of Pub. L.

101–549, which amended this section generally and was

approved Nov. 15, 1990.

The Atomic Energy Act, referred to in subsec. (d)(9),

probably means the Atomic Energy Act of 1954, act

Aug. 1, 1946, ch. 724, as added by act Aug. 30, 1954, ch.

1073, § 1, 68 Stat. 921, and amended, which is classified

generally to chapter 23 (§ 2011 et seq.) of this title. For

complete classification of this Act to the Code, see

Short Title note set out under section 2011 of this title

and Tables.

The Federal Water Pollution Control Act, referred to

in subsecs. (e)(5) and (m)(1)(D), (5)(D), is act June 30,

1948, ch. 758, as amended generally by Pub. L. 92–500, § 2,

Oct. 18, 1972, 86 Stat. 816, which is classified generally

to chapter 26 (§ 1251 et seq.) of Title 33, Navigation and

Navigable Waters. Title II of the Act is classified generally to subchapter II (§ 1281 et seq.) of chapter 26 of

Title 33. For complete classification of this Act to the

Code, see Short Title note set out under section 1251 of

Title 33 and Tables.

The Toxic Substances Control Act, referred to in subsec. (k)(3)(C), is Pub. L. 94–469, Oct. 11, 1976, 90 Stat.

2003, as amended, which is classified generally to chapter 53 (§ 2601 et seq.) of Title 15, Commerce and Trade.

For complete classification of this Act to the Code, see

Short Title note set out under section 2601 of Title 15

and Tables.

The Federal Insecticide, Fungicide and Rodenticide

Act, referred to in subsec. (k)(3)(C), probably means the

Federal Insecticide, Fungicide, and Rodenticide Act,

act June 25, 1947, ch. 125, as amended generally by Pub.

L. 92–516, Oct. 21, 1972, 86 Stat. 973, which is classified

generally to subchapter II (§ 136 et seq.) of chapter 6 of

Title 7, Agriculture. For complete classification of this

Act to the Code, see Short Title note set out under section 136 of Title 7 and Tables.

The Resource Conservation and Recovery Act, referred to in subsec. (k)(3)(C), probably means the Resource Conservation and Recovery Act of 1976, Pub. L.

94–580, Oct. 21, 1976, 90 Stat. 2796, as amended, which is

classified generally to chapter 82 (§ 6901 et seq.) of this

title. For complete classification of this Act to the

Code, see Short Title of 1976 Amendment note set out

under section 6901 of this title and Tables.

The Safe Drinking Water Act, referred to in subsec.

(m)(1)(D), (5)(D), is title XIV of act July 1, 1944, as

added Dec. 16, 1974, Pub. L. 93–523, § 2(a), 88 Stat. 1660,

as amended, which is classified generally to subchapter

XII (§ 300f et seq.) of chapter 6A of this title. For complete classification of this Act to the Code, see Short

Title note set out under section 201 of this title and

Tables.

The Solid Waste Disposal Act, referred to in subsec.

(n)(7), is title II of Pub. L. 89–272, Oct. 20, 1965, 79 Stat.

997, as amended generally by Pub. L. 94–580, § 2, Oct. 21,

1976, 90 Stat. 2795. Subtitle C of the Act is classified

generally to subchapter III (§ 6921 et seq.) of chapter 82

of this title. For complete classification of this Act to

the Code, see Short Title note set out under section

6901 of this title and Tables.

Section 303 of the Clean Air Act Amendments of 1990,

referred to in subsec. (o)(4), probably means section 303

of Pub. L. 101–549, which is set out below.

The Clean Air Act Amendments of 1990, referred to in

subsec. (q)(1)–(3), probably means Pub. L. 101–549, Nov.

15, 1990, 104 Stat. 2399. For complete classification of

this Act to the Code, see Short Title note set out under

section 7401 of this title and Tables.

The Emergency Planning and Community Right-ToKnow Act of 1986, referred to in subsec. (r)(3), is title III

App.29

Page 6271

TITLE 42—THE PUBLIC HEALTH AND WELFARE

of Pub. L. 99–499, Oct. 17, 1986, 100 Stat. 1728, which is

classified generally to chapter 116 (§ 11001 et seq.) of this

title. For complete classification of this Act to the

Code, see Short Title note set out under section 11001

of this title and Tables.

The Occupational Safety and Health Act, referred to

in subsec. (r)(6)(C)(ii), (K), (L), probably means the Occupational Safety and Health Act of 1970, Pub. L.

91–596, Dec. 29, 1970, 84 Stat. 1590, as amended, which is

classified principally to chapter 15 (§ 651 et seq.) of Title

29, Labor. For complete classification of this Act to the

Code, see Short Title note set out under section 651 of

Title 29 and Tables.

CODIFICATION

In subsec. (r)(6)(N), ‘‘section 6101 of title 41’’ substituted for ‘‘section 5 of title 41 of the United States

Code’’ on authority of Pub. L. 111–350, § 6(c), Jan. 4, 2011,

124 Stat. 3854, w

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