# Appendix — Appalachian Power Co. v. Whitman > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0669%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2001 - **Citation:** 532 U.S. 903 ## Text Supreme Court, U (D Ps 2h 991431 FEB 2 8 2000 No. SE In THE Supreme Cmet of the United States APPALACHIAN POWER COMPANY, ef al., Cross-etitioners Vv. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Cross-Respondent On Conditional Cross-Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit APPENDIX TO CONDITIONAL CROSS-PETITION FOR A WRIT OF CERTIORARI me ee DAvip E. MENOTT! HENRY V. NICKEL WILLIAM F’. PEDERSEN F. WILLIAM BROWNELL JEFFERY A. KNIGHT (Counsel of Record) SHAW PITTMAN LUCINDA MINTON LANGWORTHY 2300 N Street, N.W. HUNTON & WILLIAMS Washington, D.C. 20087 1900 K Street, N.W. (202) 663-8675 Washington, D.C. 20006 Counsel for American (202) 955-1500 Forest & Paper Counsel for Appalachian Power Association and American Co., et al., American Public Iron & Steel Institute Power Association, and National Association of Home Builders February 28, 2000 [Additional Counsel Listed Inside] EES LEM ARE HALAS TRETE IE IIE ESTEVE i ILLIA EDDY ES IN ALLS EOI! BAST LISLE BILE ORE SEALE AP ENE WILSON-EPEs PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 200018 “2P° NEWMAN R. PORTER LEWIS AND ROCA 40 N. Central Avenue Phoenix, AZ 85004 (602) 262-5786 Counsel for Nevada Mining Association, Newmont Gold Company, and Meridian Gold Company RUSSELL S. FRYE COLLIER, SHANNON, RILL & Scott, PLLC 8050 K Street, N.W., Suite 400 Washington, D.C. 20007 (202) 342-8878 and RICHARD WASSERSTROM AMERICAN FOREST & PAPER ASSOCIATION, INC. 1111 19th Street, N.W. 8th Floor Washington, D.C. 20086 (202) 463-2582 Counsel for American Forest & Paper Association, Inc. GRANT CRANDALL General Counsel UNITED MINE WORKERS OF AMERICA, AFL-CIO 8315 Lee Highway Fairfax, VA 22031 (703) 208-7200 and EUGENE M. TRISKO P.O. Box 596 Berkeley Springs, WV 25411 (304) 258-1977 Counsel for United Mine Workers of America, AFL-CIO Davi F. ZOLL ALEXANDRA DAPOLITO DUNN CHEMICAL MANUFACTURERS ASSOCIATION 1300 Wilson Boulevard Arlington, VA 22209 (703) 741-5165 Counsel for Chemical Manufacturers Association G. WILLIAM FRICK M. ELIZABETH Cox AMERICAN PETROLEUM INSTITUTE 1220 L Street, N.W. Washington, D.C. 20005 (202) 682-8250 Counsel for American Petroleum Institute HAROLD P. QUINN, JR. NATIONAL MINING ASSOCIATION 1130 17th Street, N.W. Washington, D.C. 20036 (202) 463-9793 Counsel for National Mining Association MARCELLE SHOOP Vice President Law and General Counsel KENNECOTT CORPORATION 8315 West 3595 South P.O. Box 6001 Magna, Utah 84044-6001 (801) 252-3000 Counsel for Kennecott Holdings Corporation, Kennecott - Energy and Coal Company, and Kennecott Services Company PETER S. GLASER SHOOK, HARDY & BACON 600 14th Street, N.W. Suite 800 Wasshington, D.C. 20005 (202) 639-5627 Counsel for Western Fuels Association, Inc. MAURICE H. MCBRIDE NATIONAL PETROCHEMICAL & REFINERS ASSOCIATION 1899 L Street, N.W. Washington, D.C. 20036 (202) 457-0480 Counsel for National Petrochemical & Refiners Association a Davi M. FLANNERY JACKSON & KELLY P.O. Box 5538 1600 Laidley Tower Charleston, WV 25822 (804) 340-1017 Counsel for Midwest Ozone Group; and West Virginia Chamber of Commerce KurT BLASE KILPATRICK STOCKTON LLP 700 Thirteenth Street, N.W. Suite 800 Washington, D.C. 20005 (202) 508-5800 Counsel for Kennecott Holdings Corporation, Kennecott Energy and Coal Company, Kennecott Services Company and National Stone Association TIMOTHY L. HARKER THE HARKER LAW FIRM 9500 Accord Drive Potomac, MD 20854 (301) 9838-0964 and THOMAS J. GRAVES NATIONAL PAINT AND COATINGS ASSOCIATION, INC. 1500 Rhode Island Ave., N.W. Washington, D.C. 20005 (202) 462-6272 Counsel for National Paint and Coatings Association DAVID M. FRIEDLAND BEVERIDGE & DIAMOND 1350 I Street, N.W. Suite 700 Washington, D.C. 20005 (202) 789-6000 Counsel for Phoenix Cement Company APPENDIX TABLE OF CONTENTS - Relevant Statutory Provisions..............cccscsccccscssseoeees la . Attachment to Presidential Memorandum, “Implementation Plan for Revised Air Quality Standards” (excerpts) .........cccccccccccsssseseseeee. 69a - “National Ambient Air Quality Standards for Ozone,” Preamble to Final Rule . Brief of Respondent United Siates Environmental Protection Agency, EDF v. Browner (D.C. Cir. No. 98-1363) SSE SE RE ar 0 CNR ee te EE 82a la APPENDIX A Relevant Statutory Provisions Excerpt from Section 101 of the Clean Air Act § 7401. Findings and purposes. * * * (b) The purposes of this title are — (1) to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population; * a ” Excerpt from Section 108 of the Clean Air Act § 7408. Air quality criteria and control techniques. * * * (b) Issuance by Administrator of information on air pollution control techniques; standing consulting committees for air pollutants; establishment; membership (1) Simultaneously with the issuance of criteria under subsection (a) of this section, the Administrator shall, after consultation with appropriate advisory committees and Federal departments and agencies, issue to the States and appropriate air pollution control agencies information on air pollution control techniques, which information shall include data relating to the cost of installation and operation, energy requirements, emission reduction benefits, and environmental 2a impact of the emission control technology. Such information shall include such data as are available on available technology and alternative methods of prevention and control of air pollution. Such information shall also include data on alternative fuels, processes, and operating methods which will result in elimination or significant reduction of emissions. * * * Subpart 2 of Part D of Title I of the Clean Air Act Subpart 2—Additional Provisions for Ozone Nonattainment Areas § 7511. Classifications and attainment dates (a) Classification and attainment dates for 1989 non- attainment areas (1) Each area designated nonattainment for ozone pursuant to section 7407(d) of this title shall be classified at the time of such designation, under table 1, by operation of law, as a Marginal Area, a Moderate area, a serious area, a Severe Area, or an Extreme Area based on the design value for the area. The design value shall be caiculated according to the interpretation methodology issued by the Administrator most recently before November 15, 1990. For each area classified under this subsection, the primary standard attainment date for ozone shall be as expeditiously as practicable but not later than the date provided in table 1. 3a TABLE 1 Areaclass _ Design value* Primary standard attainment date** _ Marginal......... 0.121 upto 0.138... 3 years after pastillchineticlnadtnaaiticnunbibaddiasbabiiansibcickadicak November 15, 1990 Moderate ........ 0.138 up to 0.160... 6 years after ‘bsiceennbibhamenniian bse i as November 15, 1990 Serious............ 0.160 up to 0.180... 9 years after iitealbicrcbdisnccaacionialbendtiscibuavabianbciacbeuisiin November 15, 1990 SOVOTC.....c0secsess 0.180 up to 0.280... 15 years after cieneopebanceunceimsbensdebidebbansekdiad susbbsaieded scious November 15, 1990 Extreme.......... 0.280 and above... 20 years after saduah dhdbvedohacstliatchuctovantbadaloclacdieliacenéinsaccs November 15, 1990 * The design value is measured in parts per million (ppm). ** The primary standard attainment date is measured from November 15, 1990. (2) Notwithstanding table 1, in the case of a severe area with a 1988 ozone design value between 0.190 and 0.280 ppm, the attainment date shall be 17 years (in lieu of 15 years) after November 15, 1990. (3) At the time of publication of the notice under section 7407(d)(4) of this title (relating to area designations) for each ozone nonattainment area, the Administrator shall publish a notice announcing the classification of such ozone nonattainment area. The provisions of section 7502(a)(1)(B) of this title (relating to lack of notice and comment and . a ee ee eee 4a — judicial review) shall apply to such classification. (4) If an area classified under paragraph (1) (Table 1) would have been classified in another category if the design value in the area were 5 percent greater or 5 percent less than the level on which such classification was based, the Administrator may, in the Administrator's discretion, within 90 days after the initial classification, by the procedure required under paragraph (3), adjust the classification to place the area in such other category. In making such adjustment, the Administrator may consider the number of exceedances of the national primary ambient air quality standard for ozone in the area, the level of pollution transport between the area and other affected areas, including both intrastate and interstate transport, and the mix of sources and air pollutants in the area. (5) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the "Extension Year") the date specified in table 1 of paragraph (1) of this subsection if- (A) the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and (B) no more than 1 exceedance of the national ambient air quality standard level for ozone has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this paragraph for a single nonattainment area. (b) New designations and reclassifications 5a (1) New designations to nonattainment Any area that is designated attainment or unclassifiable for ozone under section 7407(d)(4) of this title, and that is subsequently redesignated to nonattainment for ozone under section 7407(d)(3) of this title, shall, at the time of the redesignation, be classified by operation of law in accordance with table 1 under subsection (a) of this section. Upon its classification, the area shall be subject to the same requirements under section 7410 of this title, subpart | of this part, and this subpart that would have applied had the area been so classified at the time of the notice under subsection (a)(3) of this section, except that any absolute, fixed date applicable in connection with any such requirement is extended by operation of law by a period equal to the length of time between November 15, 1990, and the date the area is classified under this paragraph. (2) Reclassification upon failure to attain (A) Within 6 months following the applicable attainment date (including any extension thereof) for an ozone nonattainment area, the Administrator shall determine, based on the area's design value (as of the attainment date), whether the area attained the standard by that date. Except for any Severe or Extreme area, any area that the Administrator finds has not attained the standard by that date shall be reclassified by operation of law in accordance with table 1 of subsection (a) of this section to the higher of-- (i) the next higher classification for the area, or (ii) the classification applicable to the area's 6a design value as determined at the time of the notice required under subparagraph (B). No area shall be reclassified as Extreme under clause (ii). (B) The Administrator shall publish a notice in the Federal Register, no later than 6 months following the attainment date, identifying each area that the Administrator has determined under subparagraph (A) as having failed to attain and identifying the re-classification, if any, described under subparagraph (A). (3) Voluntary reclassification The Administrator shall grant the request of any State to reclassify a nonattainment area in that State in accordance with table 1 of subsection (a) of this section to a higher classification. The Administrator shall publish a notice in the Federal Register of any such request and of action by the Administrator granting the request. (4) Failure of Severe Areas to attain standard (A) If any Severe Area falls to achieve the national primary ambient air quality standard for ozone by the applicable attainment date (including any extension thereof), the fee provisions under section 7511d of this title shall apply within the area, the percent reduction requirements of section 751 1a(c)(2)(B) and (C) of this title (relating to reasonable further progress demonstration and NO,, control) shall continue to apply to the area, and the State shall demonstrate that such percent reduction has been achieved in each 3-year interval after such failure until the standard is attained. Any failure to make such a demonstration shall be subject to the Ta sanctions provided under this part. (B) In addition to the requirements of subparagraph (A), if the ozone design value for a Severe Area referred to in subparagraph (A) is above 0.140 ppm for the year of the applicable attainment date, or if the area has failed to achieve its most recent milestone under section 751 la(g) of this title, the new source review requirements applicable under this subpart in Extreme Areas shall apply in the area and the term “major source" and "major Stationary source" shall have the same meaning as in Extreme Areas. (C) In addition to the requirements of subparagraph (A) for those areas referred to in subparagraph (A) and not covered by subparagraph (B), the provisions referred to in subparagraph (B) shall apply after 3 years from the applicable attainment date unless the area has attained the standard by the end of such 3-year period. (D) If, after November 15, 1990, the Administrator modifies the method of determining compliance with the national primary ambient air quality standard, a design value or other indicator comparable to 0.140 in terms of its relationship to the standard shall be used in lieu of 0.140 for purposes of applying the provisions of subparagraphs (B) and (C). (c) References to terms (1) Any reference in this subpart to a "Marginal Area", a "Moderate Area", a "Serious Area", a "Severe Area", or an "Extreme Area" shall be considered a reference to a Marginal Area, a Moderate Area, a Serious Area, a Severe Area, or an Extreme Area as respectively classified under this section. 8a (2) Any reference in this subpart to “next higher classification" or comparable terms shall be considered a reference to the classification related to the next higher set of design values in table 1. § 75lla. Plan submissions and requirements (a) Marginal Areas Each State in which all or part of a Marginal Area is located shall, with respect to the Marginal Area (or portion thereof, to the extent specified in this subsection), submit to the Administrator the State implementation plan revisions (including the plan items) described under this subsection except to the extent the State has made such submissions as of November 15, 1990. (1) Inventory Within 2 years after November 15, 1990, the State shall submit a comprehensive, accurate, current inventory of actual emissions from all sources, as described in section 7502(c\3) of this title, in accordance with guidance provided by the Administrator. (2) Corrections to the State implementation plan Within the periods prescribed in this paragraph, the State shall submit a revision to the State implementation plan that meets the following requirements- (A) Reasonably available control technology corrections 9a For any Marginal Area (or, within the Administrator's discretion, portion thereof) the State shall submit, within 6 months of the date of classification under section 7511(a) of this title, a revision that includes such provisions to correct requirements in (or add requirements to) the plan concerning reasonably available control technology as were required by the Administrator under section 7408 of this title before November 15, 1990, (B) Savings clause for vehicle inspection and maintenance (i) For any Marginal Area (or, within the Administrator's discretion, portion thereof), the plan for which already includes, or was required by section 7502(b)(I1)(B) of this title (as in effect immediately before November 15, 1990) to have included, a specific schedule for implementation of a vehicle emission control inspection and maintenance program, the State shall submit, immediately after November 15, 1990, a revision that includes any provisions necessary to provide for a vehicle inspection and maintenance program of no less stringency than that of either the program defined in House Report Numbered 95-294, 95th Congress, Ist Session, 281-291 (1977) as interpreted in guidance of the Administrator issued pursuant to section 7502(b)(I1)(B) of this title (as in effect immediately before November 15, 1990) or the program already included in the plan, whichever is more stringent. (ii) Within 12 months after November 15, 10a 1990, the Administrator shall review, revise, update, and republish in the Federal Register the guidance for the States for motor vehicle inspection and maintenance pro- grams required by this chapter, taking into consideration the Administrator's investigations and audits of such program. The guidance shall, at a minimum, cover the fre- quency of inspections, the types of vehicles to be inspected (which shall include leased vehicles that are registered in the nonattainment area), vehicle maintenance by owners and operators, audits by the State, the test method and measures, including whether centralized or decentralized, inspection methods and procedures, quality of inspection, components covered, assurance that a vehicle subject to a recall notice from a manufacturer has complied with that notice, and effective implementation and enforcement, including ensuring that any retesting of a vehicle after a failure shall include proof of corrective action and provid- ing for denial of vehicle registration in the case of tampering or misfueling. The guidance which shall be incorporated in the applicable State implementation plans by the States shall provide the States with continued reasonable flexibility to fashion effective, reasonable, and fair programs for the affected consumer. No later than 2 years after the Administrator promulgates regulations under section 7521(m)(3) of this title (relating to emission control diagnostics), the State shall submit a revision to such program to meet any requirements that the Administrator may prescribe under that section. (C) Permit programs Within 2 years after November 15, 1990, the State shall submit a revision that includes each of the following: (i) Provisions to require permits, in ac- cordance with sections 7502(c)(5) and 7503 of this title, for the construction and operation of each new or modified major stationary source (with respect to ozone) to be located in the area. (ii) Provisions to correct requirements in (or add requirements to) the plan concerning permit programs as were required under section 7502(b)(6) of this title (as in effect immediately before November 15, 1990), as interpreted in regulations of the Administrator promulgated as of November 15, 1990. (3) Periodic inventory (A) General requirement No later than the end of each 3-year period after submission of the inventory under paragraph (1) until the area is redesignated to attainment, the State shall submit a revised inventory meeting the requirements of subsection (a)(1) of this section. (B) Emissions statements (i) Within 2 years after November 15, 1990, the State shall submit a revision to the State implementation plan to require that the owner or operator of each stationary source of oxides of nitrogen or volatile organic compounds provide the State with a statement, in such form as the Administrator may prescribe (or accept an equivalent alternative developed by the State), for classes or categories of sources, showing the actual emissions of oxides of nitrogen and volatile organic 12a compounds from that source. The first such statement shall be submitted within 3 years after November 15, 1990. Subsequent statements shall be submitted at least every year thereafter. The statement shall contain a certification that the information contained in the state- ment is accurate to the best knowledge of the individual certifying the statement. (ii) The State may waive the application of clause (i) to any class or category of stationary sources which emit less than 25 tons per year of volatile organic compounds or oxides of nitrogen if the State, in its submissions under subparagraphs (1) or (3)(A), provides an inventory of emissions from such class or category of sources, based on the use of the emissions factors es- tablished by the Administrator or other methods acceptable to the Administrator. (4) General offset requirement For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increased emissions of such air pollutant shall be at least 1.1 to 1. The Administrator may, in the Administrator's discretion, require States to submit a schedule for submitting any of the revisions or other items required under this subsection. The requirements of this subsection shall apply in lieu of any requirement that the State submit a demonstration that the applicable implementation plan provides for attainment of the ozone standard by the applicable attainment date in any Marginal Area. Section 7502(c)\(9) of this title (relating to contingency measures) shall not apply to Marginal Areas. a iliac 13a (b) Moderate Areas Each State in which all or part of a Moderate Area is located shall, with respect to the Moderate Area, make the (relating to Marginal Areas), and shall also submit the revisions to the applicable implementation plan: described (1) Plan provisions for reasonable further progress (A) General rule (i) By no later than 3 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan to provide for volatile organic compound emission reductions, within 6 years after November 15, 1990, of at least 15 percent from baseline emissions, accounting for any growth in emissions after 1990. Such plan shall Provide for such specific annual reductions in emissions of volatile organic compounds and oxides of nitrogen as necessary to attain the national primary ambient air quality standard for ozone by the attainment date applicable under this chapter. This subparagraph shall not apply in the case of oxides of nitrogen for those areas for which the Administrator determines (when the Administrator approves the plan or plan revision) that additional reductions of oxides of nitrogen would not contribute to attainment. (ii) A percentage less than 15 percent may be used for purposes of clause (i) in the case of any State which demonstrates to the satisfaction of the 14a Administrator that- (I) new source review provisions are ap- plicable in the nonattainment areas in the same manner and to the same extent as required under subsection (e) of this section in the case of Extreme Areas (with the exception that, in applying such provisions, the terms "major source” and "major stationary source" shall include (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 5 tons per year of volatile organic compounds); (II) reasonably available control tech- nology is required for all existing major sources (as defined in subclause (1)); and (III) the plan reflecting a lesser percentage than 15 percent includes all measures that can feasibly be implemented in the area, in light of technological achievability. To qualify for a lesser percentage under this clause, a State must demonstrate to the satisfaction of the Administrator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher category. (B) Baseline emissions For purposes of subparagraph (A), the term “baseline emissions" means the total amount of actual VOC or NO, 15a emissions from all anthropogenic sources in the area during the calendar year 1990, excluding emissions that would be eliminated under the regulations described in Clauses (i) and (ii) of subparagraph (D). (C) General rule for creditability of reductions Except as provided under subparagraph (D), emissions reductions are creditable toward the 15 percent required under subparagraph (A) to the extent they have actually occurred, as of 6 years after November 15, 1990, from the implementation of measures required under the applicable implementation plan, rules promulgated by the Administrator, or a permit under subchapter V of this chapter. (D) Limits on creditability of reductions Emission reductions from the following measures are not creditable toward the 15 percent reductions required under subparagraph (A): (i) Any measure relating to motor vehicle exhaust or evaporative emissions promulgated by the Administrator by January 1, 1990. (ii) Regulations concerning Reid Vapor Pressure promulgated by the Administrator by November 15, 1990, or required to be promulgated under section 7545(h) of this title. (iii) Measures required under subsection (aX(2)(A) of this section (concerning corrections to implementation plans prescribed under guidance by the Administrator). l6a (iv) Measures required under subsection (a)(2)(B) of this section to be submitted immediately after November 15, 1990 (concerning corrections to motor vehicle inspection and maintenance programs). (2) Reasonably available control technology The State shall submit a revision to the applicable implementation plan to include provisions to require the implementation of reasonably available control technology under section 7502(c)(1) of this title with respect to each of the following: (A) Each category of VOC sources in the area covered by a CTG document issued by the Administrator between November 15, 1990, and the date of attainment. (B) All VOC sources in the area covered by any CTG issued before November 15, 1990. (C) All other major stationary sources of VOCs that are located in the area. Each revision described in subparagraph (A) shall be submitted within the period set forth by the Administrator in issuing the relevant CTG document. The revisions with respect to sources described in subparagraphs (B) and (C) shall be submitted by 2 years after November 15, 1990, and shall provide for the implementation of the required measures as expeditiously as practicable but no later than May 31, 1995. (3) Gasoline vapor recovery 17a (A) General rule (B) Effective date The date required under subparagraph (A) shall be- (i) 6 months after the adoption date, in the case of gasoline dispensing facilities for which construction commenced after November 15, 1990; (ii) one year after the adoption date, in the case of gasoline dispensing facilities which dispense at least 100,000 gallons of gasoline per month, based on average monthly sales for the 2-year period before the adoption date; or (ili) 2 years after the adoption date, in the case of all other gasoline dispensing facilities. Any gasoline dispensing facility described under both Clause (i) and clause (ii) shall meet the requirements of clause 18a (i). (C) Reference to terms For purposes of this paragraph, any reference to the term "adoption date" shall be considered a reference to the date of adoption by the State of requirements for the installation and operation of a system for gasoline vapor recovery of emissions from the fueling of motor vehicles. (4) Motor vehicle inspection and maintenance For all Moderate Areas, the State shall submit, immediately after November 15, 1990, a revision to the applicable implementation plan that includes provisions necessary to provide for a vehicle inspection and maintenance program as described in subsection (a)(2)(B) of this section (without regard to whether or not the area was required by sec- tion 7502(b)(11)(B) of this title (as in effect immediately before November 15, 1990) to have included a specific schedule for implementation of such a program). (5) General offset requirement For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increase emissions of such air pollutant shall be at least 1.15 to 1. (c) Serious Areas Except as otherwise specified in paragraph (4), each State in which all or part of a Serious Area is located shall, with respect to the Serious Area (or portion thereof, to the extent 19a specified in this subsection), make the submissions described under subsection (b) of this section (relating to Moderate Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. For any Serious Area, the terms "major source" and "major Stationary source" include (in addition to the sources described in section 7602 of this title) any Stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 50 tons per year of volatile organic compounds. (1) Enhanced monitoring In order to obtain more comprehensive and representative data on ozone air pollution, not later than 18 months after November 15, 1990, the Administrator shall promulgate rules, after notice and public comment, for enhanced monitoring of ozone, oxides of nitrogen, and volatile organic compounds. The rules shall, among other things, cover the location and maintenance of monitors. Immediately following the promulgation of rules by the Administrator relating to enhanced monitoring, the State shall commence such actions as may be necessary to adopt and implement a program based on such rules, to improve monitoring for ambient concentrations of ozone, oxides of nitrogen and volatile organic compounds and to improve monitoring of emissions of oxides of nitrogen and volatile Organic compounds. Each State implementation plan for the area shall contain measures to improve the ambient monitoring of such air pollutants. (2) Attainment and reasonable further progress demonstrations 20a Within 4 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan that includes each of the following: (A) Attainment demonstration A demonstration that the plan, as revised, will provide for attainment of the ozone national ambient air quality standard by the applicable attainment date. This attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the Ad- ministrator, in the Administrator’s discretion, to be at least as effective. (B) Reasonable further progress demonstration A demonstration that the plan, as revised, will result in VOC emissions reductions from the baseline emissions described in subsection (b)(1)(B) of this section equal to the following amount averaged over each consecutive 3-year period beginning 6 years after November 15, 1990, until the attainment date: (i) at least 3 percent of baseline emissions each year; or (ii) an amount less than 3 percent of such baseline emissions each year, if the State demonstrates to the satisfaction of the Administrator that the plan reflecting such lesser amount includes all measures that can feasibly be implemented in the area, in light of technological achievability. To lessen the 3 percent requirement under clause (ii), a 2la State must demonstrate to the satisfaction of the Administrator that the plan for the area includes the measures that are achieved in practice by sources in the same source category in nonattainment areas of the next higher classification. Any determination to lessen the 3 percent requirement shall be reviewed at each milestone under subsection (g) of this section and revised to reflect such new measures (if any) achieved in practice by sources in the same category in any State, allowing a reasonable time to implement such measures. The emission reductions described in this subparagraph shall be calculated in accordance with subsection (b)(1)(C) and (D) of this section (concerning creditability of reductions). The reductions creditable for the period beginning 6 years after November 15, 1990, shall include reductions that occurred before such period, computed in accordance with subsection (b)(1) of this section, that exceed the 15-percent amount of reductions required under subsection (b)(1)(A) of this section. (C) NO, control The revision may contain, in lieu of the demonstration required under Subparagraph (B), a demonstration to the Satisfaction of the Administrator that the applicable implementation plan, as revised, provides for reductions of emissions of VOC's and oxides of nitrogen (calculated according to the creditability provisions of subsection (b)(1)(C) and (D) of this section), that would result in a reduction in ozone concentrations at least equivalent to that which would result from the amount of VOC emission reductions required under subparagraph (B). Within 1 year after November 15, 1990, the Administrator shall issue guid- ance concerning the conditions under which NO, control may be substituted for VOC control or may be combined with VOC control in order to maximize the reduction in ozone air 22a pollution. In accord with such guidance, a lesser percentage of VOCs may be accepted as an adequate demonstration for purposes of this subsection. (3) Enhanced vehicle inspection and maintenance program (A) Requirement for submission Within 2 years after November 15, 1990, the State shall submit a revision to the applicable implementation plan to provide for an enhanced program to reduce hydrocarbon emissions and NO. emissions from in-use motor vehicles registered in each urbanized area (in the nonattainment area), as defined by the Bureau of the Census, with a 1980 population of 200,000 or more. (B) Effective date of State programs; guidance The State program required under subparagraph (A) shall take effect no later than 2 years from November 15, 1990, and shall comply in all respects with guidance published in the Federal Register (and from time to time revised) by the Administrator for enhanced vehicle inspection and mainte- nance programs. Such guidance shall include-- (i) a performance standard achievable by a program combining emission testing, including on-road emission testing, with inspection to detect tampering with emission control devices and misfueling for all light-duty vehicles and all light-duty trucks subject to standards under section 7521 of this title; and (ii) program administration features necessary 23a to reasonably assure that adequate management resources, tools, and practices are in place to attain and maintain the performance standard. Compliance with the performance standard under clause (i) shall be determined using a method to be established by the Administrator. (C) State program The State program required under subparagraph (A) shall include, at a minimum, each of the following elements- (i) Computerized emission analyzers, including on-road testing devices. (ii) No waivers for vehicles and parts covered by the emission control performance warranty as provided for in section 7541(b) of this title unless a warranty remedy has been denied in writing, or for tampering-related repairs. (iii) In view of the air quality purpose of the program, if, for any vehicle, waivers are permitted for emissions-related repairs not covered by warranty, an expenditure to qualify for the waiver of an amount of $450 or more for such repairs (adjusted annually as determined by the Administrator on the basis of the Consumer Price Index in the same manner as provided in subchapter V of this chapter). (iv) Enforcement through denial of vehicle registration (except for any program in operation before November 15, 1990, whose enforcement mechanism is 24a demonstrated to the Administrator to be more effective than the applicable vehicle registration program in assuring that noncom-plying vehicles are not operated on public roads). (v) Annual emission testing and necessary adjustment, repair, and maintenance, unless the State demonstrates to the satisfaction of the Administrator that a biennial inspection, in combination with other features of the program which exceed the requirements of this chapter, will result in emission reductions which equal or exceed the reductions which can be obtained through such annual inspections. (vi) Operation of the program on a centralized basis, unless the State demonstrates to the satisfaction of the Administrator that a decentralized program will be equally effective. An electronically connected testing system, a licensing system, or other measures (or any combination thereof) may be considered, in accordance with criteria established by the Administrator, as equally effective for such purposes. (vii) Inspection of emission control diagnostic systems and the maintenance or repair of malfunctions or system deterioration identified by or affecting such diagnostics systems. Each State shall biennially prepare a report to the Administrator which assesses the emission reductions achieved by the program required under this paragraph based on data collected during inspection and repair of vehicles. The methods used to assess the emission reductions shall be those established by the Administrator. 25a (4) Clean fuel vehicle programs (A) Except to the extent that substitute provisions have been approved by the Administrator under subparagraph (B), the State shall submit to the Administrator, within 42 months of November 15, 1990, a revision to the applicable implementation plan for each area described under part C of subchapter II of this chapter to include such measures as may be necessary to ensure the effectiveness of the applicable provisions of the clean-fuel vehicle program prescribed under part C of subchapter II of this chapter, including all measures necessary to make the use of clean alternative fuels in clean- fuel vehicles (as defined in part C of subchapter II of this chapter) economic from the standpoint of vehicle owners. Such a revision shall also be submitted for each area that opts into the clean fuel-vehicle program as provided in part C of subchapter II of this chapter. (B) The Administrator shall approve, as a substitute for all or a portion of the clean-fuel vehicle program prescribed under part C of subchapter II of this chapter, any revision to the relevant applicable implementation plan that in the Administrator's judgment will achieve long-term reductions in ozone-producing and toxic air emissions equal to those achieved under part C of subchapter II of this chapter, or the percentage thereof attributable to the portion of the clean- fuel vehicle program for which the revision is to substitute. The Administrator may approve such revision only if it consists exclusively of provisions other than those required under this chapter for the area. Any State seeking approval of such revision must submit the revision to the Administrator within 24 months of November 15, 1990. The Administrator shall approve or disapprove any such revision within 30 26a months of November 15, 1990. The Administrator shall publish the revision submitted by a State in the Federal Register upon receipt. Such notice shall constitute a notice of proposed rulemaking on whether or not to approve such revision and shall be deemed to comply with the requirements concerning notices of proposed rulemaking contained in sections 553 through 557 of title 5 (related to notice and comment). Where the Administrator approves such revision for any area, the State need not submit the revision required by subparagraph (A) for the area with respect to the portions of the Federal clean-fuel vehicle program for which the Ad- ministrator has approved the revision as a substitute. (C) If the Administrator determines, under section 7509 of this title, that the State has failed to submit any portion of the program required under subparagraph (A), then, in addition to any sanctions available under section 7509 of this title, the State may not receive credit, in any demonstration of attainment or reasonable further progress for the area, for any emission reductions from implementation of the corresponding aspects of the Federal clean-fuel vehicle requirements established in part C of subchapter II of this chapter. (5) Transportation control (A) Beginning 6 years after November 15, 1990, and each third year thereafter, the State shall submit a demonstration as to whether current aggregate vehicle mileage, aggregate vehicle emissions, congestion levels, and other relevant parameters are consistent with those used for the area's demonstration of attainment. Where such parameters and emissions levels exceed the levels projected for purposes of the area's attainment demonstration, the State 27a shall within 18 months develop and submit a revision of the applicable implementation plan that includes a transportation control measures program consisting of measures from, but not limited to, section 7408(f) of this title that will reduce emissions to levels that are consistent with emission levels Projected in such demonstration. In considering such measures, the State should ensure adequate access to downtown, other commercial, and residential areas and should avoid measures that increase or relocate emissions and congestion rather than reduce them. Such revision shall be developed in accordance with guidance issued by the Ad- ministrator pursuant to section 7408(e) of this title and with the requirements of section 7504(b) of this title and shall include implementation and funding schedules that achieve expeditious emissions reductions in accordance with implementation plan projections. (6) De minimis rule The new source review Provisions under this part shall ensure that increased emissions of volatile organic compounds resulting from any physical change in, or change in the method of operation of, a Stationary source located in the area shall not be considered de minimis for purposes of determining the ap- plicability of the permit requirements established by this chapter unless the increase in net emissions of such air pollutant from such source does not exceed 25 tons when aggregated with all other net increases in emissions from the source over any period of 5 consecutive calendar years which includes the calendar year in which such increase occurred. (7) Special rule for modifications of sources emitting less than 100 tons 28a In the case of any major stationary source of volatile organic compounds located in the area (other than a source which emits or has the potential to emit 100 tons or more of volatile organic compounds per year), whenever any change (as described in section 7411(a)(4) of this title) at that source results in any increase (other than a de minimis increase) in emissions of volatile organic compounds from any discrete operation, unit, or other pollutant emitting activity at the source, such increase shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, except that such increase shall not be considered a modification for such purposes if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of volatile organic compounds concerned from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. If the owner or operator does not make such election, such change shall be considered a modification for such purposes, but in applying section 7503(a)(2) of this title in the case of any such modification, the best available control technology (BACT), as defined in section 7479 of this title, shall be substituted for the lowest achievable emission rate (LAER). The Administrator shall establish and publish policies and procedures for implementing the provisions of this paragraph. (8) Special rule for modifications of sources emitting 100 tons or more In the case of any major stationary source of volatile organic compounds located in the area which emits or has the potential to emit 100 tons or more of volatile organic com- pounds per year, whenever any change (as described in section 741 1(a)(4) of this title) at that source results in any increase (other than a de minimis increase) in emissions of volatile 29a organic compounds from any discrete operation, unit, or other pollutant emitting activity at the source, such increase shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, except that if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of volatile organic compounds from other operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1, the requirements of section 7503(a)(2) of this title (concerning the lowest achievable emission rate (LAER)) shall not apply. (9) Contingency provisions In addition to the contingency provisions required under section 7502(c)(9) of this title, the plan revision shall provide for the implementation of specific measures to be undertaken if the area fails to meet any applicable milestone. Such measures shall be included in the plan revision as contingency measures to take effect without further action by the State or the Administrator upon a failure by the State to meet the applicable milestone. (10) General offset requirement For purposes of satisfying the emission offset requirements of this part, the ratio of total emission reductions of volatile organic compounds to total increase emissions of such air pollutant shall be at least 1.2 to 1. Any reference to "attainment date" in subsection (b) of this section, which is incorporated by reference into this subsection, shall refer to the attainment date for serious areas. (d) Severe Areas 30a Each State in which all or part of a Severe Area is located shall, with respect to the Severe Area, make the submissions described under subsection (c) of this section (relating to Seri- ous Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. For any Severe Area, the terms "major source" and "major stationary source” include (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 25 tons per year of volatile organic compounds. (1) Vehicle miles traveled (A) Within 2 years after November 15, 1990, the State shall submit a revision that identifies and adopts specific enforceable transportation control strategies and transportation control measures to offset any growth in emissions from growth in vehicle miles traveled or numbers of vehicle trips in such area and to attain reduction in motor vehicle emissions as necessary, in combination with other emission reduction requirements of this subpart, to comply with the requirements of sub-section (b)(2)B) and (c)(2)(B) of this section (pertaining to periodic emissions reduction requirements). The State shall consider measures specified in section 7408(f) of this title, and choose from among and implement such measures as necessary to demonstrate attainment with the national ambient air quality standards; in considering such measures, the State should ensure adequate access to down- town, other commercial, and residential areas and should avoid measures that increase or relocate emissions and congestion rather than reduce them. Le a 3la (B) The State may also, in its discretion, submit a revision at any time requiring employers in such area to implement programs to reduce work-related vehicle trips and miles travelled by employees. Such revision shall be developed in accordance with guidance issued by the Administrator pursuant to section 7408(f) of this title and may require that employers in such area increase average passenger occupancy per vehicle in commuting trips between home and the workplace during peak travel periods. The guidance of the Administrator may specify average vehicle occupancy rates which vary for locations within a nonattainment area (suburban, center city, business district) or among nonattainment areas reflecting existing occupancy rates and the availability of high occupancy modes. Any State required to submit a revision under this subparagraph (as in effect before December 23, 1995) containing provisions requiring employers to reduce work-related vehicle trips and miles travelled by employees may, in accordance with State law, remove such provisions from the implementation plan, or withdraw its submission, if the State notifies the administrator, in writing, that the State has undertaken, or will undertake, one or more alternative methods that will achieve emission reductions equivalent to those to be achieved by the removed or withdrawn provisions. (2) Offset requirement For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.3 to 1, except that if the State plan requires all existing major sources in the nonattainment area to use best available control technology (as defined in section 7479(3) of 32a this title) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1. (3) Enforcement under section 7511d By December 31, 2000, the State shall submit a plan revision which includes the provisions required under section 7511d of this title. Any reference to the term "attainment date" in subsection (b) or (c) of this section, which is incorporated by reference into this subsection (d), shall refer to the attainment date for Severe Areas. (e) Extreme Areas Each State in which all or part of an Extreme Area is located shall, with respect to the Extreme Area, make the submissions described under subsection (d) of this section (relating to Severe Areas), and shall also submit the revisions to the applicable implementation plan (including the plan items) described under this subsection. The provisions of clause (ii) of sub-section (c)(2)(B) of this section (relating to reductions of less than 3 percent), the provisions of paragraphs s (6), (7) and (8) of subsection (c) of this section (relating to de minimus rule and modification of sources), and the provisions of clause (ii) of subsection (b)(1)(A) of this section (relating to reductions of less than 15 percent) shall not apply in the case of an Extreme Area. For any Extreme Area, the terms "major source" and "major stationary source" includes (in addition to the sources described in section 7602 of this title) any stationary source or group of sources located within a contiguous area and under common control that emits, or has the potential to emit, at least 10 tons per year of volatile ; z § ~ & = } = : S k 4. ‘ + f ? & = = & § CJ e Fa % = + q 33a organic compounds. (1) Offset requirement For purposes of satisfying the offset requirements pursuant to this part, the ratio of total emission reductions of VOCs to total increased emissions of such air pollutant shall be at least 1.5 to 1, except that if the State plan requires all existing major sources in the nonattainment area to use best available control technology (as defined in section 7479(3) of this title) for the control of volatile organic compounds, the ratio shall be at least 1.2 to 1. (2) Modifications Any change (as described in section 741 1(a)(4) of this title) at a major stationary source which results in any increase in emissions from any discrete operation, unit, or other pollutant emitting activity at the source shall be considered a modification for purposes of section 7502(c)(5) of this title and section 7503(a) of this title, except that for purposes of complying with the offset requirement pursuant to section 7503(a)(1) of this title, any such increase shall not be con- sidered a modification if the owner or operator of the source elects to offset the increase by a greater reduction in emissions of the air pollutant concerned from other discrete operations, units, or activities within the source at an internal offset ratio of at least 1.3 to 1. The offset requirements of this part shall not be applicable in Extreme Areas to a modification of an existing source if such modification consists of installation of equipment required to comply with the applicable implementation plan, permit, or this chapter. (3) Use of clean fuels or advanced control technology 34a For Extreme Areas, a plan revision shall be submitted within 3 years after November 15, 1990, to require, effective 8 years after November 15, 1990, that each new, modified, and existing electric utility and industrial and commercial boiler which emits more than 25 tons per year of oxides of nitrogen- (A) burn as its primary fuel natural gas, methanol, or ethanol (or a comparably low polluting fuel), or (B) use advanced control technology (such as catalytic control technology or other comparably effective control methods) for reduction of emissions of oxides of nitrogen. For purposes of this subsection, the term "primary fuel" means the fuel which is used 90 percent or more of the operating time. This paragraph shall not apply during any natural gas supply emergency (as defined in title III of the Natural Gas Policy Act of 1978 (15 U.S.C. 3361 et seq.]). (4) Traffic control measures during heavy traffic hours For Extreme Areas, each implementation plan revision under this subsection may contain provisions establishing traffic control measures applicable during heavy traffic hours to reduce the use of high polluting vehicles or heavy-duty vehicles, notwithstanding any other provision of law. (5) New technologies The Administrator may, in accordance with section 7410 of this title, approve provisions of an implementation plan for an Extreme Area which anticipate development of new control SURE HESSD ES era amnesic ae RTs haaiandee meee SECT RA VT LEONA I ADE OIL RE DEEL 35a techniques or improvement of existing control technologies, and an attainment demonstration based on such provisions, if the State demonstrates to the satisfaction of the Administrator that- (A) such provisions are not necessary to achieve the incremental emission reductions required during the first 10 years after November 15, 1990; and (B) the State has submitted enforceable commitments to develop and adopt contingency measures to be implemented as set forth herein if the anticipated technologies do not achieve planned reductions. Such contingency measures shall be submitted to the Administrator no later than 3 years before proposed implementation of the plan provisions and approved or disapproved by the Administrator in accordance with section 7410 of this title. The contingency measures shall be adequate to produce emission reductions sufficient, in conjunction with other approved plan provisions, to achieve the periodic emission reductions required by subsection (b)(1) or (c)(2) of this section and attainment by the applicable dates. If the Administrator determines that an Extreme Area has failed to achieve an emission reduction requirement set forth in subsection (b)(1) or (c)(2) of this section, and that such failure is due in whole or part to an inability to fully implement pro- visions approved pursuant to this subsection, the Administrator shall require the State to implement the contingency measures to the extent necessary to assure compliance with subsections (b)(1) and (c)(2) of this section. Any reference to the term "attainment date" in subsection (b), (c), or (d) of this section which is incorporated by reference 36a into this subsection, shall refer to the attainment date for Extreme Areas. (f) NO, requirements (1) The plan provisions required under this subpart for major stationary sources of volatile organic compounds shall also apply to major stationary sources (as defined in section 7602 of this title and subsections (c), (d), and (e) of this section) of oxides of nitrogen. This subsection shall not apply in the case of oxides of nitrogen for those sources for which the Administrator determines (when the Administrator approves a plan or plan revision) that net air quality benefits are greater in the absence of reductions of oxides of nitrogen from the sources concerned. This subsection shall also not apply in the case of oxides of nitrogen for- (A) nonattainment arcas not within an ozone transport region under section 75llc of this title, if the Administrator determines (when the Administrator approves a plan or plan revision) that additional reductions of oxides or nitrogen would not contribute to attainment of the national ambient air quality standard for ozone in the area, or (B) nonattainment areas within such an ozone transport region if the Administrator determines (when the Administrator approves a plan or plan revision) that additional reductions of oxides of nitrogen would not produce net ozone air quality benefits in such region. The Administrator shall, in the Administrator's determinations, consider the study required under section 7511f of this title. 37a (2A) If the Administrator determines that excess reductions in emissions of NO, would be achieved under paragraph (1), the Administrator may limit the application of paragraph (1) to the extent necessary to avoid achieving such excess reductions. (B) For purposes of this paragraph, excess re- ductions in emissions of NO, are emission reductions for which the Administrator determines that net air quality benefits are greater in the absence of such reductions. Alternatively, for purposes of this paragraph, excess reduc- tions in emissions of NO, are, for-- (i) nonattainment areas not within an ozone transport region under section 75llc of this title, emission reductions that the Administrator determines would not contribute to attainment of the national ambient air quality standard for ozone in the area, or (ii) nonattainment areas within such ozone transport region, emission reductions that the Administrator determines would not produce net ozone air quality benefits in such region. (3) At any time after the final report under section 7511f of this title is submitted to Congress, a person may petition the Administrator for a determination under paragraph (1) or (2) with respect to any nonattainment area or any ozone transport region under section 75llic of this title. The Administrator shall grant or deny such petition within 6 months after its filing with the Administrator. (g) Milestones 38a (1) Reductions in emissions 6 years after November 15, 1990, and at intervals of every 3 years thereafter, the State shall determine whether each nonattainment area (other than an area classified as Marginal or Moderate) has achieved a reduction in emissions during the preceding intervals equivalent to the total emission reductions required to be achieved by the end of such interval pursuant to subsection (b)(1) of this section and the corresponding requirements of subsections (c)(2)(B) and (C), (d), and (e) of this section. Such reduction shall be referred to in this section as an applicable milestone. (2) Compliance demonstration For each nonattainment area referred to in paragraph (1), not later than 90 days after the date on which an applicable milestone occurs (not including an attainment date on which a milestone occurs in cases where the standard has been attained), each State in which all or part of such area is located shall submit to the Administrator a demonstration that the milestone has been met. A demonstration under this paragraph shall be submitted in such form and manner, and shall contain such information and analysis, as_ the Administrator shall require, by rule. The Administrator shall determine whether or not a State's demonstration is adequate within 90 days after the Administrator's receipt of a demonstration which contains the information and analysis required by the Administrator. (3) Serious and Severe Areas; State election If a State fails to submit a demonstration under paragraph (2) for any Serious or Severe Area within the required period LARSEN SPAR NN ERASE RMI EPRI LL E LS IL FS EE HORII PL IES ROE HE ATF 39a or if the Administrator determines that the area has not met any applicable milestone, the State shall elect, within 90 days after such failure or determination- (A) to have the area reclassified to the next higher classification, (B) to implement specific additional measures adequate, as determined by the Administrator, to meet the next milestone as provided in the applicable contingency plan, or (C) to adopt an economic incentive program as described in paragraph (4). If the State makes an election under subparagraph (B), the Administrator shall, within 90 days after the election, review such plan and shall, if the Administrator finds the contingency plan inadequate, require further measures necessary to meet such milestone. Once the State makes an election, it shall be deemed accepted by the Administrator as meeting the election requirement. If the State fails to make an election required under this paragraph within the required 90-day period or within 6 months thereafter, the area shall be reclassified to the next higher classification by operation of law at the expiration of such 6-month period. Within 12 months after the date required for the State to make an election, the State shall submit a revision of the applicable implementation plan for the area that meets the requirements of this paragraph. The Administrator shall review such plan revision and approve or disapprove the revision within 9 months after the date of its submission. (4) Economic incentive program 40a (A) An economic incentive program under this paragraph shall be consistent with rules published by the Administrator and sufficient, in combination with other elements of the State plan, to achieve the next milestone. The State program may include a nondiscriminatory system, consistent with applicable law regarding interstate commerce, of State established emissions fees or a system of marketable permits, or a system of State fees on sale or manufacture of products the use of which contributes to ozone formation, or any combination of the foregoing or other similar measures. The program may also include incentives and requirements to reduce vehicle emissions and vehicle miles traveled in the area, including any of the transportation control measures identified in section 7408(f) of this title. (B) Within 2 years after November 15, 1990, the Administrator shall publish rules for the programs to be adopted pursuant to subparagraph (A). Such rules shall include model plan provisions which may be adopted for re- ducing emissions from permitted stationary sources, area sources, and mobile sources. The guidelines shall require that any revenues generated by the plan provisions adopted pur- suant to subparagraph (A) shall be used by the State for any of the following: (i) Providing incentives for achieving emission reductions. (ii) Providing assistance for the development of innovative technologies for the control of ozone air pollution and for the development of lower-polluting solvents and surface coatings. Such assistance shall not provide for the payment of more than 75 percent of either the costs of any project to develop such a 4la technology or the costs of development of a lower- polluting solvent or surface coating. (iii) Funding the administrative costs of State programs under this chapter. Not more than 50 percent of such revenues may be used for purposes of this clause. (5) Extreme Areas If a State fails to submit a demonstration under paragraph (2) for any Extreme Area within the required period, or if the Administrator determines that the area has not met any applicable milestone, the State shall, within 9 months after such failure or determination, submit a plan revision to imple- ment an economic incentive program which meets the requirements of paragraph (4). The Administrator shall review such plan revision and approve or disapprove the revision within 9 months after the date of its submission. (h) Rural transport areas (1) Notwithstanding any other provision of section 7511 of this title or this section, a State containing an ozone nonattainment area that does not include, and is not adjacent to, any part of a Metropolitan Statistical Area or, where one exists, a Consolidated Metropolitan Statistical Area (as defined by the United States Bureau of the Census), which area is treated by the Administrator, in the Administrator's discretion, as a rural transport area within the meaning of paragraph (2), shall be treated by operation of law as satisfying the requirements of this section if it makes the submissions required under subsection (a) of this section (relating to marginal areas). 42a (2) The Administrator may treat an ozone nonattainment area as a rural transport area if the Administrator finds that sources of VOC (and, where the Administrator determines relevant, NO,) emissions within the area do not make a significant contribution to the ozone concentrations measured in the area or in other areas. (i) Reclassified areas Each State containing an ozone nonattainment area reclassified under section 7511(b)(2) of this title shall meet such requirements of subsections (b) through (d) of this section as may be applicable to the area as reclassified, ac- cording to the schedules prescribed in connection with such requirements, except that the Administrator may adjust any applicable deadlines (other than attainment dates) to the extent such adjustment is necessary or appropriate to assure consistency among the required submissions. (j) Multi-State ozone nonattainment areas (1) Coordination among States Each State in which there is located a portion of a single ozone nonattainment area which covers more than one State (hereinafter in this section referred to as a "multi-State ozone nonattainment area") shall-- (A) take all reasonable steps to coordinate, substantively and procedurally, ‘the revisions and implementation of State implementation plans applicable to the nonattainment area concerned; and 43a (B) use photochemical grid modeling or any other analytical method determined by the Administrator, in his discretion, to be at least as effective. The Administrator may not approve any revision of a State implementation plan submitted under this part for a State in which part of a multi-State ozone nonattainment area is located if the plan revision for that State fails to comply with the requirements of this sub-section. (2) Failure to demonstrate attainment If any State in which there is located a portion of a multi- State ozone nonattainment area fails to provide a demonstration of attainment of the national ambient air quality standard for ozone in that portion within the required period, the State may petition the Administrator to make a finding that the State would have been able to make such demonstration but for the failure of one or more other States in which other portions of the area are located to commit to the imple- mentation of all measures required under this section (relating to plan submissions and requirements for ozone nonattainment areas). If the Administrator makes such finding, the provisions of section 7509 of this title (relating to sanctions) shall not apply, by reason of the failure to make such demonstration, in the portion of the multi-State ozone nonattainment area within the State submitting such petition. § 7511b. Federal ozone measures (a) Control techniques guidelines for VOC sources Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines, in 44a accordance with section 7408 of this title, for 11 categories of stationary sources of VOC emissions for which such guidelines have not been issued as of November 15, 1990, not including the categories referred to in paragraphs (3) and (4) of subsection (b) of this section. The Administrator may issue such additional control techniques guidelines as the Ad- ministrator deems necessary. (b) Existing and new CTGS (1) Within 36 months after November 15, 1990, and periodically thereafter, the Administrator shall review and, if necessary, update control technique guidance issued under section 7408 of this title before November 15, 1990. (2) In issuing the guidelines the Administrator shall give priority to those categories which the Administrator considers to make the most significant contribution to the formation of ozone air pollution in ozone nonattainment areas, including hazardous waste treatment, storage, and disposal facilities which are permitted under subtitle C of the Solid Waste Disposal Act [42 U.S.C. 6921 et seq.]. Thereafter the Administrator shall periodically review and, if necessary, revise such guidelines. (3) Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines in accordance with section 7408 of this title to reduce the aggregate emissions of volatile organic compounds into the ambient air from aerospace coatings and solvents. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds into the ambient air from the application of such coatings and solvents to such level as the Administrator determines may be - 45a achieved through the adoption of best available control measures. Such control technology guidance shall provide for such reductions in such increments and on such schedules as the Administrator determines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control technology guidance under this subsection, the Administrator shall consult with the Secretary of Defense, the Secretary of Transportation, and the Administrator of the National Aeronautics and Space Administration with regard to the establishment of specifica- tions for such coatings. In evaluating VOC reduction strategies, the guidance shall take into account the applicable requirements of section 7412 of this title and the need to protect stratospheric ozone. (4) Within 3 years after November 15, 1990, the Administrator shall issue control techniques guidelines in accordance with section 7408 of this title to reduce the aggregate emissions of volatile organic compounds and PM- 10 into the ambient air from paints, coatings, and solvents used in shipbuilding operations and ship repair. Such control techniques guidelines shall, at a minimum, be adequate to reduce aggregate emissions of volatile organic compounds and PM-10 into the ambient air from the removal or application of such paints, coatings, and solvents to such level as the Administrator determines may be achieved through the adoption of the best available control measures. Such control techniques guidelines shall provide for such reductions in such increments and on such schedules as the Administrator deter- mines to be reasonable, but in no event later than 10 years after the final issuance of such control technology guidance. In developing control techniques guidelines under this subsection, the Administrator shall consult with the appropriate Federal agencies. 46a (c) Alternative control techniques Within 3 years after November 15, 1990, the Administrator shall issue technical documents which identify alternative controls for all categories of stationary sources of volatile organic compounds and oxides of nitrogen which emit, or have the potential to emit 25 tons per year or more of such air pollutant. The Administrator shall revise and update such documents as the Administrator determines necessary. (d) Guidance for evaluating cost-effectiveness Within 1 year after November 15, 1990, the Administrator shall provide guidance to the States to be used in evaluating the relative cost-effectiveness of various options for the control of emissions from existing stationary sources of air pollutants which contribute to nonattainment of the national ambient air quality standards for ozone. (e) Control of emissions from certain sources (1) Definitions For purposes of this subsection- (A) Best available controls The term "best available controls" means the degree of emissions reduction that the Administrator determines, on the basis of technological and economic feasibility, health, environmental, and energy impacts, is achievable through the application of the most effective equipment, measures, proc- esses, methods, systems or techniques, including chemical TONER REIN ag SARI mt ENS Ya che» St aaenaee te a 47a reformulation, product or feedstock substitution, repackaging, and directions for use, consumption, storage, or disposal. (B) Consumer or commercial product The term "consumer or commercial product" means any substance, product (including paints, coatings, and solvents), or article (including any container or packaging) held by any person, the use, consumption, storage, disposal, destruction, or decomposition of which may result in the release of volatile organic compounds. The term does not include fuels or fuel additives regulated under section 7545 of this title, or motor vehicles, non-road vehicles, and non-road engines as defined under section 7550 of this title. (C) Regulated entities The term "regulated entities" means (i) manufacturers, processors, wholesale distributors, or importers of consumer or commercial products for sale or distribution in interstate commerce in the United States; or (ii) manufacturers, processors, wholesale distributors, or importers that supply the entities listed under clause (i) with such products for sale or distribution in interstate commerce in the United States. (2) Study and report (A) Study The Administrator shall conduct a study of the emissions 48a of volatile organic compounds into the ambient air from consumer and commercial products (or any combination thereof) in order to- (i) determine their potential to contribute to ozone levels which violate the national ambient air quality standard for ozone; and (ii) establish criteria for regulating consumer and commercial products or classes or categories thereof which shall be subject to control under this subsection. The study shall be completed and a report submitted to Congress not later than 3 years after November 15, 1990. (B) Consideration of certain factors In establishing the criteria under subparagraph (A)(ii), the Administrator shall take into consideration each of the following: (i) The uses, benefits, and commercial demand of consumer and commercial products. (ii) The health or safety functions (if any) served by such consumer and commercial products. (iii) Those consumer and commercial products which emit highly reactive volatile organic compounds into the ambient air. (iv) Those consumer and commercial products which are subject to the most cost-effective controls. 5 ; e a 4 49a (v) The availability of alternatives (if any) to such consumer and commercial products which are of comparable costs, considering health, safety, and environmental impacts. (3) Regulations to require emission reductions (A) In general Upon submission of the final report under paragraph (2), the Administrator shall list those categories of consumer or commercial products that the Administrator determines, based on the study, account for at least 80 percent of the VOC emissions, on a reactivity-adjusted basis, from consumer or commercial products in areas that violate the NAAQS for ozone. Credit toward the 80 percent emissions calculation shall be given for emission reductions from consumer or commercial products made after November 15, 1990. At such time, the Administrator shall divide the list into 4 groups establishing priorities for regulation based on the criteria established in paragraph (2). Every 2 years after promulgating such list, the Administrator shall regulate one group of cat- egories until all 4 groups are regulated. The regulations shall require best available controls as defined in this section. Such regulations may exempt health use products for which the Administrator determines there is no suitable substitute. In order to carry out this section, the Administrator may, by regulation, control or prohibit any activity, including the manufacture or introduction into commerce, offering for sale, or sale of any consumer or commercial product which results in emission of volatile organic compounds into the ambient air. (B) Regulated entities 50a Regulations under this subsection may be imposed only with respect to regulated entities. (C) Use of CTGS For any consumer or commercial product the Administrator may issue control techniques guidelines under this chapter in lieu of regulations required under subparagraph (A) if the Administrator determines that such guidance will be _ substantially as effective as regulations in reducing emissions of volatile organic compounds which contribute to ozone levels in areas which violate the national ambient air quality standard for ozone. (4) Systems of regulation The regulations under this subsection may include any system or systems of regulation as the Administrator may deem appropriate, including requirements for registration and labeling, self-monitoring and_ reporting, prohibitions, limitations, or economic incentives (including marketable permits and auctions of emissions rights) concerning the manufacture, processing, distribution, use, consumption, or disposal of the product. (5) Special fund Any amounts collected by the Administrator under such regulations shall be deposited in a special fund in the United States Treasury for licensing and other services, which thereafter shall be available until expended, subject to annual appropriation Acts, solely to carry out the activities of the Administrator for which such fees, charges, or collections are iis PEGE a Sone \ Lanes tour Wiles’ Tonk aos toe Ade CaaS oe IT NY WE See Sp yy. x ea Sla established or made. (6) Enforcement Any regulation established under this subsection shall be treated, for purposes of enforcement of this chapter, as a standard under section 7411 of this title and any violation of such regulation shall be treated as a violation of a requirement of section 741 1(e) of this title. (7) State administration F Each State may develop and submit to the Administrator a f procedure under State law for implementing and enforcing : regulations promulgated under this subsection. If the Administrator finds the State procedure is adequate, the ' Administrator shall approve such procedure. Nothing in this paragraph shall prohibit the Administrator from enforcing any ; applicable regulations under this subsection. & i (8) Size, etc. : No regulations regarding the size, shape, or labeling of a : product may be promulgated, unless the Administrator determines such regulations to be useful in meeting any na- f tional ambient air quality standard. (9) State consultation Any State which proposes regulations other than those adopted under this subsection shall consult with the Administrator regarding whether any other State or local subdivision has promulgated or is promulgating regulations on any products covered under this part. The Administrator shall 52a establish a clearinghouse of information, studies, and regulations proposed and promulgated regarding products covered under this subsection and disseminate such information collected as requested by State or local subdivi- sions. (f) Tank vessel standards (1) Schedule for standards (A) Within 2 years after November 15, 1990, the Administrator, in consultation with the Secretary of the Department in which the Coast Guard is operating, shall promulgate standards applicable to the emission of VOCs and any other air pollutant from loading and unloading of tank vessels (as that term is defined in section 2101 of title 46) which the Administrator finds causes, or contributes to, air pollution that may be reasonably anticipated to endanger public health or welfare. Such standards shall require the application of reasonably available control technology, considering costs, any nonair-quality benefits, environmental impacts, energy requirements and safety factors associated with alternative control techniques. To the extent practicable such standards shall apply to loading and unloading facilities and not to tank vessels. (B) Any regulation prescribed under this subsection (and any revision thereof) shall take effect after such period as the Administrator finds (after consultation with the Secretary of the department in which the Coast Guard is operating) necessary to permit the development and application of the requisite technology, giving appropriate consideration to the cost of compliance within such period, except that the effective date shall not be more than 2 years after 53a promulgation of such regulations. (2) Regulations on equipment safety Within 6 months after November 15, 1990, the Secretary of the Department in which the Coast Guard is operating shall issue regulations to ensure the safety of the equipment and operations which are to control emissions from the loading and unloading of tank vesseis, under section 3703 of title 46 and section 1225 of title 33. The standards promulgated by the Administrator under paragraph (1) and the regulations issued by a State or political subdivision regarding emissions from the loading and unloading of tank vessels shall be consistent with the regulations regarding safety of the Department in which the Coast Guard is operating. (3) Agency authority (A) The Administrator shall ensure compliance with the tank vessel emission standards prescribed under paragraph (1)(A). The Secretary of the Department in which the Coast Guard is operating shall also ensure compliance with the tank vessel standards prescribed under paragraph (1)(A). (B) The Secretary of the Department in which the Coast Guard is operating shall ensure compliance with the regulations issued under paragraph (2). (4) State or local standards After the Administrator promulgates standards under this section, no State or political subdivision thereof may adopt or attempt to enforce any standard respecting emissions from 54a tank vessels subject to regulation under paragraph (1) unless such standard is no less stringent than the standards promulgated under paragraph (1). (5) Enforcement Any standard established under paragraph (1)(A) shall be treated, for purposes of enforcement of this chapter, as a standard under section 7411 of this title and any violation of such standard shall be treated as a violation of a requirement of section 741 1(e) of this title. (g) Ozone design value study The Administrator shall conduct a study of whether the methodology in use by the Environmental Protection Agency as of November 15, 1990, for establishing a design value for ozone provides a reasonable indicator of the ozone air quality of ozone nonattainment areas. The Administrator shall obtain input from States, local subdivisions thereof, and others. The study shall be completed and a report submitted to Congress not later than 3 years after November 15, 1990. The results of the study shall be subject to peer and public review before submitting it to Congress. § 751ic. Control of interstate ozone air pollution (a) Ozone transport regions A single transport region for ozone (within the meaning of section 7506a(a) of this title), comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, and the Consolidated Metropolitan ee ee rT: 55a Statistical Area that includes the District of Columbia, is hereby established by operation of law. The provisions of section 7506a(a)(1) and (2) of this title shall apply with respect to the transport region established under this section and any other transport region established for ozone, except to the extent inconsistent with the provisions of this section. The Administrator shall convene the commission required (under section 7506a(b) of this title) as a result of the establishment of such region within 6 months of November 15, 1990. (b) Plan provisions for States in ozone transport regions (1) In accordance with section 7410 of this title, not later than 2 years after November 15, 1990 (or 9 months after the subsequent inclusion of a State in a transport region established for ozone), each State included within a transport region established for ozone shall submit a State implementation plan or revision thereof to the Administrator which requires the following-- (A) that each area in such State that is in an ozone transport region, and that is a metropolitan statistical area or part thereof with a population of 100,000 or more comply with the provisions of section 75lla(c)(2)(A) of this title (pertaining to enhanced vehicle inspection and maintenance programs); and (B) implementation of reasonably available control technology with respect to all sources of volatile organic compounds in the State covered by a control techniques guideline issued before or after November 15, 1990. (2) Within 3 years after November 15, 1990, the Administrator shall complete a study identifying control 56a measures capable of achieving emission reductions comparable to those achievable through vehicle refueling controls contained in section 751 1a(b)(3) of this title, and such measures or such vehicle refueling controls shall be implemented in accordance with the provisions of this section. Notwithstanding other deadlines in this section, the applicable implementation plan shall be revised to reflect such measures within | year of completion of the study. For purposes of this section any stationary source that emits or has the potential to emit at least 50 tons per year of volatile organic compounds shall be considered a major stationary source and subject to the requirements which would be applicable to major stationary sources if the area were classified as a Moderate nonattainment area. (c) Additional control measures (1) Recommendations Upon petition of any State within a transport region established for ozone, and based on a majority vote of the Governors on the Commission (or their designees), the Commission may, after notice and opportunity for public comment, develop recommendations for additional control measures to be applied within all or a part of such transport region if the commission determines such measure are necessary to bring any area in such region into attainment by the dates provided by this subpart. The commission shall transmit such recommendations to the Administrator. (2) Notice and review Whenever the Administrator receives recommendations prepared by a commission pursuant to paragraph (1) (the date REEL TANG PURE RTP NEON BEES IN BAN, C8 ORISA HRT MOY 2 adiaiiati 57a of receipt of which shall hereinafter in this section be referred to as the "receipt date"), the Administrator shall- (A) immediately publish in the Federal Register a notice stating that the recommendations are available and provide an opportunity for public hearing within 90 days beginning on the receipt date; and (B) commence a review of the recommendations to determine whether the control measures in_ the recommendations are necessary to bring any area in such region into attainment by the dates provided by this subpart and are otherwise consistent with this chapter. (3) Consultation In undertaking the review required under paragraph (2)(B), the Administrator shall consult with members of the commission of the affected States and shall take into account the data, views, and comments received pursuant to paragraph (2)(A). (4) Approval and disapproval Within 9 months after the receipt date, the Administrator shall (A) determine whether to approve, disapprove, or partially disapprove and_ ppartially approve the recommendations; (B) notify the commission in writing of such approval, disapproval, or partial disapproval; and (C) publish such determination in the Federal Register. If the Administrator disapproves or partially disapproves the recom- mendations, the Administrator shall specify (i) why any disapproved additional control 58a measures are not necessary to bring any area in such region into attainment by the dates provided by this subpart or are otherwise not consistent with the chapter; and (ii) recommendations concerning equal or more effective actions that could be taken by the commission to conform the disapproved portion of the recommendations to the requirements of this section. (5) Finding Upon approval or partial approval of recommendations submitted by a commission, the Administrator shall issue to each State which is included in the transport region and to which a requirement of the approved plan applies, a finding under section 7410(k)(5) of this title that the implementation plan for such State is inadequate to meet the requirements of section 7410(a)(2)(D) of this title. Such finding shall require each such State to revise its implementation plan to include the approved additional control measures within one year after the finding is issued. (d) Best available air quality monitoring and modeling For purposes of this section, not later than 6 months after November 15, 1990, the Administrator shall promulgate criteria for purposes of determining the contribution of sources in one area to concentrations of ozone in another area which is a nonattainment area for ozone. Such criteria shall require that the best available air quality monitoring and modeling techniques be used for purposes of making such determina- tions. b —\ o ” EAE Ee ee ee ~ ‘ me ve 59a § 751ld. Enforcement for Severe and Extreme ozone nonattainment areas for failure to attain (a) General rule Each implementation plan revision required under section 751 la(d) and (e) of this title (relating to the attainment plan for Severe and Extreme ozone nonattainment areas) shall pro- vide that, if the area to which such plan revision applies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major stationary source of VOCs located in the area shall, except as otherwise provided under subsection (c) of this section, pay a fee to the State as a penalty for such failure, computed in accordance with subsection (b) of this section, for each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan revision should include procedures for assessment and collection of such fees. (b) Computation of fee (1) Fee amount The fee shall equal $5,000, adjusted in accordance with paragraph (3), per ton of VOC emitted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under paragraph (2). (2) Baseline amount For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as_ the 60a Administrator may provide, as the lower of the amount of actual VOC emissions ("actuals") or VOC emissions allowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of VOC emissions allowed under the applicable implementation plan ("allowables")) during the attainment year. Notwithstanding the preceding sentence, the Administrator may issue guidance authorizing the baseline amount to be determined in accordance with the lower of average actuals or average allowables, determined over a period of more than one cal- endar year. Such guidance may provide that such average calculation for a specific source may be used if that source's emissions are irregular, cyclical, or otherwise vary signifi- cantly from year to year. (3) Annual adjustment The fee amount under paragraph (1) shall be adjusted annually, beginning in the year beginning after 1990, in accordance with section 766la(b)(3)(B)(v) of this title (relating to inflation adjustment). (c) Exception Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) of this section with respect to emissions during any year that is treated as an Extension Year under section 7511(a)(5) of this title. (d) Fee collection by Administrator If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this 6la section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with procedures promulgated by the Administrator, the unpaid fees required under subsection (a) of this section. If the Administrator makes such a finding under section 7509(a)(4) of this title, the Administrator may collect fees for periods before the determination, plus interest computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes), to the extent the Administrator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of section 7661a(b)(3)(C) of this title (relating to penalties and use of the funds, respectively) shall apply with respect to fees collected under this subsection. (e) Exemptions for certain small areas For areas with a total population under 200,000 which fail to attain the standard by the applicable attainment date, no sanction under this section or under any other provision of this chapter shall apply if the area can demonstrate, consistent with guidance issued by the Administrator, that attainment in the area is prevented because of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all requirements and implemented all measures applicable to the area under this chapter. § 751le. Transitional areas If an area designated as an ozone nonattainment area as of November 15, 1990, has not violated the national primary 62a ambient air quality standard for ozone for the 36-month period commencing on January 1, 1987, and ending on December 31, 1989, the Administrator shall suspend the application of the requirements of this subpart to such area until December 31, 1991. By June 30, 1992, the Administrator shall determine by order, based on the area’s design value as of the attainment date, whether the area attained such standard by December 31, 1991. If the Administrator determines that the area attained the standard, the Administrator shall require, as part of the order, the State to submit a maintenance plan for the area within 12 months of such determination. If the Administrator determines that the area failed to attain the standard, the Administrator shall, by June 30, 1992, designate the area as nonattainment under section 7407(d)(4) of this title. § 7511f. NO, and VOC study The Administrator, in conjunction with the National Academy of Sciences, shall conduct a study on the role of ozone precursors in tropospheric ozone formation and control. The study shall examine the roles of NO, and VOC emission reductions, the extent to which NO,. reductions may contribute (or be counterproductive) to achievement of attainment in different non-attainment areas, the sensitivity of ozone to the control of NO,, the availability and extent of controls for NO,, the role of biogenic VOC emissions, and the basic information required for air quality models. The study shall be completed and a proposed report made public for 30 days comment within I year of November 15, 1990, and a final report shall be submitted to Congress within 15 months after November 15, 1990. The Administrator shall utilize all avail- able information and studies, as well as develop additional information, in conducting the study required by this section. RPMs ea aS ae eo AER E ip STEEN NI mt AS? FPR ALICE ASE OPS AER OLSE oe Ses | 63a Excerpt from Section 307 of the Clean Air Act § 7607. Administrative Proceedings and Judicial Review * * * (b) Judicial Review (1) A petition for review of action of the Administrator in promulgating any national primary or secondary ambient air quality standard, any emission standard or requirement under section 7412 of this title, any standard of performance or requirement under section 7411 of this title, any standard under section 7521 of this tile (other than a standard required to be prescribed under section 7521(b)(1) of this title), any determination under section 7521(b)(5) of this title, any control or prohibition under section 7545 of this title, any standard under section 7571 of this title, any rule issued under section 7413, 7419, or under section 7420 of this title, or any other nationally applicable regulations promulgated, or final action taken, by the Administrator under this chapter may be filed only in the United States Court of Appeals for the District of Columbia. A _ petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 7410 of this title or section 7411(d) of this title, any order under section 7411(j) of this title, under section 7412 of this title,, under section 7419 of this title, or under section 7420 of this title, or his action under section 1857c-10(c)(2)(A), (B), or (C) of this title (as in effect before August 7, 1977) or under regulations thereunder, or revising regulations for enhanced monitoring and compliance certification programs under section 7414(a)(3) of this title, or any other final action of the Administrator under this chapter 64a (including any denial or disapproval by the Administrator under subchapter I of this chapter) which is locally or regionally applicable may be filed only in the United States Court of Appeals for the appropriate circuit. Notwithstanding the preceding sentence a petition for review of any action referred to in such sentence may be filed only in the United States Court of Appeals for the District of Columbia if such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination. Any petition for review under this subsection shall be filed within sixty days from the date notice of such promulgation, approval, or action appears in the Federal Register, except that if such petition is based solely on grounds arising after such sixtieth day, then any petition for review under this subsection shall be filed within sixty days after such grounds arise. The filing of a petition for reconsideration by the Administrator of any otherwise final rule or action shall not affect the finality of such rule or action for purposes of judicial review nor extend the time within which a petition for judicial review of such rule or action under this section may be filed, and shall not postpone the effectiveness of such rule or action. (2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement. Where a final decision by the Administrator defers performance of any nondiscretionary statutory action to a later time, any person may challenge the deferral pursuant to paragraph (1). 65a Excerpt from The Transportation Equity Act for the 21" Century Title VI--Ozone And Particulate Matter Standards § 6101. Findings And Purpose (a) The Congress finds that-- (1) _ there is a lack of air quality monitoring data for fine particle levels, measured as PM2.5, in the United States and the States should receive full funding for the monitoring efforts; (2) such data would provide a basis for designating areas as attainment or nonattainment for any PM2.5 national ambient air quality standards pursuant to the standards promulgated in July 1997; (3) the President of the United States directed the Administrator of the Environmental Protection Agency (referred to in this title as the “Administrator’) in a memorandum dated July 16, 1997, to complete the next periodic review of the particulate matter national ambient air quality standards by July 2002 in order to determine “whether to revise or maintain the standards”; (4) the Administrator has stated that 3 years of air quality monitoring data for fine particle levels, measured as PM2.5 and performed in accordance with any applicable Federal reference methods, is appropriate for designating areas as attainment or nonattainment pursuant to the July 1997 promulgated standards; and 66a (S) the Administrator has acknowledged that in drawing boundaries for attainment and nonattainment areas for the July 1997 ozone national air quality standards, Governors would benefit from considering implementation guidance from EPA on drawing area boundaries. (b) The purposes of this title are-- (1) to ensure that 3 years of air quality monitoring data regarding fine particle levels are gathered for use in the determination of area attainment or nonattainment designations respecting any PM2.5 national ambient air quality standards; (2) to ensure that the Governors have adequate time to consider implementation guidance from EPA on drawing area boundaries prior to submitting area designations respecting the July 1997 ozone national ambient air quality standards; (3) to ensure that the schedule for implementation of the July 1997 revisions of the ambient air quality standards for particulate matter and the schedule for the Environmental Protection Agency’s visibility regulations related to regional haze are consistent with the timetable for implementation of such particulate matter standards as set forth in the President’s Implementation Memorandum dated July 16, 1997. § 6102. Particulate Matter Monitoring Program. (a) Through grants under section 103 of the Clean Air Act the Administrator of the Environmental Protection Agency shall use appropriated funds no later than fiscal year 2000 to fund 100 percent of the cost of the establishment, purchase, operation and maintenance of a PM2.5 monitoring network necessary to implement the national ambient air quality 67a standards for PM2.5 under section 109 of the Clean Air Act. This implementation shall not result in a diversion or reprogramming of funds from other Federal, State or local Clean Air Act activities. Any funds previously diverted or reprogrammed from section 105 Clean Air Act grants for PM2.5 monitors must be restored to State or local air programs in fiscal year 1999. (b) EPA and the States, consistent with their respective authorities under the Clean Air Act, shall ensure that the national network (designated in subsection (a)) which consists of the PM2.5 monitors necessary to implement the national ambient air quality standards is established by December 31, 1999. (c)(1) The Governors shall be required to submit designations referred to in section 107(d)(1) of the Clean Air Act for each area following promulgation of the July 1997 PM2.5 national ambient air quality standard within | year after receipt of 3 years of air quality monitoring data performed in accordance with any applicable Federal reference methods for the relevant areas. Only data from the monitoring network designated in subsection (a) and other Federal reference method PM2.5 monitors shall be considered for such designations. Nothing in the previous sentence shall be construed as affecting the Governor’s authority to designate an area initially as nonattainment, and the Administrator’s authority to promulgate the designation of an area as nonattainment, under section 107(d)(1) of the Clean Air Act, based on its contribution to ambient air quality in a nearby nonattainment area. (2) For any area designated as nonattainment for the July 1997 PM2.5 national ambient air quality standard in 68a accordance with the schedule set forth in this section, notwithstanding the time limit prescribed in paragraph (2) of section 169B(e) of the Clean Air Act, the Administrator shall require State implementation plan revisions referred to in such paragraph (2) to be submitted at the same time as State implementation plan revisions referred to in section 172 of the Clean Air Act implementing the revised national ambient air quality standard for fine particulate matter are required to be submitted. For any area designated as attainment or unclassifiable for such standard, the Administrator shall require the State implementation plan revisions referred to in such paragraph (2) to be submitted | year after the area has been so designated. The preceding provisions of this paragraph shall not preclude the implementation of the agreements and recommendations set forth in the Grand Canyon Visibility Transport Commission Report dated June 1996. (d) The Administrator shall promulgate the designations referred to in section 107(d)(1) of the Clean Air Act for each area following promulgation of the July 1997 PM2.5 national ambient air quality standard by the earlier of 1 year after the initial designations required under subsection (c)(1) are required to be submitted or December 31, 2005. (e) The Administrator shall conduct a field study of the ability of the PM2.5 Federal Reference Method to differentiate those particles that are larger than 2.5 micrograms in diameter. This study shall be completed and provided to the Committee on Commerce of the House of Representatives and the Committee on Environment and Public Works of the United States Senate no later than 2 years from the date of enactment of this Act. 69a APPENDIX B Attachment to Presidential Memorandum, “Implementation Plan for Revised Air Quality Standards,” 62 Fed. Reg. 38,421 (1997) (excerpts) Memorandum of July 16, 1997; Implementation of Revised Air Quality Standards for Ozone and Particulate Matter Memorandum for the Administrator of the Environmental Protection Agency i * * a In order for the implementation of these standards to proceed in accordance with the goals I have established, | hereby direct you, in consultation with all affected agencies and parties, to undertake the steps appropriate under law to carry out the attached plan and to complete all necessary guidance and rulemaking no later than December 31, 1998. Aa * * /s/ William J. Clinton % * * Implementation Plan for Revised Air Quality Standards * * * Implementation of Ozone Standard Phase-out of 1-hour standard 70a Subpart 2 of part D of Title | of the CAA addresses the requirements for different classifications of nonattainment areas that do not meet the current 1-hour standard (i.e., marginal, moderate, serious, and severe). These requirements include such items as mandatory control measures, annual rate of progress requirements for emission reductions, and offset ratios for the emissions from new or modified stationary sources. These requirements have contributed significantly to the improvements in air quality since 1990. Although the EPA initially offered an interpretation of the CAA in the proposed Interim Implementation Policy (IIP) (61 FR 65764, December 13, 1996) under which the provisions of Subpart 2 would not apply to existing ozone nonattainment areas once a new ozone NAAQS is promulgated, the EPA has reconsidered that interpretation after receiving comments on the proposed IIP. Based on EPA’s legal review, the Agency has concluded that Subpart 2 should continue to apply as a matter of law for the purpose of achieving attainment of the current -1-hour standard. Once an area attains the 1l-hour standard, those provisions will no longer apply and the area’s implementation of the new 8-hour standard would be governed only by the provisions of Subpart | of Part D of Title I. * * * Implementation of New 8-hour Ozone standard This section discusses the general timeline for implementing the 8-hour standard, the importance of regional approaches to address ozone and options for classifying and designating areas relative to the 8-hour ozone NAAQS. General Timeline Tla Following promulgation of a revised NAAQS, the Clean Air Act provides up to 3 years for State governors to recommend and the EPA to designate areas according to their most recent air quality. In addition, States will have up to 3 years from designation to develop and submit State Implementation Plans (SIPs) to provide for attainment of the new standard. * * * Implementation of Particulate Matter Standards As required under the Act, within the next 5 years the EPA will complete the next periodic review of the PM criteria and standards, including review by the CASAC. As with all NAAQS reviews, the purpose is to update the pertinent scientific and technical information and to determine whether it is appropriate to revise the standards in order to protect the public health with an adequate margin of safety or to protect the public welfare. Although the EPA has concluded that the current scientific knowledge provides a strong basis for the revised PM,, and new PM, , standards, there remain scientific uncertainties associated with the health and environmental effects of PM and the means of reducing them. The following steps discussed below and in Appendix 1, Interagency Research Program, will address these concerns. First, recognizing the importance of developing a better understanding of the effects of fine particles on human health, including their causes and mechanisms, as well as the species and sources of PM,,, the EPA will continue to sponsor research, particularly in these areas. Second, the Administrator of the EPA will promptly initiate a new review of the scientific criteria on the effects of airborne particles on human health and the environment. Within 90 days, the EPA 72a will develop and provide to CASAC a plan and proposed schedule for this review to assure that the review is completed within 5 years. The plan and schedule will be published in the Federal Register. Thus, by July 2002, the Agency will have determined, based on data available from its review, whether to revise or maintain the standards. This determination will have been made before any areas have been designated nonattainment under the PM,, standards and _ before imposition of any new controls related to the PM, , standards. Implementation of New PM, , NAAQS As set forth in the EPA’s final action regarding PM, the EPA is establishing a new indicator for fine particles (i.e., PM, ;) and promulgating new PM,,_ standards. Monitoring and planning will be required before control measures to address these standards would be required. Therefore, the first priority for implementing them is establishment of a comprehensive monitoring network to determine ambient fine particle concentrations across the country. The monitoring network will help the EPA and the States determine which areas do not meet the new air quality standards, what are the major sources of PM, in various regions, and what action is needed to clean up the air. The EPA and the States will consult with affected stakeholders on the design of the network and will then establish the network, which will consist of approximately 1,500 monitors. All monitors will provide for limited speciation, or analysis of the chemical composition, of the particles measured. At least 50 of the monitors will provide for a more comprehensive speciation of the particles. The EPA will work with states to deploy the PM,, monitoring network. Based on the ambient monitoring data we have seen to date, these would generally not include agricultural areas. 73a The EPA will fund the cost of purchasing the monitors, as well as the cost of analyzing particles collected at the monitors to determine their chemical composition. Because the EPA is establishing standards for a new indicator for PM (i.e., PM,,), it is critical to develop the best information possible before attainment and nonattainment designation decisions are made. Three calendar years of Federal reference method monitoring data will be used to determine whether areas meet or do not meet the PM,, standards. Three years of data will be available from the earliest monitors in the spring of 2001, and 3 years of data will be available from all monitors in 2004. Following this monitoring schedule and allowing time for data analysis, Governors and the EPA will not be able to make the first determinations as to which areas should be designated nonattainment until at least 2002, 5 years from now. The Clean Air Act, however, requires that the EPA make designation determinations (i..e, attainment, nonattainment, or unclassifiable) within 2 to 3 years of revising a NAAQS. To fulfill this requirement, in 1999 the EPA will issue “unclassifiable” designations for PM,, These designations will not trigger the planning or control requirements of part D of Title I of the Act. When the EPA designates PM, , nonattainment areas pursuant to the Governors’ recommendations beginning in 2002, areas will be allowed 3 years to develop and submit to the EPA pollution control plans showing how they will meet the new standards. Areas will then have up to 10 years from their redesignation to nonattainment to attain the PM,, standards with the possibility of two 1-year extensions. * * * 74a APPENDIX C “National Ambient Air Quality Standards for Ozone,” 62 Fed. Reg. 38,856 (1997) (excerpts) ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 50 [ADA-95-58; FRL-5725-3] RIN-2060-AES7 National Ambient Air Quality Standards for Ozone Agency: Environmental Protection Agency (EPA) Action: Final rule. * * * In the proposal, EPA proposed that the revocation of the existing 1-hour O, standard be delayed for certain purposes until EPA had approved State Implementation Plans to implement the new 8-hour O, standard. EPA had proposed continuing the applicability of the 1-hour standard in this way in order to facilitate continuity in public health protection during the transition to a new standard. (See Memorandum from John S. Seitz to Mary D. Nichols, November 20, 1996; Docket No. A-95-58, item II-B-3.) Also, at the time of the proposal of the new O, standard, EPA had proposed an interpretation of the Act in the proposed Interim Implementation Policy (61 FR 65764, December 13, 1996) 75a under which the provisions of subpart 2 of part D of Title I of the Act would not apply to existing O, nonattainment areas once a new O, standard becomes effective. In light of comments received regarding the interpretation proposed in the Interim Implementation Policy, EPA has reconsidered that interpretation and now believes that the Act should be interpreted such that the provisions of subpart 2 continue to apply to O, nonattainment areas for purposes of achieving attainment of the current I-hour standard. As a consequence, the provisions of subpart 2, which govern implementation of the I-hour O, _ standard in O, nonattainment areas, will continue to apply as a matter of law for so long as an area is not attaining the 1-hour standard. Once an area attains that standard, however, the purpose of the provisions of subpart 2 will have been achieved and those provisions will no longer apply. However, the provisions of subpart | of part D of Title I of the Act would apply to the implementation of the new 8-hour O, standards. To facilitate the implementation of those provisions and to ensure a smooth transition to the implementation of the new 8-hour standard, the 1-hour standard should remain applicable to areas that are not attaining the 1-hour standard. Therefore, the 1-hour standard will remain applicable to an area until EPA determines that it has attained the 1-hour standard, at which point the 1-hour standard will no longer apply to that area. 76a D. 1990 Act Amendments Contrary to the view expressed in some public comments, EPA maintains that the provisions of subpart 2 of Part D of Title I of the Clean Air Act, enacted in 1990, do not preclude EPA from revising the O, standard. The provisions of subpart 2 simply do not limit EPA’s clear authority under section 109 to revise the standard. The basic contention of the commenters is' that because the provisions of subpart 2 are linked to the current 1-hour, 0.12 ppm O, standard, they prohibit EPA from revising the O, standard. These provisions, however, do not lead to such a conclusion. Moreover, the view expressed in these comments ignores provisions indicating that Congress believed that EPA could revise the O, NAAQS. At the outset, it should be noted that Congress expressly authorized EPA to revise any ambient air quality standard in section 109. That section, which requires EPA to review and revise, as appropriate, each NAAQS every 5 years, contains no language expressly or implicitly prohibiting EPA from revising a NAAQS. If Congress had intended to preclude EPA from reviewing and revising a NAAQS, which is one of EPA’s fundamental functions, Congress would have specifically done so. Clearly, Congress knew how to preclude EPA from exercising otherwise existing regulatory authority and did so in_ other instances. See section 202(b)(1)(C)(expressly precluding EPA from modifying certain motor vehicle standards prior to model year 2004); section 112(b)(2)(preventing EPA from adding to the list of hazardous air pollutants any air pollutants that are listed under section 108(a) unless they meet the specific exceptions of section 112(b)(2)); section 249(e)(3), (f) and section T7Ta 250(b)(limiting EPA’s authority regarding certain clean-fuel vehicle programs). No such language was included in either section 109 or elsewhere in the Act and no such implication may properly be based on the provisions of subpart 2 of Part D of Title I. Second, other provisions of the Act expressly contemplate EPA’s ability to revise any NAAQS, and provide no indication that such ability is limited to standards other than those whose implementation is the subject of subparts 2, 3 and 4 of Part D. For example, section 110(a)(2)(H)(i) provides that SIPs are to provide for revisions “from time to time as may be necessary to take account of revisions of such national primary or secondary ambient air quality standard ***.” Section 107(d)(1)(A) provides a process for designating areas as attainment, nonattainment, or unclassifiable “after promulgation of a new or revised standard for any pollutant under section 109 ***.” Section 172(e) addresses modifications of national primary ambient air quality standards. Finally, section 172(a)(1) expressly contemplates that EPA may revise a standard in effect at the time of enactment of the 1990 Clean Air Act Amendments. Section 172(a)(1)(A) provides EPA with authority to classify nonatta [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_0669%3A2. Public record. Not legal advice.