42 USC 7426. Interstate pollution abatement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Written notice to all nearby States
Each applicable implementation plan shall --
(1) require each major proposed new (or modified) source --
(A) subject to part C of this subchapter (relating to significant
deterioration of air quality) or
(B) which may significantly contribute to levels of air pollution in
excess of the national ambient air quality standards in any air quality
control region outside the State in which such source intends to locate
(or make such modification),
to provide written notice to all nearby States the air pollution
levels of which may be affected by such source at least sixty days prior
to the date on which commencement of construction is to be permitted by
the State providing notice, and
(2) identify all major existing stationary sources which may have the
impact described in paragraph (1) with respect to new or modified
sources and provide notice to all nearby States of the identity of such
sources not later than three months after August 7, 1977.
(b) Petition for finding that major sources emit or would emit
prohibited air pollutants
Any State or political subdivision may petition the Administrator for
a finding that any major source or group of stationary sources emits or
would emit any air pollutant in violation of the prohibition of section
7410(a)(2)(D)(ii) of this title or this section. Within 60 days after
receipt of any petition under this subsection and after public hearing,
the Administrator shall make such a finding or deny the petition.
(c) Violations; allowable continued operation
Notwithstanding any permit which may have been granted by the State
in which the source is located (or intends to locate), it shall be a
violation of this section and the applicable implementation plan in such
State --
(1) for any major proposed new (or modified) source with respect to
which a finding has been made under subsection (b) of this section to be
constructed or to operate in violation of the prohibition of section
7410(a)(2)(D)(ii) of this title or this section, or
(2) for any major existing source to operate more than three months
after such finding has been made with respect to it.
The Administrator may permit the continued operation of a source
referred to in paragraph (2) beyond the expiration of such three-month
period if such source complies with such emission limitations and
compliance schedules (containing increments of progress) as may be
provided by the Administrator to bring about compliance with the
requirements contained in section 7410(a)(2)(D)(ii) of this title or
this section as expeditiously as practicable, but in no case later than
three years after the date of such finding. Nothing in the preceding
sentence shall be construed to preclude any such source from being
eligible for an enforcement order under section 7413(d) /1/ of this
title after the expiration of such period during which the Administrator
has permitted continuous operation.
(July 14, 1955, ch. 360, title I, 126, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 123, 91 Stat. 724, and amended Nov. 16, 1977, Pub.
L. 95-190, 14(a)(39), 91 Stat. 1401; Nov. 15, 1990, Pub. L. 101-549,
title I, 109(a), 104 Stat. 2469.)
Section 7413(d) of this title, referred to in subsec. (c), was
amended generally by Pub. L. 101-549, title VII, 701, Nov. 15, 1990,
104 Stat. 2672, and, as so amended, no longer relates to final
compliance orders.
1990 -- Subsec. (b). Pub. L. 101-549, 109(a)(1), inserted ''or
group of stationary sources'' after ''any major source'' and substituted
''section 7410(a)(2)(D)(ii) of this title or this section'' for
''section 7410(a)(2)(E)(i) of this title''.
Subsec. (c). Pub. L. 101-549, 109(a)(2)(A), which directed the
insertion of ''this section and'' after ''violation of'', was executed
by making the insertion after first reference to ''violation of'' to
reflect the probable intent of Congress.
Pub. L. 101-549, 109(a)(2)(B), substituted ''section
7410(a)(2)(D)(ii) of this title or this section'' for ''section
7410(a)(2)(E)(i) of this title'' in par. (1) and penultimate sentence.
1977 -- Subsec. (a)(1). Pub. L. 95-190 substituted ''(relating to
significant deterioration of air quality)'' for '', relating to
significant deterioration of air quality''.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
/1/ See References in Text note below.
42 USC 7427. Public notification
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Warning signs; television, radio, or press notices or
information
Each State plan shall contain measures which will be effective to
notify the public during any calendar /1/ on a regular basis of
instances or areas in which any national primary ambient air quality
standard is exceeded or was exceeded during any portion of the preceding
calendar year to advise the public of the health hazards associated with
such pollution, and to enhance public awareness of the measures which
can be taken to prevent such standards from being exceeded and the ways
in which the public can participate in regulatory and other efforts to
improve air quality. Such measures may include the posting of warning
signs on interstate highway access points to metropolitan areas or
television, radio, or press notices or information.
(b) Grants
The Administrator is authorized to make grants to States to assist in
carrying out the requirements of subsection (a) of this section.
(July 14, 1955, ch. 360, title I, 127, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 124, 91 Stat. 725.)
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
/1/ So in original. Probably should be ''calendar year''.
42 USC 7428. State boards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) /1/ Not later than the date one year after August 7, 1977, each
applicable implementation plan shall contain requirements that --
(1) any board or body which approves permits or enforcement orders
under this chapter shall have at least a majority of members who
represent the public interest and do not derive any significant portion
of their income from persons subject to permits or enforcement orders
under this chapter, and
(2) any potential conflicts of interest by members of such board or
body or the head of an executive agency with similar powers be
adequately disclosed.
A State may adopt any requirements respecting conflicts of interest
for such boards or bodies or heads of executive agencies, or any other
entities which are more stringent than the requirements of paragraph (1)
and (2), and the Administrator shall approve any such more stringent
requirements submitted as part of an implementation plan.
(July 14, 1955, ch. 360, title I, 128, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 125, 91 Stat. 725.)
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
/1/ So in original. Section enacted without a subsec. (b).
42 USC 7429. Solid waste combustion
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) New source performance standards
(1) In general
(A) The Administrator shall establish performance standards and other
requirements pursuant to section 7411 of this title and this section for
each category of solid waste incineration units. Such standards shall
include emissions limitations and other requirements applicable to new
units and guidelines (under section 7411(d) of this title and this
section) and other requirements applicable to existing units.
(B) Standards under section 7411 of this title and this section
applicable to solid waste incineration units with capacity greater than
250 tons per day combusting municipal waste shall be promulgated not
later than 12 months after November 15, 1990. Nothing in this
subparagraph shall alter any schedule for the promulgation of standards
applicable to such units under section 7411 of this title pursuant to
any settlement and consent decree entered by the Administrator before
November 15, 1990: Provided, That, such standards are subsequently
modified pursuant to the schedule established in this subparagraph to
include each of the requirements of this section.
(C) Standards under section 7411 of this title and this section
applicable to solid waste incineration units with capacity equal to or
less than 250 tons per day combusting municipal waste and units
combusting hospital waste, medical waste and infectious waste shall be
promulgated not later than 24 months after November 15, 1990.
(D) Standards under section 7411 of this title and this section
applicable to solid waste incineration units combusting commercial or
industrial waste shall be proposed not later than 36 months after
November 15, 1990, and promulgated not later than 48 months after
November 15, 1990.
(E) Not later than 18 months after November 15, 1990, the
Administrator shall publish a schedule for the promulgation of standards
under section 7411 of this title and this section applicable to other
categories of solid waste incineration units.
(2) Emissions standard
Standards applicable to solid waste incineration units promulgated
under section 7411 of this title and this section shall reflect the
maximum degree of reduction in emissions of air pollutants listed under
section /1/ (a)(4) that the Administrator, taking into consideration the
cost of achieving such emission reduction, and any non-air quality
health and environmental impacts and energy requirements, determines is
achievable for new or existing units in each category. The
Administrator may distinguish among classes, types (including mass-burn,
refuse-derived fuel, modular and other types of units), and sizes of
units within a category in establishing such standards. The degree of
reduction in emissions that is deemed achievable for new units in a
category shall not be less stringent than the emissions control that is
achieved in practice by the best controlled similar unit, as determined
by the Administrator. Emissions standards for existing units in a
category may be less stringent than standards for new units in the same
category but shall not be less stringent than the average emissions
limitation achieved by the best performing 12 percent of units in the
category (excluding units which first met lowest achievable emissions
rates 18 months before the date such standards are proposed or 30 months
before the date such standards are promulgated, whichever is later).
(3) Control methods and technologies
Standards under section 7411 of this title and this section
applicable to solid waste incineration units shall be based on methods
and technologies for removal or destruction of pollutants before,
during, or after combustion, and shall incorporate for new units siting
requirements that minimize, on a site specific basis, to the maximum
extent practicable, potential risks to public health or the environment.
(4) Numerical emissions limitations
The performance standards promulgated under section 7411 of this
title and this section and applicable to solid waste incineration units
shall specify numerical emission limitations for the following
substances or mixtures: particulate matter (total and fine), opacity
(as appropriate), sulfur dioxide, hydrogen chloride, oxides of nitrogen,
carbon monoxide, lead, cadmium, mercury, and dioxins and dibenzofurans.
The Administrator may promulgate numerical emissions limitations or
provide for the monitoring of postcombustion concentrations of surrogate
substances, parameters or periods of residence time in excess of stated
temperatures with respect to pollutants other than those listed in this
paragraph.
(5) Review and revision
Not later than 5 years following the initial promulgation of any
performance standards and other requirements under this section and
section 7411 of this title applicable to a category of solid waste
incineration units, and at 5 year intervals thereafter, the
Administrator shall review, and in accordance with this section and
section 7411 of this title, revise such standards and requirements.
(b) Existing units
(1) Guidelines
Performance standards under this section and section 7411 of this
title for solid waste incineration units shall include guidelines
promulgated pursuant to section 7411(d) of this title and this section
applicable to existing units. Such guidelines shall include, as
provided in this section, each of the elements required by subsection
(a) of this section (emissions limitations, notwithstanding any
restriction in section 7411(d) of this title regarding issuance of such
limitations), subsection (c) of this section (monitoring), subsection
(d) of this section (operator training), subsection (e) of this section
(permits), and subsection (h)(4) /2/ of this section (residual risk).
(2) State plans
Not later than 1 year after the Administrator promulgates guidelines
for a category of solid waste incineration units, each State in which
units in the category are operating shall submit to the Administrator a
plan to implement and enforce the guidelines with respect to such units.
The State plan shall be at least as protective as the guidelines
promulgated by the Administrator and shall provide that each unit
subject to the guidelines shall be in compliance with all requirements
of this section not later than 3 years after the State plan is approved
by the Administrator but not later than 5 years after the guidelines
were promulgated. The Administrator shall approve or disapprove any
State plan within 180 days of the submission, and if a plan is
disapproved, the Administrator shall state the reasons for disapproval
in writing. Any State may modify and resubmit a plan which has been
disapproved by the Administrator.
(3) Federal plan
The Administrator shall develop, implement and enforce a plan for
existing solid waste incineration units within any category located in
any State which has not submitted an approvable plan under this
subsection with respect to units in such category within 2 years after
the date on which the Administrator promulgated the relevant guidelines.
Such plan shall assure that each unit subject to the plan is in
compliance with all provisions of the guidelines not later than 5 years
after the date the relevant guidelines are promulgated.
(c) Monitoring
The Administrator shall, as part of each performance standard
promulgated pursuant to subsection (a) of this section and section 7411
of this title, promulgate regulations requiring the owner or operator of
each solid waste incineration unit --
(1) to monitor emissions from the unit at the point at which such
emissions are emitted into the ambient air (or within the stack,
combustion chamber or pollution control equipment, as appropriate) and
at such other points as necessary to protect public health and the
environment;
(2) to monitor such other parameters relating to the operation of the
unit and its pollution control technology as the Administrator
determines are appropriate; and
(3) to report the results of such monitoring.
Such regulations shall contain provisions regarding the frequency of
monitoring, test methods and procedures validated on solid waste
incineration units, and the form and frequency of reports containing the
results of monitoring and shall require that any monitoring reports or
test results indicating an exceedance of any standard under this section
shall be reported separately and in a manner that facilitates review for
purposes of enforcement actions. Such regulations shall require that
copies of the results of such monitoring be maintained on file at the
facility concerned and that copies shall be made available for
inspection and copying by interested members of the public during
business hours.
(d) Operator training
Not later than 24 months after November 15, 1990, the Administrator
shall develop and promote a model State program for the training and
certification of solid waste incineration unit operators and
high-capacity fossil fuel fired plant operators. The Administrator may
authorize any State to implement a model program for the training of
solid waste incineration unit operators and high-capacity fossil fuel
fired plant operators, if the State has adopted a program which is at
least as effective as the model program developed by the Administrator.
Beginning on the date 36 months after the date on which performance
standards and guidelines are promulgated under subsection (a) of this
section and section 7411 of this title for any category of solid waste
incineration units it shall be unlawful to operate any unit in the
category unless each person with control over processes affecting
emissions from such unit has satisfactorily completed a training program
meeting the requirements established by the Administrator under this
subsection.
(e) Permits
Beginning (1) 36 months after the promulgation of a performance
standard under subsection (a) of this section and section 7411 of this
title applicable to a category of solid waste incineration units, or (2)
the effective date of a permit program under subchapter V of this
chapter in the State in which the unit is located, whichever is later,
each unit in the category shall operate pursuant to a permit issued
under this subsection and subchapter V of this chapter. Permits
required by this subsection may be renewed according to the provisions
of subchapter V of this chapter. Notwithstanding any other provision of
this chapter, each permit for a solid waste incineration unit combusting
municipal waste issued under this chapter shall be issued for a period
of up to 12 years and shall be reviewed every 5 years after date of
issuance or reissuance. Each permit shall continue in effect after the
date of issuance until the date of termination, unless the Administrator
or State determines that the unit is not in compliance with all
standards and conditions contained in the permit. Such determination
shall be made at regular intervals during the term of the permit, such
intervals not to exceed 5 years, and only after public comment and
public hearing. No permit for a solid waste incineration unit may be
issued under this chapter by an agency, instrumentality or person that
is also responsible, in whole or part, for the design and construction
or operation of the unit. Notwithstanding any other provision of this
subsection, the Administrator or the State shall require the owner or
operator of any unit to comply with emissions limitations or implement
any other measures, if the Administrator or the State determines that
emissions in the absence of such limitations or measures may reasonably
be anticipated to endanger public health or the environment. The
Administrator's determination under the preceding sentence is a
discretionary decision.
(f) Effective date and enforcement
(1) New units
Performance standards and other requirements promulgated pursuant to
this section and section 7411 of this title and applicable to new solid
waste incineration units shall be effective as of the date 6 months
after the date of promulgation.
(2) Existing units
Performance standards and other requirements promulgated pursuant to
this section and section 7411 of this title and applicable to existing
solid waste incineration units shall be effective as expeditiously as
practicable after approval of a State plan under subsection (b)(2) of
this section (or promulgation of a plan by the Administrator under
subsection (b)(3) of this section) but in no event later than 3 years
after the State plan is approved or 5 years after the date such
standards or requirements are promulgated, whichever is earlier.
(3) Prohibition
After the effective date of any performance standard, emission
limitation or other requirement promulgated pursuant to this section and
section 7411 of this title, it shall be unlawful for any owner or
operator of any solid waste incineration unit to which such standard,
limitation or requirement applies to operate such unit in violation of
such limitation, standard or requirement or for any other person to
violate an applicable requirement of this section.
(4) Coordination with other authorities
For purposes of sections 7411(e), 7413, 7414, 7416, 7420, 7603, 7604,
7607 of this title and other provisions for the enforcement of this
chapter, each performance standard, emission limitation or other
requirement established pursuant to this section by the Administrator or
a State or local government, shall be treated in the same manner as a
standard of performance under section 7411 of this title which is an
emission limitation.
(g) Definitions
For purposes of section 306 of the Clean Air Act Amendments of 1990
and this section only --
(1) Solid waste incineration unit
The term ''solid waste incineration unit'' means a distinct operating
unit of any facility which combusts any solid waste material from
commercial or industrial establishments or the general public (including
single and multiple residences, hotels, and motels). Such term does not
include incinerators or other units required to have a permit under
section 3005 of the Solid Waste Disposal Act (42 U.S.C. 6925). The term
''solid waste incineration unit'' does not include (A) materials
recovery facilities (including primary or secondary smelters) which
combust waste for the primary purpose of recovering metals, (B)
qualifying small power production facilities, as defined in section
796(17)(C) of title 16, or qualifying cogeneration facilities, as
defined in section 796(18)(B) of title 16, which burn homogeneous waste
(such as units which burn tires or used oil, but not including
refuse-derived fuel) for the production of electric energy or in the
case of qualifying cogeneration facilities which burn homogeneous waste
for the production of electric energy and steam or forms of useful
energy (such as heat) which are used for industrial, commercial, heating
or cooling purposes, or (C) air curtain incinerators provided that such
incinerators only burn wood wastes, yard wastes and clean lumber and
that such air curtain incinerators comply with opacity limitations to be
established by the Administrator by rule.
(2) New solid waste incineration unit
The term ''new solid waste incineration unit'' means a solid waste
incineration unit the construction of which is commenced after the
Administrator proposes requirements under this section establishing
emissions standards or other requirements which would be applicable to
such unit or a modified solid waste incineration unit.
(3) Modified solid waste incineration unit
The term ''modified solid waste incineration unit'' means a solid
waste incineration unit at which modifications have occurred after the
effective date of a standard under subsection (a) of this section if (A)
the cumulative cost of the modifications, over the life of the unit,
exceed 50 per centum of the original cost of construction and
installation of the unit (not including the cost of any land purchased
in connection with such construction or installation) updated to current
costs, or (B) the modification is a physical change in or change in the
method of operation of the unit which increases the amount of any air
pollutant emitted by the unit for which standards have been established
under this section or section 7411 of this title.
(4) Existing solid waste incineration unit
The term ''existing solid waste incineration unit'' means a solid
waste unit which is not a new or modified solid waste incineration unit.
(5) Municipal waste
The term ''municipal waste'' means refuse (and refuse-derived fuel)
collected from the general public and from residential, commercial,
institutional, and industrial sources consisting of paper, wood, yard
wastes, food wastes, plastics, leather, rubber, and other combustible
materials and non-combustible materials such as metal, glass and rock,
provided that: (A) the term does not include industrial process wastes
or medical wastes that are segregated from such other wastes; and (B)
an incineration unit shall not be considered to be combusting municipal
waste for purposes of section 7411 of this title or this section if it
combusts a fuel feed stream, 30 percent or less of the weight of which
is comprised, in aggregate, of municipal waste.
(6) Other terms
The terms ''solid waste'' and ''medical waste'' shall have the
meanings established by the Administrator pursuant to the Solid Waste
Disposal Act (42 U.S.C. 6901 et seq.).
(h) Other authority
(1) State authority
Nothing in this section shall preclude or deny the right of any State
or political subdivision thereof to adopt or enforce any regulation,
requirement, limitation or standard relating to solid waste incineration
units that is more stringent than a regulation, requirement, limitation
or standard in effect under this section or under any other provision of
this chapter.
(2) Other authority under this chapter
Nothing in this section shall diminish the authority of the
Administrator or a State to establish any other requirements applicable
to solid waste incineration units under any other authority of law,
including the authority to establish for any air pollutant a national
ambient air quality standard, except that no solid waste incineration
unit subject to performance standards under this section and section
7411 of this title shall be subject to standards under section 7412(d)
of this title.
(3) Residual risk
The Administrator shall promulgate standards under section 7412(f) of
this title for a category of solid waste incineration units, if
promulgation of such standards is required under section 7412(f) of this
title. For purposes of this /3/ preceding sentence only --
(A) the performance standards under subsection (a) of this section
and section 7411 of this title applicable to a category of solid waste
incineration units shall be deemed standards under section 7412(d)(2) of
this title, and
(B) the Administrator shall consider and regulate, if required, the
pollutants listed under subsection (a)(4) of this section and no others.
(4) Acid rain
A solid waste incineration unit shall not be a utility unit as
defined in subchapter IV-A of this chapter: Provided, That, more than
80 per centum of its annual average fuel consumption measured on a Btu
basis, during a period or periods to be determined by the Administrator,
is from a fuel (including any waste burned as a fuel) other than a
fossil fuel.
(5) Requirements of parts C and D
No requirement of an applicable implementation plan under section
7475 of this title (relating to construction of facilities in regions
identified pursuant to section 7407(d)(1)(A)(ii) or (iii) of this title)
or under section 7502(c)(5) of this title (relating to permits for
construction and operation in nonattainment areas) may be used to weaken
the standards in effect under this section.
(July 14, 1955, ch. 360, title I, 129, as added Nov. 15, 1990, Pub.
L. 101-549, title III, 305(a), 104 Stat. 2577.)
Section 306 of the Clean Air Act Amendments of 1990, referred to in
subsec. (g), probably means section 306 of Pub. L. 101-549, which is
set out as a note under section 6921 of this title.
The Solid Waste Disposal Act, referred to in subsec. (g)(6), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, 2, Oct. 21, 1976, 90 Stat. 2795, which
is classified generally to chapter 82 ( 6901 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
Section 305(c) of Pub. L. 101-549 provided that: ''Prior to the
promulgation of any performance standard for solid waste incineration
units combusting municipal waste under section 111 or section 129 of the
Clean Air Act (42 U.S.C. 7411, 7429), the Administrator shall review the
availability of acid gas scrubbers as a pollution control technology for
small new units and for existing units (as defined in 54 Federal
Register 52190 (December 20, 1989)()), taking into account the
provisions of subsection (a)(2) of section 129 of the Clean Air Act.''
/1/ So in original. Probably should be ''subsection''.
/2/ So in original. Probably should be subsection ''(h)(3)''.
/3/ So in original. Probably should be ''the''.
42 USC 7430. Emission factors
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Within 6 months after November 15, 1990, and at least every 3 years
thereafter, the Administrator shall review and, if necessary, revise,
the methods (''emission factors'') used for purposes of this chapter to
estimate the quantity of emissions of carbon monoxide, volatile organic
compounds, and oxides of nitrogen from sources of such air pollutants
(including area sources and mobile sources). In addition, the
Administrator shall establish emission factors for sources for which no
such methods have previously been established by the Administrator. The
Administrator shall permit any person to demonstrate improved emissions
estimating techniques, and following approval of such techniques, the
Administrator shall authorize the use of such techniques. Any such
technique may be approved only after appropriate public participation.
Until the Administrator has completed the revision required by this
section, nothing in this section shall be construed to affect the
validity of emission factors established by the Administrator before
November 15, 1990.
(July 14, 1955, ch. 360, title I, 130, as added Nov. 15, 1990, Pub.
L. 101-549, title VIII, 804, 104 Stat. 2689.)
42 USC 7431. Land use authority
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Nothing in this chapter constitutes an infringement on the existing
authority of counties and cities to plan or control land use, and
nothing in this chapter provides or transfers authority over such land
use.
(July 14, 1955, ch. 360, title I, 131, as added Nov. 15, 1990, Pub.
L. 101-549, title VIII, 805, 104 Stat. 2689.)
42 USC Part B -- Ozone Protection
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7450 to 7459. Repealed. Pub. L. 101-549, title VI, 601, Nov.
15, 1990, 104 Stat. 2648
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7450, act July 14, 1955, ch. 360, title I, 150, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 725, set forth
Congressional declaration of purpose.
Section 7451, act July 14, 1955, ch. 360, title I, 151, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 726, set forth
Congressional findings.
Section 7452, act July 14, 1955, ch. 360, title I, 152, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 726, set forth
definitions applicable to this part.
Section 7453, act July 14, 1955, ch. 360, title I, 153, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 726, related to
studies by Environmental Protection Agency.
Section 7454, act July 14, 1955, ch. 360, title I, 154, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 728, and amended
Pub. L. 96-88, title V, 509(b), Oct. 17, 1979, 93 Stat. 695, related
to research and monitoring activities by Federal agencies.
Section 7455, act July 14, 1955, ch. 360, title I, 155, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 729, related to
reports on progress of regulation.
Section 7456, act July 14, 1955, ch. 360, title I, 156, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 729, authorized
President to enter into international agreements to foster cooperative
research.
Section 7457, act July 14, 1955, ch. 360, title I, 157, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 729, related to
promulgation of regulations.
Section 7458, act July 14, 1955, ch. 360, title I, 158, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 730, set forth
other provisions of law that would be unaffected by this part.
Section 7459, act July 14, 1955, ch. 360, title I, 159, as added
Aug. 7, 1977, Pub. L. 95-95, title I, 126, 91 Stat. 730, related to
authority of States to protect the stratosphere.
For provisions relating to stratospheric ozone protection, see
section 7671 et seq. of this title.
42 USC Part C -- Prevention of Significant Deterioration of Air Quality
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
section 460m-24.
42 USC subpart i -- clean air
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7470. Congressional declaration of purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The purposes of this part are as follows:
(1) to protect public health and welfare from any actual or potential
adverse effect which in the Administrator's judgment may reasonably be
anticipate /1/ to occur from air pollution or from exposures to
pollutants in other media, which pollutants originate as emissions to
the ambient air) /2/ , notwithstanding attainment and maintenance of all
national ambient air quality standards;
(2) to preserve, protect, and enhance the air quality in national
parks, national wilderness areas, national monuments, national
seashores, and other areas of special national or regional natural,
recreational, scenic, or historic value;
(3) to insure that economic growth will occur in a manner consistent
with the preservation of existing clean air resources;
(4) to assure that emissions from any source in any State will not
interfere with any portion of the applicable implementation plan to
prevent significant deterioration of air quality for any other State;
and
(5) to assure that any decision to permit increased air pollution in
any area to which this section applies is made only after careful
evaluation of all the consequences of such a decision and after adequate
procedural opportunities for informed public participation in the
decisionmaking process.
(July 14, 1955, ch. 360, title I, 160, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 731.)
Subpart effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
Section 127(c) of Pub. L. 95-95 required Administrator, not later
than 1 year after Aug. 7, 1977, to publish a guidance document to
assist States in carrying out their functions under part C of title I of
the Clean Air Act (this part) with respect to pollutants for which
national ambient air quality standards are promulgated.
Section 127(d) of Pub. L. 95-95 directed Administrator, not later
than 2 years after Aug. 7, 1977, to complete a study and report to
Congress on progress made in carrying out part C of title I of the Clean
Air Act (this part) and the problems associated in carrying out such
section.
/1/ So in original. Probably should be ''anticipated''.
/2/ So in original. Section was enacted without an opening
parenthesis.
42 USC 7471. Plan requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
In accordance with the policy of section 7401(b)(1) of this title,
each applicable implementation plan shall contain emission limitations
and such other measures as may be necessary, as determined under
regulations promulgated under this part, to prevent significant
deterioration of air quality in each region (or portion thereof)
designated pursuant to section 7407 of this title as attainment or
unclassifiable.
(July 14, 1955, ch. 360, title I, 161, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 731, and amended Nov. 15, 1990,
Pub. L. 101-549, title I, 110(1), 104 Stat. 2470.)
1990 -- Pub. L. 101-549 substituted ''designated pursuant to section
7407 of this title as attainment or unclassifiable'' for ''identified
pursuant to section 7407(d)(1)(D) or (E) of this title''.
42 USC 7472. Initial classifications
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Areas designated as class I
Upon the enactment of this part, all --
(1) international parks,
(2) national wilderness areas which exceed 5,000 acres in size,
(3) national memorial parks which exceed 5,000 acres in size, and
(4) national parks which exceed six thousand acres in size,
and which are in existence on August 7, 1977, shall be class I areas
and may not be redesignated. All areas which were redesignated as class
I under regulations promulgated before August 7, 1977, shall be class I
areas which may be redesignated as provided in this part. The extent of
the areas designated as Class I under this section shall conform to any
changes in the boundaries of such areas which have occurred subsequent
to August 7, 1977, or which may occur subsequent to November 15, 1990.
(b) Areas designated as class II
All areas in such State designated pursuant to section 7407(d) of
this title as attainment or unclassifiable which are not established as
class I under subsection (a) of this section shall be class II areas
unless redesignated under section 7474 of this title.
(July 14, 1955, ch. 360, title I, 162, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 731, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(40), 91 Stat. 1401; Nov. 15, 1990, Pub. L.
101-549, title I, 108(m), 110(2), 104 Stat. 2469, 2470.)
1990 -- Subsec. (a). Pub. L. 101-549, 108(m), inserted at end ''The
extent of the areas designated as Class I under this section shall
conform to any changes in the boundaries of such areas which have
occurred subsequent to August 7, 1977, or which may occur subsequent to
November 15, 1990.''
Subsec. (b). Pub. L. 101-549, 110(2), substituted ''designated
pursuant to section 7407(d) of this title as attainment or
unclassifiable'' for ''identified pursuant to section 7407(d)(1)(D) or
(E) of this title''.
1977 -- Subsec. (a)(4). Pub. L. 95-190 inserted a comma after
''size''.
42 USC 7473. Increments and ceilings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Sulfur oxide and particulate matter; requirement that maximum
allowable increases and maximum allowable concentrations not be exceeded
In the case of sulfur oxide and particulate matter, each applicable
implementation plan shall contain measures assuring that maximum
allowable increases over baseline concentrations of, and maximum
allowable concentrations of, such pollutant shall not be exceeded. In
the case of any maximum allowable increase (except an allowable increase
specified under section 7475(d)(2)(C)(iv) of this title) for a pollutant
based on concentrations permitted under national ambient air quality
standards for any period other than an annual period, such regulations
shall permit such maximum allowable increase to be exceeded during one
such period per year.
(b) Maximum allowable increases in concentrations over baseline
concentrations
(1) For any class I area, the maximum allowable increase in
concentrations of sulfur dioxide and particulate matter over the
baseline concentration of such pollutants shall not exceed the following
amounts:
Pollutant Maximum allowable increase (in
l micrograms per cubic meter)
Particulate matter:
Annual geometric mean 5 Twenty-four-hour maximum 10
Sulfur dioxide:
Annual arithmetic mean 2 Twenty-four-hour maximum 5 Three-hour
maximum 25
(2) For any class II area, the maximum allowable increase in
concentrations of sulfur dioxide and particulate matter over the
baseline concentration of such pollutants shall not exceed the following
amounts:
Pollutant Maximum allowable increase (in
l micrograms per cubic meter)
Particulate matter:
Annual geometric mean 19 Twenty-four-hour maximum 37
Sulfur dioxide:
Annual arithmetic mean 20 Twenty-four-hour maximum 91 Three-hour
maximum 512
(3) For any class III area, the maximum allowable increase in
concentrations of sulfur dioxide and particulate matter over the
baseline concentration of such pollutants shall not exceed the following
amounts:
Pollutant Maximum allowable increase (in
l micrograms per cubic meter)
Particulate matter:
Annual geometric mean 37 Twenty-four-hour maximum 75
Sulfur dioxide:
Annual arithmetic mean 40 Twenty-four-hour maximum 182 Three-hour
maximum 700
(4) The maximum allowable concentration of any air pollutant in any
area to which this part applies shall not exceed a concentration for
such pollutant for each period of exposure equal to --
(A) the concentration permitted under the national secondary ambient
air quality standard, or
(B) the concentration permitted under the national primary ambient
air quality standard,
whichever concentration is lowest for such pollutant for such period
of exposure.
(c) Orders or rules for determining compliance with maximum allowable
increases in ambient concentrations of air pollutants
(1) In the case of any State which has a plan approved by the
Administrator for purposes of carrying out this part, the Governor of
such State may, after notice and opportunity for public hearing, issue
orders or promulgate rules providing that for purposes of determining
compliance with the maximum allowable increases in ambient
concentrations of an air pollutant, the following concentrations of such
pollutant shall not be taken into account:
(A) concentrations of such pollutant attributable to the increase in
emissions from stationary sources which have converted from the use of
petroleum products, or natural gas, or both, by reason of an order which
is in effect under the provisions of sections 792(a) and (b) of title 15
(or any subsequent legislation which supersedes such provisions) over
the emissions from such sources before the effective date of such order.
/1/
(B) the concentrations of such pollutant attributable to the increase
in emissions from stationary sources which have converted from using
natural gas by reason of a natural gas curtailment pursuant to a natural
gas curtailment plan in effect pursuant to the Federal Power Act (16
U.S.C. 791a et seq.) over the emissions from such sources before the
effective date of such plan,
(C) concentrations of particulate matter attributable to the increase
in emissions from construction or other temporary emission-related
activities, and
(D) the increase in concentrations attributable to new sources
outside the United States over the concentrations attributable to
existing sources which are included in the baseline concentration
determined in accordance with section 7479(4) of this title.
(2) No action taken with respect to a source under paragraph (1)(A)
or (1)(B) shall apply more than five years after the effective date of
the order referred to in paragraph (1)(A) or the plan referred to in
paragraph (1)(B), whichever is applicable. If both such order and plan
are applicable, no such action shall apply more than five years after
the later of such effective dates.
(3) No action under this subsection shall take effect unless the
Governor submits the order or rule providing for such exclusion to the
Administrator and the Administrator determines that such order or rule
is in compliance with the provisions of this subsection.
(July 14, 1955, ch. 360, title I, 163, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 732, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(41), 91 Stat. 1401.)
The Federal Power Act, referred to in subsec. (c)(1)(B), is act June
10, 1920, ch. 285, 41 Stat. 1063, as amended, which is classified
generally to chapter 12 ( 791a et seq.) of Title 16, Conservation. For
complete classification of this Act to the Code, see section 791a of
Title 16 and Tables.
1977 -- Subsec. (a). Pub. L. 95-190 inserted ''section'' before
''7475''.
/1/ So in original. The period probably should be a comma.
42 USC 7474. Area redesignation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of States to redesignate areas
Except as otherwise provided under subsection (c) of this section, a
State may redesignate such areas as it deems appropriate as class I
areas. The following areas may be redesignated only as class I or II:
(1) an area which exceeds ten thousand acres in size and is a
national monument, a national primitive area, a national preserve, a
national recreation area, a national wild and scenic river, a national
wildlife refuge, a national lakeshore or seashore, and
(2) a national park or national wilderness area established after
August 7, 1977, which exceeds ten thousand acres in size.
The extent of the areas referred to in paragraph /1/ (1) and (2)
shall conform to any changes in the boundaries of such areas which have
occurred subsequent to August 7, 1977, or which may occur subsequent to
November 15, 1990. Any area (other than an area referred to in
paragraph (1) or (2) or an area established as class I under the first
sentence of section 7472(a) of this title) may be redesignated by the
State as class III if --
(A) such redesignation has been specifically approved by the Governor
of the State, after consultation with the appropriate Committees of the
legislature if it is in session or with the leadership of the
legislature if it is not in session (unless State law provides that such
redesignation must be specifically approved by State legislation) and if
general purpose units of local government representing a majority of the
residents of the area so redesignated enact legislation (including for
such units of local government resolutions where appropriate) concurring
in the State's redesignation;
(B) such redesignation will not cause, or contribute to,
concentrations of any air pollutant which exceed any maximum allowable
increase or maximum allowable concentration permitted under the
classification of any other area; and
(C) such redesignation otherwise meets the requirements of this part.
Subparagraph (A) of this paragraph shall not apply to area
redesignations by Indian tribes.
(b) Notice and hearing; notice to Federal land manager; written
comments and recommendations; regulations; disapproval of
redesignation
(1)(A) Prior to redesignation of any area under this part, notice
shall be afforded and public hearings shall be conducted in areas
proposed to be redesignated and in areas which may be affected by the
proposed redesignation. Prior to any such public hearing a satisfactory
description and analysis of the health, environmental, economic, social,
and energy effects of the proposed redesignation shall be prepared and
made available for public inspection and prior to any such
redesignation, the description and analysis of such effects shall be
reviewed and examined by the redesignating authorities.
(B) Prior to the issuance of notice under subparagraph (A) respecting
the redesignation of any area under this subsection, if such area
includes any Federal lands, the State shall provide written notice to
the appropriate Federal land manager and afford adequate opportunity
(but not in excess of 60 days) to confer with the State respecting the
intended notice of redesignation and to submit written comments and
recommendations with respect to such intended notice of redesignation.
In redesignating any area under this section with respect to which any
Federal land manager has submitted written comments and recommendations,
the State shall publish a list of any inconsistency between such
redesignation and such recommendations and an explanation of such
inconsistency (together with the reasons for making such redesignation
against the recommendation of the Federal land manager).
(C) The Administrator shall promulgate regulations not later than six
months after August 7, 1977, to assure, insofar as practicable, that
prior to any public hearing on redesignation of any area, there shall be
available for public inspection any specific plans for any new or
modified major emitting facility which may be permitted to be
constructed and operated only if the area in question is designated or
redesignated as class III.
(2) The Administrator may disapprove the redesignation of any area
only if he finds, after notice and opportunity for public hearing, that
such redesignation does not meet the procedural requirements of this
section or is inconsistent with the requirements of section 7472(a) of
this title or of subsection (a) of this section. If any such
disapproval occurs, the classification of the area shall be that which
was in effect prior to the redesignation which was disapproved.
(c) Indian reservations
Lands within the exterior boundaries of reservations of federally
recognized Indian tribes may be redesignated only by the appropriate
Indian governing body. Such Indian governing body shall be subject in
all respect to the provisions of subsection (e) of this section.
(d) Review of national monuments, primitive areas, and national
preserves
The Federal Land Manager shall review all national monuments,
primitive areas, and national preserves, and shall recommend any
appropriate areas for redesignation as class I where air quality related
values are important attributes of the area. The Federal Land Manager
shall report such recommendations, within /2/ supporting analysis, to
the Congress and the affected States within one year after August 7,
1977. The Federal Land Manager shall consult with the appropriate
States before making such recommendations.
(e) Resolution of disputes between State and Indian tribes
If any State affected by the redesignation of an area by an Indian
tribe or any Indian tribe affected by the redesignation of an area by a
State disagrees with such redesignation of any area, or if a permit is
proposed to be issued for any new major emitting facility proposed for
construction in any State which the Governor of an affected State or
governing body of an affected Indian tribe determines will cause or
contribute to a cumulative change in air quality in excess of that
allowed in this part within the affected State or tribal reservation,
the Governor or Indian ruling body may request the Administrator to
enter into negotiations with the parties involved to resolve such
dispute. If requested by any State or Indian tribe involved, the
Administrator shall make a recommendation to resolve the dispute and
protect the air quality related values of the lands involved. If the
parties involved do not reach agreement, the Administrator shall resolve
the dispute and his determination, or the results of agreements reached
through other means, shall become part of the applicable plan and shall
be enforceable as part of such plan. In resolving such disputes
relating to area redesignation, the Administrator shall consider the
extent to which the lands involved are of sufficient size to allow
effective air quality management or have air quality related values of
such an area.
(July 14, 1955, ch. 360, title I, 164, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 733, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(42), (43), 91 Stat. 1402; Nov. 15, 1990, Pub. L.
101-549, title I, 108(n), 104 Stat. 2469.)
1990 -- Subsec. (a). Pub. L. 101-549, which directed the insertion
of ''The extent of the areas referred to in paragraph (1) and (2) shall
conform to any changes in the boundaries of such areas which have
occurred subsequent to August 7, 1977, or which may occur subsequent to
November 15, 1990.'' before ''Any area (other than an area referred to
in paragraph (1) or (2))'', was executed by making the insertion before
''Any area (other than an area referred to in paragraph (1) or (2)'', to
reflect the probable intent of Congress.
1977 -- Subsec. (b)(2). Pub. L. 95-190, 14(a)(42), inserted ''or is
inconsistent with the requirements of section 7472(a) of this title or
of subsection (a) of this section'' after ''this section''.
Subsec. (e). Pub. L. 95-190, 14(a)(43), inserted ''an'' after ''If
any State affected by the redesignation of''.
/1/ So in original. Probably should be ''paragraphs''.
/2/ So in original. Probably should be ''with''.
42 USC 7475. Preconstruction requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Major emitting facilities on which construction is commenced
No major emitting facility on which construction is commenced after
August 7, 1977, may be constructed in any area to which this part
applies unless --
(1) a permit has been issued for such proposed facility in accordance
with this part setting forth emission limitations for such facility
which conform to the requirements of this part;
(2) the proposed permit has been subject to a review in accordance
with this section, the required analysis has been conducted in
accordance with regulations promulgated by the Administrator, and a
public hearing has been held with opportunity for interested persons
including representatives of the Administrator to appear and submit
written or oral presentations on the air quality impact of such source,
alternatives thereto, control technology requirements, and other
appropriate considerations;
(3) the owner or operator of such facility demonstrates, as required
pursuant to section 7410(j) of this title, that emissions from
construction or operation of such facility will not cause, or contribute
to, air pollution in excess of any (A) maximum allowable increase or
maximum allowable concentration for any pollutant in any area to which
this part applies more than one time per year, (B) national ambient air
quality standard in any air quality control region, or (C) any other
applicable emission standard or standard of performance under this
chapter;
(4) the proposed facility is subject to the best available control
technology for each pollutant subject to regulation under this chapter
emitted from, or which results from, such facility;
(5) the provisions of subsection (d) of this section with respect to
protection of class I areas have been complied with for such facility;
(6) there has been an analysis of any air quality impacts projected
for the area as a result of growth associated with such facility;
(7) the person who owns or operates, or proposes to own or operate, a
major emitting facility for which a permit is required under this part
agrees to conduct such monitoring as may be necessary to determine the
effect which emissions from any such facility may have, or is having, on
air quality in any area which may be affected by emissions from such
source; and
(8) in the case of a source which proposes to construct in a class
III area, emissions from which would cause or contribute to exceeding
the maximum allowable increments applicable in a class II area and where
no standard under section 7411 of this title has been promulgated
subsequent to August 7, 1977, for such source category, the
Administrator has approved the determination of best available
technology as set forth in the permit.
(b) Exception
The demonstration pertaining to maximum allowable increases required
under subsection (a)(3) of this section shall not apply to maximum
allowable increases for class II areas in the case of an expansion or
modification of a major emitting facility which is in existence on
August 7, 1977, whose allowable emissions of air pollutants, after
compliance with subsection (a)(4) of this section, will be less than
fifty tons per year and for which the owner or operator of such facility
demonstrates that emissions of particulate matter and sulfur oxides will
not cause or contribute to ambient air quality levels in excess of the
national secondary ambient air quality standard for either of such
pollutants.
(c) Permit applications
Any completed permit application under section 7410 of this title for
a major emitting facility in any area to which this part applies shall
be granted or denied not later than one year after the date of filing of
such completed application.
(d) Action taken on permit applications; notice; adverse impact on
air quality related values; variance; emission limitations
(1) Each State shall transmit to the Administrator a copy of each
permit application relating to a major emitting facility received by
such State and provide notice to the Administrator of every action
related to the consideration of such permit.
(2)(A) The Administrator shall provide notice of the permit
application to the Federal Land Manager and the Federal official charged
with direct responsibility for management of any lands within a class I
area which may be affected by emissions from the proposed facility.
(B) The Federal Land Manager and the Federal official charged with
direct responsibility for management of such lands shall have an
affirmative responsibility to protect the air quality related values
(including visibility) of any such lands within a class I area and to
consider, in consultation with the Administrator, whether a proposed
major emitting facility will have an adverse impact on such values.
(C)(i) In any case where the Federal official charged with direct
responsibility for management of any lands within a class I area or the
Federal Land Manager of such lands, or the Administrator, or the
Governor of an adjacent State containing such a class I area files a
notice alleging that emissions from a proposed major emitting facility
may cause or contribute to a change in the air quality in such area and
identifying the potential adverse impact of such change, a permit shall
not be issued unless the owner or operator of such facility demonstrates
that emissions of particulate matter and sulfur dioxide will not cause
or contribute to concentrations which exceed the maximum allowable
increases for a class I area.
(ii) In any case where the Federal Land Manager demonstrates to the
satisfaction of the State that the emissions from such facility will
have an adverse impact on the air quality-related values (including
visibility) of such lands, notwithstanding the fact that the change in
air quality resulting from emissions from such facility will not cause
or contribute to concentrations which exceed the maximum allowable
increases for a class I area, a permit shall not be issued.
(iii) In any case where the owner or operator of such facility
demonstrates to the satisfaction of the Federal Land Manager, and the
Federal Land Manager so certifies, that the emissions from such facility
will have no adverse impact on the air quality-related values of such
lands (including visibility), notwithstanding the fact that the change
in air quality resulting from emissions from such facility will cause or
contribute to concentrations which exceed the maximum allowable
increases for class I areas, the State may issue a permit.
(iv) In the case of a permit issued pursuant to clause (iii), such
facility shall comply with such emission limitations under such permit
as may be necessary to assure that emissions of sulfur oxides and
particulates from such facility will not cause or contribute to
concentrations of such pollutant which exceed the following maximum
allowable increases over the baseline concentration for such pollutants:
l Maximum allowable increase (in
l micrograms per cubic meter)
Particulate matter:
Annual geometric mean 19 Twenty-four-hour maximum 37
Sulfur dioxide:
Annual arithmetic mean 20 Twenty-four-hour maximum 91 Three-hour
maximum 325
(D)(i) In any case where the owner or operator of a proposed major
emitting facility who has been denied a certification under subparagraph
(C)(iii) demonstrates to the satisfaction of the Governor, after notice
and public hearing, and the Governor finds, that the facility cannot be
constructed by reason of any maximum allowable increase for sulfur
dioxide for periods of twenty-four hours or less applicable to any class
I area and, in the case of Federal mandatory class I areas, that a
variance under this clause will not adversely affect the air quality
related values of the area (including visibility), the Governor, after
consideration of the Federal Land Manager's recommendation (if any) and
subject to his concurrence, may grant a variance from such maximum
allowable increase. If such variance is granted, a permit may be issued
to such source pursuant to the requirements of this subparagraph.
(ii) In any case in which the Governor recommends a variance under
this subparagraph in which the Federal Land Manager does not concur, the
recommendations of the Governor and the Federal Land Manager shall be
transmitted to the President. The President may approve the Governor's
recommendation if he finds that such variance is in the national
interest. No Presidential finding shall be reviewable in any court.
The variance shall take effect if the President approves the Governor's
recommendations. The President shall approve or disapprove such
recommendation within ninety days after his receipt of the
recommendations of the Governor and the Federal Land Manager.
(iii) In the case of a permit issued pursuant to this subparagraph,
such facility shall comply with such emission limitations under such
permit as may be necessary to assure that emissions of sulfur oxides
from such facility will not (during any day on which the otherwise
applicable maximum allowable increases are exceeded) cause or contribute
to concentrations which exceed the following maximum allowable increases
for such areas over the baseline concentration for such pollutant and to
assure that such emissions will not cause or contribute to
concentrations which exceed the otherwise applicable maximum allowable
increases for periods of exposure of 24 hours or less on more than 18
days during any annual period:
(iv) For purposes of clause (iii), the term ''high terrain area''
means with respect to any facility, any area having an elevation of 900
feet or more above the base of the stack of such facility, and the term
''low terrain area'' means any area other than a high terrain area.
(e) Analysis; continuous air quality monitoring data; regulations;
model adjustments
(1) The review provided for in subsection (a) of this section shall
be preceded by an analysis in accordance with regulations of the
Administrator, promulgated under this subsection, which may be conducted
by the State (or any general purpose unit of local government) or by the
major emitting facility applying for such permit, of the ambient air
quality at the proposed site and in areas which may be affected by
emissions from such facility for each pollutant subject to regulation
under this chapter which will be emitted from such facility.
(2) Effective one year after August 7, 1977, the analysis required by
this subsection shall include continuous air quality monitoring data
gathered for purposes of determining whether emissions from such
facility will exceed the maximum allowable increases or the maximum
allowable concentration permitted under this part. Such data shall be
gathered over a period of one calendar year preceding the date of
application for a permit under this part unless the State, in accordance
with regulations promulgated by the Administrator, determines that a
complete and adequate analysis for such purposes may be accomplished in
a shorter period. The results of such analysis shall be available at
the time of the public hearing on the application for such permit.
(3) The Administrator shall within six months after August 7, 1977,
promulgate regulations respecting the analysis required under this
subsection which regulations --
(A) shall not require the use of any automatic or uniform buffer zone
or zones,
(B) shall require an analysis of the ambient air quality, climate and
meteorology, terrain, soils and vegetation, and visibility at the site
of the proposed major emitting facility and in the area potentially
affected by the emissions from such facility for each pollutant
regulated under this chapter which will be emitted from, or which
results from the construction or operation of, such facility, the size
and nature of the proposed facility, the degree of continuous emission
reduction which could be achieved by such facility, and such other
factors as may be relevant in determining the effect of emissions from a
proposed facility on any air quality control region,
(C) shall require the results of such analysis shall be available at
the time of the public hearing on the application for such permit, and
(D) shall specify with reasonable particularity each air quality
model or models to be used under specified sets of conditions for
purposes of this part.
Any model or models designated under such regulations may be adjusted
upon a determination, after notice and opportunity for public hearing,
by the Administrator that such adjustment is necessary to take into
account unique terrain or meteorological characteristics of an area
potentially affected by emissions from a source applying for a permit
required under this part.
(July 14, 1955, ch. 360, title I, 165, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 735, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(44)-(51), 91 Stat. 1402.)
1977 -- Subsec. (a)(1). Pub. L. 95-190, 14(a)(44), substituted
''part;'' for ''part:''.
Subsec. (a)(3). Pub. L. 95-190, 14(a)(45), inserted provision making
applicable requirement of section 7410(j) of this title.
Subsec. (b). Pub. L. 95-190, 14(a)(46), inserted ''cause or'' before
''contribute'' and struck out ''actual'' before ''allowable emissions''.
Subsec. (d)(2)(C). Pub. L. 95-190, 14(a)(47)-(49), in cl. (ii)
substituted ''contribute'' for ''contrbute'', in cl. (iii) substituted
''quality-related'' for ''quality related'' and ''concentrations which''
for ''concentrations, which'', and in cl. (iv) substituted ''such
facility'' for ''such sources'' and ''will not cause or contribute to
concentrations of such pollutant which exceed'' for ''together with all
other sources, will not exceed''.
Subsec. (d)(2)(D). Pub. L. 95-190, 14(a)(50), (51), in cl. (iii)
substituted provisions relating to determinations of amounts of
emissions of sulfur oxides from facilities, for provisions relating to
determinations of amounts of emissions of sulfur oxides from sources
operating under permits issued pursuant to this subpar., together with
all other sources, and added cl. (iv).
42 USC 7476. Other pollutants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Hydrocarbons, carbon monoxide, petrochemical oxidants, and
nitrogen oxides
In the case of the pollutants hydrocarbons, carbon monoxide,
photochemical oxidants, and nitrogen oxides, the Administrator shall
conduct a study and not later than two years after August 7, 1977,
promulgate regulations to prevent the significant deterioration of air
quality which would result from the emissions of such pollutants. In
the case of pollutants for which national ambient air quality standards
are promulgated after August 7, 1977, he shall promulgate such
regulations not more than 2 years after the date of promulgation of such
standards.
(b) Effective date of regulations
Regulations referred to in subsection (a) of this section shall
become effective one year after the date of promulgation. Within 21
months after such date of promulgation such plan revision shall be
submitted to the Administrator who shall approve or disapprove the plan
within 25 months after such date or promulgation in the same manner as
required under section 7410 of this title.
(c) Contents of regulations
Such regulations shall provide specific numerical measures against
which permit applications may be evaluated, a framework for stimulating
improved control technology, protection of air quality values, and
fulfill the goals and purposes set forth in section 7401 and section
7470 of this title.
(d) Specific measures to fulfill goals and purposes
The regulations of the Administrator under subsection (a) of this
section shall provide specific measures at least as effective as the
increments established in section 7473 of this title to fulfill such
goals and purposes, and may contain air quality increments, emission
density requirements, or other measures.
(e) Area classification plan not required
With respect to any air pollutant for which a national ambient air
quality standard is established other than sulfur oxides or particulate
matter, an area classification plan shall not be required under this
section if the implementation plan adopted by the State and submitted
for the Administrator's approval or promulgated by the Administrator
under section 7410(c) of this title contains other provisions which when
considered as a whole, the Administrator finds will carry out the
purposes in section 7470 of this title at least as effectively as an
area classification plan for such pollutant. Such other provisions
referred to in the preceding sentence need not require the establishment
of maximum allowable increases with respect to such pollutant for any
area to which this section applies.
(f) PM-10 increments
The Administrator is authorized to substitute, for the maximum
allowable increases in particulate matter specified in section 7473(b)
of this title and section 7475(d)(2)(C)(iv) of this title, maximum
allowable increases in particulate matter with an aerodynamic diameter
smaller than or equal to 10 micrometers. Such substituted maximum
allowable increases shall be of equal stringency in effect as those
specified in the provisions for which they are substituted. Until the
Administrator promulgates regulations under the authority of this
subsection, the current maximum allowable increases in concentrations of
particulate matter shall remain in effect.
(July 14, 1955, ch. 360, title I, 166, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 739, and amended Nov. 15, 1990,
Pub. L. 101-549, title I, 105(b), 104 Stat. 2462.)
1990 -- Subsec. (f). Pub. L. 101-549 added subsec. (f).
42 USC 7477. Enforcement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator shall, and a State may, take such measures,
including issuance of an order, or seeking injunctive relief, as
necessary to prevent the construction or modification of a major
emitting facility which does not conform to the requirements of this
part, or which is proposed to be constructed in any area designated
pursuant to section 7407(d) of this title as attainment or
unclassifiable and which is not subject to an implementation plan which
meets the requirements of this part.
(July 14, 1955, ch. 360, title I, 167, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 740, and amended Nov. 15, 1990,
Pub. L. 101-549, title I, 110(3), title VII, 708, 104 Stat. 2470,
2684.)
1990 -- Pub. L. 101-549, 708, substituted ''construction or
modification of a major emitting facility'' for ''construction of a
major emitting facility''.
Pub. L. 101-549, 110(3), substituted ''designated pursuant to
section 7407(d) as attainment or unclassifiable'' for ''included in the
list promulgated pursuant to paragraph (1)(D) or (E) of subsection (d)
of section 7407 of this title''.
42 USC 7478. Period before plan approval
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Existing regulations to remain in effect
Until such time as an applicable implementation plan is in effect for
any area, which plan meets the requirements of this part to prevent
significant deterioration of air quality with respect to any air
pollutant, applicable regulations under this chapter prior to August 7,
1977, shall remain in effect to prevent significant deterioration of air
quality in any such area for any such pollutant except as otherwise
provided in subsection (b) of this section.
(b) Regulations deemed amended; construction commenced after June 1,
1975
If any regulation in effect prior to August 7, 1977, to prevent
significant deterioration of air quality would be inconsistent with the
requirements of section 7472(a), section 7473(b) or section 7474(a) of
this title, then such regulations shall be deemed amended so as to
conform with such requirements. In the case of a facility on which
construction was commenced (in accordance with the definition of
''commenced'' in section 7479(2) of this title) after June 1, 1975, and
prior to August 7, 1977, the review and permitting of such facility
shall be in accordance with the regulations for the prevention of
significant deterioration in effect prior to August 7, 1977.
(July 14, 1955, ch. 360, title I, 168, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 740, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(52), 91 Stat. 1402.)
1977 -- Subsec. (b). Pub. L. 95-190 substituted ''(in accordance
with the definition of 'commenced' in section 7479(2) of this title)''
for ''in accordance with this definition''.
42 USC 7479. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this part --
(1) The term ''major emitting facility'' means any of the following
stationary sources of air pollutants which emit, or have the potential
to emit, one hundred tons per year or more of any air pollutant from the
following types of stationary sources: fossil-fuel fired steam electric
plants of more than two hundred and fifty million British thermal units
per hour heat input, coal cleaning plants (thermal dryers), kraft pulp
mills, Portland Cement plants, primary zinc smelters, iron and steel
mill plants, primary aluminum ore reduction plants, primary copper
smelters, municipal incinerators capable of charging more than fifty
tons of refuse per day, hydrofluoric, sulfuric, and nitric acid plants,
petroleum refineries, lime plants, phosphate rock processing plants,
coke oven batteries, sulfur recovery plants, carbon black plants
(furnace process), primary lead smelters, fuel conversion plants,
sintering plants, secondary metal production facilities, chemical
process plants, fossil-fuel boilers of more than two hundred and fifty
million British thermal units per hour heat input, petroleum storage and
transfer facilities with a capacity exceeding three hundred thousand
barrels, taconite ore processing facilities, glass fiber processing
plants, charcoal production facilities. Such term also includes any
other source with the potential to emit two hundred and fifty tons per
year or more of any air pollutant. This term shall not include new or
modified facilities which are nonprofit health or education institutions
which have been exempted by the State.
(2)(A) The term ''commenced'' as applied to construction of a major
emitting facility means that the owner or operator has obtained all
necessary preconstruction approvals or permits required by Federal,
State, or local air pollution emissions and air quality laws or
regulations and either has (i) begun, or caused to begin, a continuous
program of physical on-site construction of the facility or (ii) entered
into binding agreements or contractual obligations, which cannot be
canceled or modified without substantial loss to the owner or operator,
to undertake a program of construction of the facility to be completed
within a reasonable time.
(B) The term ''necessary preconstruction approvals or permits'' means
those permits or approvals, required by the permitting authority as a
precondition to undertaking any activity under clauses (i) or (ii) of
subparagraph (A) of this paragraph.
(C) The term ''construction'' when used in connection with any source
or facility, includes the modification (as defined in section 7411(a) of
this title) of any source or facility.
(3) The term ''best available control technology'' means an emission
limitation based on the maximum degree of reduction of each pollutant
subject to regulation under this chapter emitted from or which results
from any major emitting facility, which the permitting authority, on a
case-by-case basis, taking into account energy, environmental, and
economic impacts and other costs, determines is achievable for such
facility through application of production processes and available
methods, systems, and techniques, including fuel cleaning, clean fuels,
or treatment or innovative fuel combustion techniques for control of
each such pollutant. In no event shall application of ''best available
control technology'' result in emissions of any pollutants which will
exceed the emissions allowed by any applicable standard established
pursuant to section 7411 or 7412 of this title. Emissions from any
source utilizing clean fuels, or any other means, to comply with this
paragraph shall not be allowed to increase above levels that would have
been required under this paragraph as it existed prior to November 15,
1990.
(4) The term ''baseline concentration'' means, with respect to a
pollutant, the ambient concentration levels which exist at the time of
the first application for a permit in an area subject to this part,
based on air quality data available in the Environmental Protection
Agency or a State air pollution control agency and on such monitoring
data as the permit applicant is required to submit. Such ambient
concentration levels shall take into account all projected emissions in,
or which may affect, such area from any major emitting facility on which
construction commenced prior to January 6, 1975, but which has not begun
operation by the date of the baseline air quality concentration
determination. Emissions of sulfur oxides and particulate matter from
any major emitting facility on which construction commenced after
January 6, 1975, shall not be included in the baseline and shall be
counted against the maximum allowable increases in pollutant
concentrations established under this part.
(July 14, 1955, ch. 360, title I, 169, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 127(a), 91 Stat. 740, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(54), 91 Stat. 1402; Nov. 15, 1990, Pub. L.
101-549, title III, 305(b), title IV, 403(d), 104 Stat. 2583, 2631.)
1990 -- Par. (1). Pub. L. 101-549, 305(b), struck out ''two hundred
and'' after ''municipal incinerators capable of charging more than''.
Par. (3). Pub. L. 101-549, 403(d), directed the insertion of '',
clean fuels,'' after ''including fuel cleaning,'', which was executed by
making the insertion after ''including fuel cleaning'' to reflect the
probable intent of Congress, and inserted at end ''Emissions from any
source utilizing clean fuels, or any other means, to comply with this
paragraph shall not be allowed to increase above levels that would have
been required under this paragraph as it existed prior to November 15,
1990.''
1977 -- Par. (2)(C). Pub. L. 95-190 added subpar. (C).
Section 127(b) of Pub. L. 95-95 directed Administrator, within 1
year after Aug. 7, 1977, to report to Congress on consequences of that
portion of definition of ''major emitting facility'' under this subpart
which applies to facilities with potential to emit 250 tons per year or
more.
42 USC subpart ii -- visibility protection
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As originally enacted, subpart II of part C of subchapter I of this
chapter was added following section 7478 of this title. Pub. L.
95-190, 14(a)(53), Nov. 16, 1977, 91 Stat. 1402, struck out subpart
II and inserted such subpart following section 7479 of this title.
42 USC 7491. Visibility protection for Federal class I areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Impairment of visibility; list of areas; study and report
(1) Congress hereby declares as a national goal the prevention of any
future, and the remedying of any existing, impairment of visibility in
mandatory class I Federal areas which impairment results from manmade
air pollution.
(2) Not later than six months after August 7, 1977, the Secretary of
the Interior in consultation with other Federal land managers shall
review all mandatory class I Federal areas and identify those where
visibility is an important value of the area. From time to time the
Secretary of the Interior may revise such identifications. Not later
than one year after August 7, 1977, the Administrator shall, after
consultation with the Secretary of the Interior, promulgate a list of
mandatory class I Federal areas in which he determines visibility is an
important value.
(3) Not later than eighteen months after August 7, 1977, the
Administrator shall complete a study and report to Congress on available
methods for implementing the national goal set forth in paragraph (1).
Such report shall include recommendations for --
(A) methods for identifying, characterizing, determining,
quantifying, and measuring visibility impairment in Federal areas
referred to in paragraph (1), and
(B) modeling techniques (or other methods) for determining the extent
to which manmade air pollution may reasonably be anticipated to cause or
contribute to such impairment, and
(C) methods for preventing and remedying such manmade air pollution
and resulting visibility impairment.
Such report shall also identify the classes or categories of sources
and the types of air pollutants which, alone or in conjunction with
other sources or pollutants, may reasonably be anticipated to cause or
contribute significantly to impairment of visibility.
(4) Not later than twenty-four months after August 7, 1977, and after
notice and public hearing, the Administrator shall promulgate
regulations to assure (A) reasonable progress toward meeting the
national goal specified in paragraph (1), and (B) compliance with the
requirements of this section.
(b) Regulations
Regulations under subsection (a)(4) of this section shall --
(1) provide guidelines to the States, taking into account the
recommendations under subsection (a)(3) of this section on appropriate
techniques and methods for implementing this section (as provided in
subparagraphs (A) through (C) of such subsection (a)(3)), and
(2) require each applicable implementation plan for a State in which
any area listed by the Administrator under subsection (a)(2) of this
section is located (or for a State the emissions from which may
reasonably be anticipated to cause or contribute to any impairment of
visibility in any such area) to contain such emission limits, schedules
of compliance and other measures as may be necessary to make reasonable
progress toward meeting the national goal specified in subsection (a) of
this section, including --
(A) except as otherwise provided pursuant to subsection (c) of this
section, a requirement that each major stationary source which is in
existence on August 7, 1977, but which has not been in operation for
more than fifteen years as of such date, and which, as determined by the
State (or the Administrator in the case of a plan promulgated under
section 7410(c) of this title) emits any air pollutant which may
reasonably be anticipated to cause or contribute to any impairment of
visibility in any such area, shall procure, install, and operate, as
expeditiously as practicable (and maintain thereafter) the best
available retrofit technology, as determined by the State (or the
Administrator in the case of a plan promulgated under section 7410(c) of
this title) for controlling emissions from such source for the purpose
of eliminating or reducing any such impairment, and
(B) a long-term (ten to fifteen years) strategy for making reasonable
progress toward meeting the national goal specified in subsection (a) of
this section.
In the case of a fossil-fuel fired generating powerplant having a
total generating capacity in excess of 750 megawatts, the emission
limitations required under this paragraph shall be determined pursuant
to guidelines, promulgated by the Administrator under paragraph (1).
(c) Exemptions
(1) The Administrator may, by rule, after notice and opportunity for
public hearing, exempt any major stationary source from the requirement
of subsection (b)(2)(A) of this section, upon his determination that
such source does not or will not, by itself or in combination with other
sources, emit any air pollutant which may reasonably be anticipated to
cause or contribute to a significant impairment of visibility in any
mandatory class I Federal area.
(2) Paragraph (1) of this subsection shall not be applicable to any
fossil-fuel fired powerplant with total design capacity of 750 megawatts
or more, unless the owner or operator of any such plant demonstrates to
the satisfaction of the Administrator that such powerplant is located at
such distance from all areas listed by the Administrator under
subsection (a)(2) of this section that such powerplant does not or will
not, by itself or in combination with other sources, emit any air
pollutant which may reasonably be anticipated to cause or contribute to
significant impairment of visibility in any such area.
(3) An exemption under this subsection shall be effective only upon
concurrence by the appropriate Federal land manager or managers with the
Administrator's determination under this subsection.
(d) Consultations with appropriate Federal land managers
Before holding the public hearing on the proposed revision of an
applicable implementation plan to meet the requirements of this section,
the State (or the Administrator, in the case of a plan promulgated under
section 7410(c) of this title) shall consult in person with the
appropriate Federal land manager or managers and shall include a summary
of the conclusions and recommendations of the Federal land managers in
the notice to the public.
(e) Buffer zones
In promulgating regulations under this section, the Administrator
shall not require the use of any automatic or uniform buffer zone or
zones.
(f) Nondiscretionary duty
For purposes of section 7604(a)(2) of this title, the meeting of the
national goal specified in subsection (a)(1) of this section by any
specific date or dates shall not be considered a ''nondiscretionary
duty'' of the Administrator.
(g) Definitions
For the purpose of this section --
(1) in determining reasonable progress there shall be taken into
consideration the costs of compliance, the time necessary for
compliance, and the energy and nonair quality environmental impacts of
compliance, and the remaining useful life of any existing source subject
to such requirements;
(2) in determining best available retrofit technology the State (or
the Administrator in determining emission limitations which reflect such
technology) shall take into consideration the costs of compliance, the
energy and nonair quality environmental impacts of compliance, any
existing pollution control technology in use at the source, the
remaining useful life of the source, and the degree of improvement in
visibility which may reasonably be anticipated to result from the use of
such technology;
(3) the term ''manmade air pollution'' means air pollution which
results directly or indirectly from human activities;
(4) the term ''as expeditiously as practicable'' means as
expeditiously as practicable but in no event later than five years after
the date of approval of a plan revision under this section (or the date
of promulgation of such a plan revision in the case of action by the
Administrator under section 7410(c) of this title for purposes of this
section);
(5) the term ''mandatory class I Federal areas'' means Federal areas
which may not be designated as other than class I under this part;
(6) the terms ''visibility impairment'' and ''impairment of
visibility'' shall include reduction in visual range and atmospheric
discoloration; and
(7) the term ''major stationary source'' means the following types of
stationary sources with the potential to emit 250 tons or more of any
pollutant: fossil-fuel fired steam electric plants of more than 250
million British thermal units per hour heat input, coal cleaning plants
(thermal dryers), kraft pulp mills, Portland Cement plants, primary zinc
smelters, iron and steel mill plants, primary aluminum ore reduction
plants, primary copper smelters, municipal incinerators capable of
charging more than 250 tons of refuse per day, hydrofluoric, sulfuric,
and nitric acid plants, petroleum refineries, lime plants, phosphate
rock processing plants, coke oven batteries, sulfur recovery plants,
carbon black plants (furnace process), primary lead smelters, fuel
conversion plants, sintering plants, secondary metal production
facilities, chemical process plants, fossil-fuel boilers of more than
250 million British thermal units per hour heat input, petroleum storage
and transfer facilities with a capacity exceeding 300,000 barrels,
taconite ore processing facilities, glass fiber processing plants,
charcoal production facilities.
(July 14, 1955, ch. 360, title I, 169A, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 128, 91 Stat. 742.)
Subpart effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC 7492. Visibility
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Studies
(1) The Administrator, in conjunction with the National Park Service
and other appropriate Federal agencies, shall conduct research to
identify and evaluate sources and source regions of both visibility
impairment and regions that provide predominantly clean air in class I
areas. A total of $8,000,000 per year for 5 years is authorized to be
appropriated for the Environmental Protection Agency and the other
Federal agencies to conduct this research. The research shall include
--
(A) expansion of current visibility related monitoring in class I
areas;
(B) assessment of current sources of visibility impairing pollution
and clean air corridors;
(C) adaptation of regional air quality models for the assessment of
visibility;
(D) studies of atmospheric chemistry and physics of visibility.
(2) Based on the findings available from the research required in
subsection (a)(1) of this section as well as other available scientific
and technical data, studies, and other available information pertaining
to visibility source-receptor relationships, the Administrator shall
conduct an assessment and evaluation that identifies, to the extent
possible, sources and source regions of visibility impairment including
natural sources as well as source regions of clear air for class I
areas. The Administrator shall produce interim findings from this study
within 3 years after November 15, 1990.
(b) Impacts of other provisions
Within 24 months after November 15, 1990, the Administrator shall
conduct an assessment of the progress and improvements in visibility in
class I areas that are likely to result from the implementation of the
provisions of the Clean Air Act Amendments of 1990 other than the
provisions of this section. Every 5 years thereafter the Administrator
shall conduct an assessment of actual progress and improvement in
visibility in class I areas. The Administrator shall prepare a written
report on each assessment and transmit copies of these reports to the
appropriate committees of Congress.
(c) Establishment of visibility transport regions and commissions
(1) Authority to establish visibility transport regions
Whenever, upon the Administrator's motion or by petition from the
Governors of at least two affected States, the Administrator has reason
to believe that the current or projected interstate transport of air
pollutants from one or more States contributes significantly to
visibility impairment in class I areas located in the affected States,
the Administrator may establish a transport region for such pollutants
that includes such States. The Administrator, upon the Administrator's
own motion or upon petition from the Governor of any affected State, or
upon the recommendations of a transport commission established under
subsection (b) of this section /1/ may --
(A) add any State or portion of a State to a visibility transport
region when the Administrator determines that the interstate transport
of air pollutants from such State significantly contributes to
visibility impairment in a class I area located within the transport
region, or
(B) remove any State or portion of a State from the region whenever
the Administrator has reason to believe that the control of emissions in
that State or portion of the State pursuant to this section will not
significantly contribute to the protection or enhancement of visibility
in any class I area in the region.
(2) Visibility transport commissions
Whenever the Administrator establishes a transport region under
subsection (c)(1) of this section, the Administrator shall establish a
transport commission comprised of (as a minimum) each of the following
members:
(A) the Governor of each State in the Visibility Transport Region, or
the Governor's designee;
(B) The /2/ Administrator or the Administrator's designee; and
(C) A /2/ representative of each Federal agency charged with the
direct management of each class I area or areas within the Visibility
Transport Region.
(3) Ex officio members
All representatives of the Federal Government shall be ex officio
members.
(4) Federal Advisory Committee Act
The visibility transport commissions shall be exempt from the
requirements of the Federal Advisory Committee Act (5 U.S.C. App.).
(d) Duties of visibility transport commissions
A Visibility Transport Commission --
(1) shall assess the scientific and technical data, studies, and
other currently available information, including studies conducted
pursuant to subsection (a)(1) of this section, pertaining to adverse
impacts on visibility from potential or projected growth in emissions
from sources located in the Visibility Transport Region; and
(2) shall, within 4 years of establishment, issue a report to the
Administrator recommending what measures, if any, should be taken under
this chapter to remedy such adverse impacts. The report required by
this subsection shall address at least the following measures:
(A) the establishment of clean air corridors, in which additional
restrictions on increases in emissions may be appropriate to protect
visibility in affected class I areas;
(B) the imposition of the requirements of part D of this subchapter
affecting the construction of new major stationary sources or major
modifications to existing sources in such clean air corridors
specifically including the alternative siting analysis provisions of
section 7503(a)(5) of this title; and
(C) the promulgation of regulations under section 7491 of this title
to address long range strategies for addressing regional haze which
impairs visibility in affected class I areas.
(e) Duties of Administrator
(1) The Administrator shall, taking into account the studies pursuant
to subsection (a)(1) of this section and the reports pursuant to
subsection (d)(2) of this section and any other relevant information,
within eighteen months of receipt of the report referred to in
subsection (d)(2) of this section, carry out the Administrator's
regulatory responsibilities under section 7491 of this title, including
criteria for measuring ''reasonable progress'' toward the national goal.
(2) Any regulations promulgated under section 7491 of this title
pursuant to this subsection shall require affected States to revise
within 12 months their implementation plans under section 7410 of this
title to contain such emission limits, schedules of compliance, and
other measures as may be necessary to carry out regulations promulgated
pursuant to this subsection.
(f) Grand Canyon visibility transport commission
The Administrator pursuant to subsection (c)(1) of this section
shall, within 12 months, establish a visibility transport commission for
the region affecting the visibility of the Grand Canyon National Park.
(July 14, 1955, ch. 360, title I, 169B, as added Nov. 15, 1990, Pub.
L. 101-549, title VIII, 816, 104 Stat. 2695.)
The Clean Air Act Amendments of 1990, referred to in subsec. (b),
probably means Pub. L. 101-549, Nov. 15, 1990, 104 Stat. 2399. For
complete classification of this Act to the Code, see Short Title note
set out under section 7401 of this title and Tables.
The Federal Advisory Committee Act, referred to in subsec. (c)(4),
is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is
set out in the Appendix to Title 5, Government Organization and
Employees.
/1/ So in original. Words ''subsection (b) of this section''
probably should be ''paragraph (2)''.
/2/ So in original. Probably should not be capitalized.
42 USC Part D -- Plan Requirements for Nonattainment Areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC subpart 1 -- nonattainment areas in general
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7501. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purpose of this part --
(1) Reasonable further progress. -- The term ''reasonable further
progress'' means such annual incremental reductions in emissions of the
relevant air pollutant as are required by this part or may reasonably be
required by the Administrator for the purpose of ensuring attainment of
the applicable national ambient air quality standard by the applicable
date.
(2) Nonattainment area. -- The term ''nonattainment area'' means, for
any air pollutant, an area which is designated ''nonattainment'' with
respect to that pollutant within the meaning of section 7407(d) of this
title.
(3) The term ''lowest achievable emission rate'' means for any
source, that rate of emissions which reflects --
(A) the most stringent emission limitation which is contained in the
implementation plan of any State for such class or category of source,
unless the owner or operator of the proposed source demonstrates that
such limitations are not achievable, or
(B) the most stringent emission limitation which is achieved in
practice by such class or category of source, whichever is more
stringent.
In no event shall the application of this term permit a proposed new
or modified source to emit any pollutant in excess of the amount
allowable under applicable new source standards of performance.
(4) The terms ''modifications'' and ''modified'' mean the same as the
term ''modification'' as used in section 7411(a)(4) of this title.
(July 14, 1955, ch. 360, title I, 171, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 745, and amended Nov. 15, 1990,
Pub. L. 101-549, title I, 102(a)(2), 104 Stat. 2412.)
1990 -- Pub. L. 101-549, 102(a)(2)(A), struck out ''and section
7410(a)(2)(I) of this title'' after ''purpose of this part''.
Pars. (1), (2). Pub. L. 101-549, 102(a)(2)(B), (C), amended pars.
(1) and (2) generally. Prior to amendment, pars. (1) and (2) read as
follows:
''(1) The term 'reasonable further progress' means annual incremental
reductions in emissions of the applicable air pollutant (including
substantial reductions in the early years following approval or
promulgation of plan provisions under this part and section
7410(a)(2)(I) of this title and regular reductions thereafter) which are
sufficient in the judgment of the Administrator, to provide for
attainment of the applicable national ambient air quality standard by
the date required in section 7502(a) of this title.
''(2) The term 'nonattainment area' means, for any air pollutant an
area which is shown by monitored data or which is calculated by air
quality modeling (or other methods determined by the Administrator to be
reliable) to exceed any national ambient air quality standard for such
pollutant. Such term includes any area identified under subparagraphs
(A) through (C) of section 7407(d)(1) of this title.''
Part effective Aug. 7, 1977, except as otherwise expressly provided,
see section 406(d) of Pub. L. 95-95, set out as an Effective Date of
1977 Amendment note under section 7401 of this title.
42 USC 7502. Nonattainment plan provisions in general
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Classifications and attainment dates
(1) Classifications
(A) On or after the date the Administrator promulgates the
designation of an area as a nonattainment area pursuant to section
7407(d) of this title with respect to any national ambient air quality
standard (or any revised standard, including a revision of any standard
in effect on November 15, 1990), the Administrator may classify the area
for the purpose of applying an attainment date pursuant to paragraph
(2), and for other purposes. In determining the appropriate
classification, if any, for a nonattainment area, the Administrator may
consider such factors as the severity of nonattainment in such area and
the availability and feasibility of the pollution control measures that
the Administrator believes may be necessary to provide for attainment of
such standard in such area.
(B) The Administrator shall publish a notice in the Federal Register
announcing each classification under subparagraph (A), except the
Administrator shall provide an opportunity for at least 30 days for
written comment. Such classification shall not be subject to the
provisions of sections 553 through 557 of title 5 (concerning notice and
comment) and shall not be subject to judicial review until the
Administrator takes final action under subsection (k) or (l) of section
7410 of this title (concerning action on plan submissions) or section
7509 of this title (concerning sanctions) with respect to any plan
submissions required by virtue of such classification.
(C) This paragraph shall not apply with respect to nonattainment
areas for which classifications are specifically provided under other
provisions of this part.
(2) Attainment dates for nonattainment areas
(A) The attainment date for an area designated nonattainment with
respect to a national primary ambient air quality standard shall be the
date by which attainment can be achieved as expeditiously as
practicable, but no later than 5 years from the date such area was
designated nonattainment under section 7407(d) of this title, except
that the Administrator may extend the attainment date to the extent the
Administrator determines appropriate, for a period no greater than 10
years from the date of designation as nonattainment, considering the
severity of nonattainment and the availability and feasibility of
pollution control measures.
(B) The attainment date for an area designated nonattainment with
respect to a secondary national ambient air quality standard shall be
the date by which attainment can be achieved as expeditiously as
practicable after the date such area was designated nonattainment under
section 7407(d) of this title.
(C) Upon application by any State, the Administrator may extend for 1
additional year (hereinafter referred to as the ''Extension Year'') the
attainment date determined by the Administrator under subparagraph (A)
or (B) if --
(i) the State has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan, and
(ii) in accordance with guidance published by the Administrator, no
more than a minimal number of exceedances of the relevant national
ambient air quality standard has occurred in the area in the year
preceding the Extension Year.
No more than 2 one-year extensions may be issued under this
subparagraph for a single nonattainment area.
(D) This paragraph shall not apply with respect to nonattainment
areas for which attainment dates are specifically provided under other
provisions of this part.
(b) Schedule for plan submissions
At the time the Administrator promulgates the designation of an area
as nonattainment with respect to a national ambient air quality standard
under section 7407(d) of this title, the Administrator shall establish a
schedule according to which the State containing such area shall submit
a plan or plan revision (including the plan items) meeting the
applicable requirements of subsection (c) of this section and section
7410(a)(2) of this title. Such schedule shall at a minimum, include a
date or dates, extending no later than 3 years from the date of the
nonattainment designation, for the submission of a plan or plan revision
(including the plan items) meeting the applicable requirements of
subsection (c) of this section and section 7410(a)(2) of this title.
(c) Nonattainment plan provisions
The plan provisions (including plan items) required to be submitted
under this part shall comply with each of the following:
(1) In general
Such plan provisions shall provide for the implementation of all
reasonably available control measures as expeditiously as practicable
(including such reductions in emissions from existing sources in the
area as may be obtained through the adoption, at a minimum, of
reasonably available control technology) and shall provide for
attainment of the national primary ambient air quality standards.
(2) RFP
Such plan provisions shall require reasonable further progress.
(3) Inventory
Such plan provisions shall include a comprehensive, accurate, current
inventory of actual emissions from all sources of the relevant pollutant
or pollutants in such area, including such periodic revisions as the
Administrator may determine necessary to assure that the requirements of
this part are met.
(4) Identification and quantification
Such plan provisions shall expressly identify and quantify the
emissions, if any, of any such pollutant or pollutants which will be
allowed, in accordance with section 7503(a)(1)(B) of this title, from
the construction and operation of major new or modified stationary
sources in each such area. The plan shall demonstrate to the
satisfaction of the Administrator that the emissions quantified for this
purpose will be consistent with the achievement of reasonable further
progress and will not interfere with attainment of the applicable
national ambient air quality standard by the applicable attainment date.
(5) Permits for new and modified major stationary sources
Such plan provisions shall require permits for the construction and
operation of new or modified major stationary sources anywhere in the
nonattainment area, in accordance with section 7503 of this title.
(6) Other measures
Such plan provisions shall include enforceable emission limitations,
and such other control measures, means or techniques (including economic
incentives such as fees, marketable permits, and auctions of emission
rights), as well as schedules and timetables for compliance, as may be
necessary or appropriate to provide for attainment of such standard in
such area by the applicable attainment date specified in this part.
(7) Compliance with section 7410(a)(2)
Such plan provisions shall also meet the applicable provisions of
section 7410(a)(2) of this title.
(8) Equivalent techniques
Upon application by any State, the Administrator may allow the use of
equivalent modeling, emission inventory, and planning procedures, unless
the Administrator determines that the proposed techniques are, in the
aggregate, less effective than the methods specified by the
Administrator.
(9) Contingency measures
Such plan shall provide for the implementation of specific measures
to be undertaken if the area fails to make reasonable further progress,
or to attain the national primary ambient air quality standard by the
attainment date applicable under this part. Such measures shall be
included in the plan revision as contingency measures to take effect in
any such case without further action by the State or the Administrator.
(d) Plan revisions required in response to finding of plan inadequacy
Any plan revision for a nonattainment area which is required to be
submitted in response to a finding by the Administrator pursuant to
section 7410(k)(5) of this title (relating to calls for plan revisions)
must correct the plan deficiency (or deficiencies) specified by the
Administrator and meet all other applicable plan requirements of section
7410 of this title and this part. The Administrator may reasonably
adjust the dates otherwise applicable under such requirements to such
revision (except for attainment dates that have not yet elapsed), to the
extent necessary to achieve a consistent application of such
requirements. In order to facilitate submittal by the States of
adequate and approvable plans consistent with the applicable
requirements of this chapter, the Administrator shall, as appropriate
and from time to time, issue written guidelines, interpretations, and
information to the States which shall be available to the public, taking
into consideration any such guidelines, interpretations, or information
provided before November 15, 1990.
(e) Future modification of standard
If the Administrator relaxes a national primary ambient air quality
standard after November 15, 1990, the Administrator shall, within 12
months after the relaxation, promulgate requirements applicable to all
areas which have not attained that standard as of the date of such
relaxation. Such requirements shall provide for controls which are not
less stringent than the controls applicable to areas designated
nonattainment before such relaxation.
(July 14, 1955, ch. 360, title I, 172, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 746, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(55), (56), 91 Stat. 1402; Nov. 15, 1990, Pub. L.
101-549, title I, 102(b), 104 Stat. 2412.)
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions which related to: in subsec. (a),
expeditious attainment of national ambient air quality standards; in
subsec. (b), requisite provisions of plan; and in subsec. (c),
attainment of applicable standard not later than July 1, 1987.
1977 -- Subsec. (b)(4). Pub. L. 95-190, 14(a)(55), substituted
''subsection (a) of this section'' for ''paragraph (1)''.
Subsec. (c). Pub. L. 95-190, 14(a)(56), substituted ''December 31''
for ''July 1''.
Section 129(a) of Pub. L. 95-95, as amended by Pub. L. 95-190,
14(b)(2), (3), Nov. 16, 1977, 91 Stat. 1404, provided that:
''(1) Before July 1, 1979, the interpretative regulation of the
Administrator of the Environmental Protection Agency published in 41
Federal Register 55524-30, December 21, 1976, as may be modified by rule
of the Administrator, shall apply except that the baseline to be used
for determination of appropriate emission offsets under such regulation
shall be the applicable implementation plan of the State in effect at
the time of application for a permit by a proposed major stationary
source (within the meaning of section 302 of the Clean Air Act) (section
7602 of this title).
''(2) Before July 1, 1979, the requirements of the regulation
referred to in paragraph (1) shall be waived by the Administrator with
respect to any pollutant if he determines that the State has --
''(A) an inventory of emissions of the applicable pollutant for each
nonattainment area (as defined in section 171 of the Clean Air Act
(section 7501 of this title)) that identifies the type, quantity, and
source of such pollutant so as to provide information sufficient to
demonstrate that the requirements of subparagraph (C) are being met;
''(B) an enforceable permit program which --
''(i) requires new or modified major stationary sources to meet
emission limitations at least as stringent as required under the permit
requirements referred to in paragraphs (2) and (3) of section 173 of the
Clean Air Act (section 7503 of this title) (relating to lowest
achievable emission rate and compliance by other sources) and which
assures compliance with the annual reduction requirements of
subparagraph (C); and
''(ii) requires existing sources to achieve such reduction in
emissions in the area as may be obtained through the adoption, at a
minimum of reasonably available control technology, and
''(C) a program which requires reductions in total allowable
emissions in the area prior to July 1, 1979, so as to provide for the
same level of emission reduction as would result from the application of
the regulation referred to in paragraph (1).
The Administrator shall terminate such waiver if in his judgment the
reduction in emissions actually being attained is less than the
reduction on which the waiver was conditioned pursuant to subparagraph
(C), or if the Administrator determines that the State is no longer in
compliance with any requirement of this paragraph. Upon application by
the State, the Administrator may reinstate a waiver terminated under the
preceding sentence if he is satisfied that such State is in compliance
with all requirements of this subsection.
''(3) Operating permits may be issued to those applicants who were
properly granted construction permits, in accordance with the law and
applicable regulations in effect at the time granted, for construction
of a new or modified source in areas exceeding national primary air
quality standards on or before the date of the enactment of this Act
(Aug. 7, 1977) if such construction permits were granted prior to the
date of the enactment of this Act and the person issued any such permit
is able to demonstrate that the emissions from the source will be within
the limitations set forth in such construction permit.''
Section 129(c) of Pub. L. 95-95, as amended by Pub. L. 95-190,
14(b)(4), Nov. 16, 1977, 91 Stat. 1405, provided that:
''Notwithstanding the requirements of section 406(d)(2) (set out as an
Effective Date of 1977 Amendment note under section 7401 of this title)
(relating to date required for submission of certain implementation plan
revisions), for purposes of section 110(a)(2) of the Clean Air Act
(section 7410(a)(2) of this title) each State in which there is any
nonattainment area (as defined in part D of title I of the Clean Air
Act) (this part) shall adopt and submit an implementation plan revision
which meets the requirements of section 110(a)(2)(I) (section
7410(a)(2)(I) of this title) and part D of title I of the Clean Air Act
(this part) not later than January 1, 1979. In the case of any State
for which a plan revision adopted and submitted before such date has
made the demonstration required under section 172(a)(2) of the Clean Air
Act (subsec. (a)(2) of this section) (respecting impossibility of
attainment before 1983), such State shall adopt and submit to the
Administrator a plan revision before July 1, 1982, which meets the
requirements of section 172(b) and (c) of such Act (subsecs. (b) and (c)
of this section).''
42 USC 7503. Permit requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
The permit program required by section 7502(b)(6) /1/ of this title
shall provide that permits to construct and operate may be issued if --
(1) in accordance with regulations issued by the Administrator for
the determination of baseline emissions in a manner consistent with the
assumptions underlying the applicable implementation plan approved under
section 7410 of this title and this part, the permitting agency
determines that --
(A) by the time the source is to commence operation, sufficient
offsetting emissions reductions have been obtained, such that total
allowable emissions from existing sources in the region, from new or
modified sources which are not major emitting facilities, and from the
proposed source will be sufficiently less than total emissions from
existing sources (as determined in accordance with the regulations under
this paragraph) prior to the application for such permit to construct or
modify so as to represent (when considered together with the plan
provisions required under section 7502 of this title) reasonable further
progress (as defined in section 7501 of this title); or
(B) in the case of a new or modified major stationary source which is
located in a zone (within the nonattainment area) identified by the
Administrator, in consultation with the Secretary of Housing and Urban
Development, as a zone to which economic development should be targeted,
that emissions of such pollutant resulting from the proposed new or
modified major stationary source will not cause or contribute to
emissions levels which exceed the allowance permitted for such pollutant
for such area from new or modified major stationary sources under
section 7502(c) of this title;
(2) the proposed source is required to comply with the lowest
achievable emission rate;
(3) the owner or operator of the proposed new or modified source has
demonstrated that all major stationary sources owned or operated by such
person (or by any entity controlling, controlled by, or under common
control with such person) in such State are subject to emission
limitations and are in compliance, or on a schedule for compliance, with
all applicable emission limitations and standards under this chapter;
and /2/
(4) the Administrator has not determined that the applicable
implementation plan is not being adequately implemented for the
nonattainment area in which the proposed source is to be constructed or
modified in accordance with the requirements of this part; and
(5) an analysis of alternative sites, sizes, production processes,
and environmental control techniques for such proposed source
demonstrates that benefits of the proposed source significantly outweigh
the environmental and social costs imposed as a result of its location,
construction, or modification.
Any emission reductions required as a precondition of the issuance of
a permit under paragraph (1) shall be federally enforceable before such
permit may be issued.
(b) Prohibition on use of old growth allowances
Any growth allowance included in an applicable implementation plan to
meet the requirements of section 7502(b)(5) of this title (as in effect
immediately before November 15, 1990) shall not be valid for use in any
area that received or receives a notice under section 7410(a)(2)(H)(ii)
of this title (as in effect immediately before November 15, 1990) or
under section 7410(k)(1) of this title that its applicable
implementation plan containing such allowance is substantially
inadequate.
(c) Offsets
(1) The owner or operator of a new or modified major stationary
source may comply with any offset requirement in effect under this part
for increased emissions of any air pollutant only by obtaining emission
reductions of such air pollutant from the same source or other sources
in the same nonattainment area, except that the State may allow the
owner or operator of a source to obtain such emission reductions in
another nonattainment area if (A) the other area has an equal or higher
nonattainment classification than the area in which the source is
located and (B) emissions from such other area contribute to a violation
of the national ambient air quality standard in the nonattainment area
in which the source is located. Such emission reductions shall be, by
the time a new or modified source commences operation, in effect and
enforceable and shall assure that the total tonnage of increased
emissions of the air pollutant from the new or modified source shall be
offset by an equal or greater reduction, as applicable, in the actual
emissions of such air pollutant from the same or other sources in the
area.
(2) Emission reductions otherwise required by this chapter shall not
be creditable as emissions reductions for purposes of any such offset
requirement. Incidental emission reductions which are not otherwise
required by this chapter shall be creditable as emission reductions for
such purposes if such emission reductions meet the requirements of
paragraph (1).
(d) Control technology information
The State shall provide that control technology information from
permits issued under this section will be promptly submitted to the
Administrator for purposes of making such information available through
the RACT/BACT/LAER clearinghouse to other States and to the general
public.
(e) Rocket engines or motors
The permitting authority of a State shall allow a source to offset by
alternative or innovative means emission increases from rocket engine
and motor firing, and cleaning related to such firing, at an existing or
modified major source that tests rocket engines or motors under the
following conditions:
(1) Any modification proposed is solely for the purpose of expanding
the testing of rocket engines or motors at an existing source that is
permitted to test such engines on November 15, 1990.
(2) The source demonstrates to the satisfaction of the permitting
authority of the State that it has used all reasonable means to obtain
and utilize offsets, as determined on an annual basis, for the emissions
increases beyond allowable levels, that all available offsets are being
used, and that sufficient offsets are not available to the source.
(3) The source has obtained a written finding from the Department of
Defense, Department of Transportation, National Aeronautics and Space
Administration or other appropriate Federal agency, that the testing of
rocket motors or engines at the facility is required for a program
essential to the national security.
(4) The source will comply with an alternative measure, imposed by
the permitting authority, designed to offset any emission increases
beyond permitted levels not directly offset by the source. In lieu of
imposing any alternative offset measures, the permitting authority may
impose an emissions fee to be paid to such authority of a State which
shall be an amount no greater than 1.5 times the average cost of
stationary source control measures adopted in that area during the
previous 3 years. The permitting authority shall utilize the fees in a
manner that maximizes the emissions reductions in that area.
(July 14, 1955, ch. 360, title I, 173, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 748, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(57), (58), 91 Stat. 1403; Nov. 15, 1990, Pub. L.
101-549, title I, 102(c), 104 Stat. 2415.)
Section 7502(b) of this title, referred to in subsec. (a), was
amended generally by Pub. L. 101-549, title I, 102(b), Nov. 15, 1990,
104 Stat. 2412, and, as so amended, does not contain a par. (6). See
section 7502(c)(5) of this title.
1990 -- Pub. L. 101-549, 102(c)(1), made technical amendment to
section catchline.
Pub. L. 101-549, 102(c)(2), (8), designated existing provisions as
subsec. (a), inserted heading, and substituted ''(1) shall be federally
enforceable'' for ''(1)(A) shall be legally binding'' in last sentence.
Subsec. (a)(1). Pub. L. 101-549, 102(c)(3), inserted at beginning
''in accordance with regulations issued by the Administrator for the
determination of baseline emissions in a manner consistent with the
assumptions underlying the applicable implementation plan approved under
section 7410 of this title and this part,''.
Subsec. (a)(1)(A). Pub. L. 101-549, 102(c)(4), inserted ''sufficient
offsetting emissions reductions have been obtained, such that'' after
''to commence operation,'' and substituted ''(as determined in
accordance with the regulations under this paragraph)'' for ''allowed
under the applicable implementation plan''.
Subsec. (a)(1)(B). Pub. L. 101-549, 102(c)(5), inserted at beginning
''in the case of a new or modified major stationary source which is
located in a zone (within the nonattainment area) identified by the
Administrator, in consultation with the Secretary of Housing and Urban
Development, as a zone to which economic development should be
targeted,'' and substituted ''7502(c)'' for ''7502(b)''.
Subsec. (a)(4). Pub. L. 101-549, 102(c)(6), inserted at beginning
''the Administrator has not determined that'', substituted ''not being
adequately implemented'' for ''being carried out'', and substituted '';
and'' for period at end.
Subsec. (a)(5). Pub. L. 101-549, 102(c)(7), added par. (5).
Subsec. (b). Pub. L. 101-549, 102(c)(9), added subsec. (b).
Subsecs. (c) to (e). Pub. L. 101-549, 102(c)(10), added subsecs.
(c) to (e).
1977 -- Par. (1)(A). Pub. L. 95-190, 14(a)(57), inserted ''or
modified'' after ''from new'' and ''applicable'' before ''implementation
plan'', and substituted ''source'' for ''facility'' wherever appearing.
Par. (4). Pub. L. 95-190, 14(a)(58), added par. (4).
Pub. L. 100-202, 101(f) (title II), Dec. 22, 1987, 101 Stat.
1329-187, 1329-199, provided that: ''No restriction or prohibition on
construction, permitting, or funding under sections 110(a)(2)(I),
173(4), 176(a), 176(b), or 316 of the Clean Air Act (sections
7410(a)(2)(I), 7503(4), 7506(a), (b), 7616 of this title) shall be
imposed or take effect during the period prior to August 31, 1988, by
reason of (1) the failure of any nonattainment area to attain the
national primary ambient air quality standard under the Clean Air Act
(this chapter) for photochemical oxidants (ozone) or carbon monoxide (or
both) by December 31, 1987, (2) the failure of any State to adopt and
submit to the Administrator of the Environmental Protection Agency an
implementation plan that meets the requirements of part D of title I of
such Act (this part) and provides for attainment of such standards by
December 31, 1987, (3) the failure of any State or designated local
government to implement the applicable implementation plan, or (4) any
combination of the foregoing. During such period and consistent with
the preceding sentence, the issuance of a permit (including required
offsets) under section 173 of such Act (this section) for the
construction or modification of a source in a nonattainment area shall
not be denied solely or partially by reason of the reference contained
in section 171(l) of such Act (section 7501(1) of this title) to the
applicable date established in section 172(a) (section 7502(a) of this
title). This subsection (probably means the first 3 sentences of this
note) shall not apply to any restriction or prohibition in effect under
sections 110(a)(2)(I), 173(4), 176(a), 176(b), or 316 of such Act prior
to the enactment of this section (Dec. 22, 1987). Prior to August 31,
1988, the Administrator of the Environmental Protection Agency shall
evaluate air quality data and make determinations with respect to which
areas throughout the nation have attained, or failed to attain, either
or both of the national primary ambient air quality standards referred
to in subsection (a) (probably means the first 3 sentences of this note)
and shall take appropriate steps to designate those areas failing to
attain either or both of such standards as nonattainment areas within
the meaning of part D of title I of the Clean Air Act.''
/1/ See References in Text note below.
/2/ So in original. The word ''and'' probably should not appear.
42 USC 7504. Planning procedures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
For any ozone, carbon monoxide, or PM-10 nonattainment area, the
State containing such area and elected officials of affected local
governments shall, before the date required for submittal of the
inventory described under sections 7511a(a)(1) and 7512a(a)(1) of this
title, jointly review and update as necessary the planning procedures
adopted pursuant to this subsection as in effect immediately before
November 15, 1990, or develop new planning procedures pursuant to this
subsection, as appropriate. In preparing such procedures the State and
local elected officials shall determine which elements of a revised
implementation plan will be developed, adopted, and implemented (through
means including enforcement) by the State and which by local governments
or regional agencies, or any combination of local governments, regional
agencies, or the State. The implementation plan required by this part
shall be prepared by an organization certified by the State, in
consultation with elected officials of local governments and in
accordance with the determination under the second sentence of this
subsection. Such organization shall include elected officials of local
governments in the affected area, and representatives of the State air
quality planning agency, the State transportation planning agency, the
metropolitan planning organization designated to conduct the continuing,
cooperative and comprehensive transportation planning process for the
area under section 134 of title 23, the organization responsible for the
air quality maintenance planning process under regulations implementing
this chapter, and any other organization with responsibilities for
developing, submitting, or implementing the plan required by this part.
Such organization may be one that carried out these functions before
November 15, 1990.
(b) Coordination
The preparation of implementation plan provisions and subsequent plan
revisions under the continuing transportation-air quality planning
process described in section 7408(e) of this title shall be coordinated
with the continuing, cooperative and comprehensive transportation
planning process required under section 134 of title 23, and such
planning processes shall take into account the requirements of this
part.
(c) Joint planning
In the case of a nonattainment area that is included within more than
one State, the affected States may jointly, through interstate compact
or otherwise, undertake and implement all or part of the planning
procedures described in this section.
(July 14, 1955, ch. 360, title I, 174, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 748, and amended Nov. 15, 1990,
Pub. L. 101-549, title I, 102(d), 104 Stat. 2417.)
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions which related to: in subsec. (a),
preparation of implementation plan by designated organization; and in
subsec. (b), coordination of plan preparation.
42 USC 7505. Environmental Protection Agency grants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plan revision development costs
The Administrator shall make grants to any organization of local
elected officials with transportation or air quality maintenance
planning responsibilities recognized by the State under section 7504(a)
of this title for payment of the reasonable costs of developing a plan
revision under this part.
(b) Uses of grant funds
The amount granted to any organization under subsection (a) of this
section shall be 100 percent of any additional costs of developing a
plan revision under this part for the first two fiscal years following
receipt of the grant under this paragraph, and shall supplement any
funds available under Federal law to such organization for
transportation or air quality maintenance planning. Grants under this
section shall not be used for construction.
(July 14, 1955, ch. 360, title I, 175, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 749.)
42 USC 7505a. Maintenance plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plan revision
Each State which submits a request under section 7407(d) of this
title for redesignation of a nonattainment area for any air pollutant as
an area which has attained the national primary ambient air quality
standard for that air pollutant shall also submit a revision of the
applicable State implementation plan to provide for the maintenance of
the national primary ambient air quality standard for such air pollutant
in the area concerned for at least 10 years after the redesignation.
The plan shall contain such additional measures, if any, as may be
necessary to ensure such maintenance.
(b) Subsequent plan revisions
8 years after redesignation of any area as an attainment area under
section 7407(d) of this title, the State shall submit to the
Administrator an additional revision of the applicable State
implementation plan for maintaining the national primary ambient air
quality standard for 10 years after the expiration of the 10-year period
referred to in subsection (a) of this section.
(c) Nonattainment requirements applicable pending plan approval
Until such plan revision is approved and an area is redesignated as
attainment for any area designated as a nonattainment area, the
requirements of this part shall continue in force and effect with
respect to such area.
(d) Contingency provisions
Each plan revision submitted under this section shall contain such
contingency provisions as the Administrator deems necessary to assure
that the State will promptly correct any violation of the standard which
occurs after the redesignation of the area as an attainment area. Such
provisions shall include a requirement that the State will implement all
measures with respect to the control of the air pollutant concerned
which were contained in the State implementation plan for the area
before redesignation of the area as an attainment area. The failure of
any area redesignated as an attainment area to maintain the national
ambient air quality standard concerned shall not result in a requirement
that the State revise its State implementation plan unless the
Administrator, in the Administrator's discretion, requires the State to
submit a revised State implementation plan.
(July 14, 1955, ch. 360, title I, 175A, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 102(e), 104 Stat. 2418.)
42 USC 7506. Limitations on certain Federal assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a), (b) Repealed. Pub. L. 101-549, title I, 110(4), Nov. 15,
1990, 104 Stat. 2470
(c) Activities not conforming to approved or promulgated plans
(1) No department, agency, or instrumentality of the Federal
Government shall engage in, support in any way or provide financial
assistance for, license or permit, or approve, any activity which does
not conform to an implementation plan after it has been approved or
promulgated under section 7410 of this title. No metropolitan planning
organization designated under section 134 of title 23, shall give its
approval to any project, program, or plan which does not conform to an
implementation plan approved or promulgated under section 7410 of this
title. The assurance of conformity to such an implementation plan shall
be an affirmative responsibility of the head of such department, agency,
or instrumentality. Conformity to an implementation plan means --
(A) conformity to an implementation plan's purpose of eliminating or
reducing the severity and number of violations of the national ambient
air quality standards and achieving expeditious attainment of such
standards; and
(B) that such activities will not --
(i) cause or contribute to any new violation of any standard in any
area;
(ii) increase the frequency or severity of any existing violation of
any standard in any area; or
(iii) delay timely attainment of any standard or any required interim
emission reductions or other milestones in any area.
The determination of conformity shall be based on the most recent
estimates of emissions, and such estimates shall be determined from the
most recent population, employment, travel and congestion estimates as
determined by the metropolitan planning organization or other agency
authorized to make such estimates.
(2) Any transportation plan or program developed pursuant to title 23
or the Urban Mass Transportation Act /1/ (49 App. U.S.C. 1601 et seq.)
shall implement the transportation provisions of any applicable
implementation plan approved under this chapter applicable to all or
part of the area covered by such transportation plan or program. No
Federal agency may approve, accept or fund any transportation plan,
program or project unless such plan, program or project has been found
to conform to any applicable implementation plan in effect under this
chapter. In particular --
(A) no transportation plan or transportation improvement program may
be adopted by a metropolitan planning organization designated under
title 23 or the Urban Mass Transportation Act /1/ (49 App. U.S.C. 1601
et seq.), or be found to be in conformity by a metropolitan planning
organization until a final determination has been made that emissions
expected from implementation of such plans and programs are consistent
with estimates of emissions from motor vehicles and necessary emissions
reductions contained in the applicable implementation plan, and that the
plan or program will conform to the requirements of paragraph (1)(B);
(B) no metropolitan planning organization or other recipient of funds
under title 23 or the Urban Mass Transportation Act /1/ (49 App. U.S.C.
1601 et seq.) shall adopt or approve a transportation improvement
program of projects until it determines that such program provides for
timely implementation of transportation control measures consistent with
schedules included in the applicable implementation plan;
(C) a transportation project may be adopted or approved by a
metropolitan planning organization or any recipient of funds designated
under title 23 or the Urban Mass Transportation Act /1/ (49 App. U.S.C.
1601 et seq.), or found in conformity by a metropolitan planning
organization or approved, accepted, or funded by the Department of
Transportation only if it meets either the requirements of subparagraph
(D) or the following requirements --
(i) such a project comes from a conforming plan and program;
(ii) the design concept and scope of such project have not changed
significantly since the conformity finding regarding the plan and
program from which the project derived; and
(iii) the design concept and scope of such project at the time of the
conformity determination for the program was adequate to determine
emissions.
(D) Any project not referred to in subparagraph (C) shall be treated
as conforming to the applicable implementation plan only if it is
demonstrated that the projected emissions from such project, when
considered together with emissions projected for the conforming
transportation plans and programs within the nonattainment area, do not
cause such plans and programs to exceed the emission reduction
projections and schedules assigned to such plans and programs in the
applicable implementation plan.
(3) Until such time as the implementation plan revision referred to
in paragraph (4)(C) is approved, conformity of such plans, programs, and
projects will be demonstrated if --
(A) the transportation plans and programs --
(i) are consistent with the most recent estimates of mobile source
emissions;
(ii) provide for the expeditious implementation of transportation
control measures in the applicable implementation plan; and
(iii) with respect to ozone and carbon monoxide nonattainment areas,
contribute to annual emissions reductions consistent with sections
7511a(b)(1) and 7512a(a)(7) of this title; and
(B) the transportation projects --
(i) come from a conforming transportation plan and program as defined
in subparagraph (A) or for 12 months after November 15, 1990, from a
transportation program found to conform within 3 years prior to November
15, 1990; and
(ii) in carbon monoxide nonattainment areas, eliminate or reduce the
severity and number of violations of the carbon monoxide standards in
the area substantially affected by the project.
With regard to subparagraph (B)(ii), such determination may be made
as part of either the conformity determination for the transportation
program or for the individual project taken as a whole during the
environmental review phase of project development.
(4)(A) No later than one year after November 15, 1990, the
Administrator shall promulgate criteria and procedures for determining
conformity (except in the case of transportation plans, programs, and
projects) of, and for keeping the Administrator informed about, the
activities referred to in paragraph (1). No later than one year after
November 15, 1990, the Administrator, with the concurrence of the
Secretary of Transportation, shall promulgate criteria and procedures
for demonstrating and assuring conformity in the case of transportation
plans, programs, and projects. A suit may be brought against the
Administrator and the Secretary of Transportation under section 7604 of
this title to compel promulgation of such criteria and procedures and
the Federal district court shall have jurisdiction to order such
promulgation.
(B) The procedures and criteria shall, at a minimum --
(i) address the consultation procedures to be undertaken by
metropolitan planning organizations and the Secretary of Transportation
with State and local air quality agencies and State departments of
transportation before such organizations and the Secretary make
conformity determinations;
(ii) address the appropriate frequency for making conformity
determinations, but in no case shall such determinations for
transportation plans and programs be less frequent than every three
years; and
(iii) address how conformity determinations will be made with respect
to maintenance plans.
(C) Such procedures shall also include a requirement that each State
shall submit to the Administrator and the Secretary of Transportation
within 24 months of November 15, 1990, a revision to its implementation
plan that includes criteria and procedures for assessing the conformity
of any plan, program, or project subject to the conformity requirements
of this subsection.
(d) Priority of achieving and maintaining national primary ambient
air quality standards
Each department, agency, or instrumentality of the Federal Government
having authority to conduct or support any program with air-quality
related transportation consequences shall give priority in the exercise
of such authority, consistent with statutory requirements for allocation
among States or other jurisdictions, to the implementation of those
portions of plans prepared under this section to achieve and maintain
the national primary ambient air-quality standard. This paragraph
extends to, but is not limited to, authority exercised under the Urban
Mass Transportation Act /1/ (49 App. U.S.C. 1601 et seq.), title 23,
and the Housing and Urban Development Act.
(July 14, 1955, ch. 360, title I, 176, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 749, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(59), 91 Stat. 1403; Nov. 15, 1990, Pub. L.
101-549, title I, 101(f), 110(4), 104 Stat. 2409, 2470.)
Title 23, referred to in subsecs. (c)(2) and (d), is Title 23,
Highways.
The Urban Mass Transportation Act, referred to in subsecs. (c)(2)
and (d), probably means the Urban Mass Transportation Act of 1964, Pub.
L. 88-365, July 9, 1964, 78 Stat. 302, as amended, now known as the
Federal Transit Act, which is classified generally to chapter 21 ( 1601
et seq.) of Title 49, Appendix, Transportation. For complete
classification of this Act to the Code, see Short Title note set out
under section 1601 of Title 49, Appendix, and Tables.
The Housing and Urban Development Act, referred to in subsec. (d),
may be the name for a series of acts sharing the same name but enacted
in different years by Pub. L. 89-117, Aug. 10, 1965, 79 Stat. 451;
Pub. L. 90-448, Aug. 1, 1968, 82 Stat. 476; Pub. L. 91-152, Dec.
24, 1969, 83 Stat. 379; and Pub. L. 91-609, Dec. 31, 1970, 84 Stat.
1770, respectively. For complete classification of these Acts to the
Code, see Short Title notes set out under section 1701 of Title 12,
Banks and Banking, and Tables.
1990 -- Subsecs. (a), (b). Pub. L. 101-549, 110(4), struck out
subsec. (a) which related to approval of projects or award of grants,
and subsec. (b) which related to implementation of approved or
promulgated plans.
Subsec. (c). Pub. L. 101-549, 101(f), designated existing provisions
as par. (1), struck out ''(1)'', ''(2)'', ''(3)'', and ''(4)'' before
''engage in'', ''support in'', ''license or'', and ''approve, any'',
respectively, substituted ''conform to an implementation plan after it''
for ''conform to a plan after it'', ''conform to an implementation plan
approved'' for ''conform to a plan approved'', and ''conformity to such
an implementation plan shall'' for ''conformity to such a plan shall'',
inserted ''Conformity to an implementation plan means -- '' followed
immediately by subpars. (A) and (B) and closing provisions relating to
determination of conformity being based on recent estimates of emissions
and the determination of such estimates, and added pars. (2) to (4).
1977 -- Subsec. (a)(1). Pub. L. 95-190 inserted ''national'' before
''primary''.
/1/ See References in Text note below.
42 USC 7506a. Interstate transport commissions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority to establish interstate transport regions
Whenever, on the Administrator's own motion or by petition from the
Governor of any State, the Administrator has reason to believe that the
interstate transport of air pollutants from one or more States
contributes significantly to a violation of a national ambient air
quality standard in one or more other States, the Administrator may
establish, by rule, a transport region for such pollutant that includes
such States. The Administrator, on the Administrator's own motion or
upon petition from the Governor of any State, or upon the recommendation
of a transport commission established under subsection (b) of this
section, may --
(1) add any State or portion of a State to any region established
under this subsection whenever the Administrator has reason to believe
that the interstate transport of air pollutants from such State
significantly contributes to a violation of the standard in the
transport region, or
(2) remove any State or portion of a State from the region whenever
the Administrator has reason to believe that the control of emissions in
that State or portion of the State pursuant to this section will not
significantly contribute to the attainment of the standard in any area
in the region.
The Administrator shall approve or disapprove any such petition or
recommendation within 18 months of its receipt. The Administrator shall
establish appropriate proceedings for public participation regarding
such petitions and motions, including notice and comment.
(b) Transport commissions
(1) Establishment
Whenever the Administrator establishes a transport region under
subsection (a) of this section, the Administrator shall establish a
transport commission comprised of (at a minimum) each of the following
members:
(A) The Governor of each State in the region or the designee of each
such Governor.
(B) The Administrator or the Administrator's designee.
(C) The Regional Administrator (or the Administrator's designee) for
each Regional Office for each Environmental Protection Agency Region
affected by the transport region concerned.
(D) An air pollution control official representing each State in the
region, appointed by the Governor.
Decisions of, and recommendations and requests to, the Administrator
by each transport commission may be made only by a majority vote of all
members other than the Administrator and the Regional Administrators (or
designees thereof).
(2) Recommendations
The transport commission shall assess the degree of interstate
transport of the pollutant or precursors to the pollutant throughout the
transport region, assess strategies for mitigating the interstate
pollution, and recommend to the Administrator such measures as the
Commission determines to be necessary to ensure that the plans for the
relevant States meet the requirements of section 7410(a)(2)(D) of this
title. Such commission shall not be subject to the provisions of the
Federal Advisory Committee Act (5 U.S.C. App.).
(c) Commission requests
A transport commission established under subsection (b) of this
section may request the Administrator to issue a finding under section
7410(k)(5) of this title that the implementation plan for one or more of
the States in the transport region is substantially inadequate to meet
the requirements of section 7410(a)(2)(D) of this title. The
Administrator shall approve, disapprove, or partially approve and
partially disapprove such a request within 18 months of its receipt and,
to the extent the Administrator approves such request, issue the finding
under section 7410(k)(5) of this title at the time of such approval. In
acting on such request, the Administrator shall provide an opportunity
for public participation and shall address each specific recommendation
made by the commission. Approval or disapproval of such a request shall
constitute final agency action within the meaning of section 7607(b) of
this title.
(July 14, 1955, ch. 360, title I, 176A, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 102(f)(1), 104 Stat. 2419.)
The Federal Advisory Committee Act, referred to in subsec. (b)(2),
is Pub. L. 92-463, Oct. 6, 1972, 86 Stat. 770, as amended, which is
set out in the Appendix to Title 5, Government Organization and
Employees.
42 USC 7507. New motor vehicle emission standards in nonattainment
areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Notwithstanding section 7543(a) of this title, any State which has
plan provisions approved under this part may adopt and enforce for any
model year standards relating to control of emissions from new motor
vehicles or new motor vehicle engines and take such other actions as are
referred to in section 7543(a) of this title respecting such vehicles if
--
(1) such standards are identical to the California standards for
which a waiver has been granted for such model year, and
(2) California and such State adopt such standards at least two years
before commencement of such model year (as determined by regulations of
the Administrator).
Nothing in this section or in subchapter II of this chapter shall be
construed as authorizing any such State to prohibit or limit, directly
or indirectly, the manufacture or sale of a new motor vehicle or motor
vehicle engine that is certified in California as meeting California
standards, or to take any action of any kind to create, or have the
effect of creating, a motor vehicle or motor vehicle engine different
than a motor vehicle or engine certified in California under California
standards (a ''third vehicle'') or otherwise create such a ''third
vehicle''.
(July 14, 1955, ch. 360, title I, 177, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 750, and amended Nov. 15, 1990,
Pub. L. 101-549, title II, 232, 104 Stat. 2529.)
1990 -- Pub. L. 101-549 added sentence at end prohibiting States
from limiting or prohibiting sale or manufacture of new vehicles or
engines certified in California as having met California standards and
from taking any actions where effect of those actions would be to create
a ''third vehicle''.
42 USC 7508. Guidance documents
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator shall issue guidance documents under section 7408
of this title for purposes of assisting States in implementing
requirements of this part respecting the lowest achievable emission
rate. Such a document shall be published not later than nine months
after August 7, 1977, and shall be revised at least every two years
thereafter.
(July 14, 1955, ch. 360, title I, 178, as added Aug. 7, 1977, Pub.
L. 95-95, title I, 129(b), 91 Stat. 750.)
42 USC 7509. Sanctions and consequences of failure to attain
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State failure
For any implementation plan or plan revision required under this part
(or required in response to a finding of substantial inadequacy as
described in section 7410(k)(5) of this title), if the Administrator --
(1) finds that a State has failed, for an area designated
nonattainment under section 7407(d) of this title, to submit a plan, or
to submit 1 or more of the elements (as determined by the Administrator)
required by the provisions of this chapter applicable to such an area,
or has failed to make a submission for such an area that satisfies the
minimum criteria established in relation to any such element under
section 7410(k) of this title,
(2) disapproves a submission under section 7410(k) of this title, for
an area designated nonattainment under section 7407 of this title, based
on the submission's failure to meet one or more of the elements required
by the provisions of this chapter applicable to such an area,
(3)(A) determines that a State has failed to make any submission as
may be required under this chapter, other than one described under
paragraph (1) or (2), including an adequate maintenance plan, or has
failed to make any submission, as may be required under this chapter,
other than one described under paragraph (1) or (2), that satisfies the
minimum criteria established in relation to such submission under
section 7410(k)(1)(A) of this title, or
(B) disapproves in whole or in part a submission described under
subparagraph (A), or
(4) finds that any requirement of an approved plan (or approved part
of a plan) is not being implemented,
unless such deficiency has been corrected within 18 months after the
finding, disapproval, or determination referred to in paragraphs (1),
(2), (3), and (4), one of the sanctions referred to in subsection (b) of
this section shall apply, as selected by the Administrator, until the
Administrator determines that the State has come into compliance, except
that if the Administrator finds a lack of good faith, sanctions under
both paragraph (1) and paragraph (2) of subsection (b) of this section
shall apply until the Administrator determines that the State has come
into compliance. If the Administrator has selected one of such
sanctions and the deficiency has not been corrected within 6 months
thereafter, sanctions under both paragraph (1) and paragraph (2) of
subsection (b) of this section shall apply until the Administrator
determines that the State has come into compliance. In addition to any
other sanction applicable as provided in this section, the Administrator
may withhold all or part of the grants for support of air pollution
planning and control programs that the Administrator may award under
section 7405 of this title.
(b) Sanctions
The sanctions available to the Administrator as provided in
subsection (a) of this section are as follows:
(1) Highway sanctions
(A) The Administrator may impose a prohibition, applicable to a
nonattainment area, on the approval by the Secretary of Transportation
of any projects or the awarding by the Secretary of any grants, under
title 23 other than projects or grants for safety where the Secretary
determines, based on accident or other appropriate data submitted by the
State, that the principal purpose of the project is an improvement in
safety to resolve a demonstrated safety problem and likely will result
in a significant reduction in, or avoidance of, accidents. Such
prohibition shall become effective upon the selection by the
Administrator of this sanction.
(B) In addition to safety, projects or grants that may be approved by
the Secretary, notwithstanding the prohibition in subparagraph (A), are
the following --
(i) capital programs for public transit;
(ii) construction or restriction of certain roads or lanes solely for
the use of passenger buses or high occupancy vehicles;
(iii) planning for requirements for employers to reduce employee
work-trip-related vehicle emissions;
(iv) highway ramp metering, traffic signalization, and related
programs that improve traffic flow and achieve a net emission reduction;
(v) fringe and transportation corridor parking facilities serving
multiple occupancy vehicle programs or transit operations;
(vi) programs to limit or restrict vehicle use in downtown areas or
other areas of emission concentration particularly during periods of
peak use, through road use charges, tolls, parking surcharges, or other
pricing mechanisms, vehicle restricted zones or periods, or vehicle
registration programs;
(vii) programs for breakdown and accident scene management,
nonrecurring congestion, and vehicle information systems, to reduce
congestion and emissions; and
(viii) such other transportation-related programs as the
Administrator, in consultation with the Secretary of Transportation,
finds would improve air quality and would not encourage single occupancy
vehicle capacity.
In considering such measures, the State should seek to ensure
adequate access to downtown, other commercial, and residential areas,
and avoid increasing or relocating emissions and congestion rather than
reducing them.
(2) Offsets
In applying the emissions offset requirements of section 7503 of this
title to new or modified sources or emissions units for which a permit
is required under this part, the ratio of emission reductions to
increased emissions shall be at least 2 to 1.
(c) Notice of failure to attain
(1) As expeditiously as practicable after the applicable attainment
date for any nonattainment area, but not later than 6 months after such
date, the Administrator shall determine, based on the area's air quality
as of the attainment date, whether the area attained the standard by
that date.
(2) Upon making the determination under paragraph (1), the
Administrator shall publish a notice in the Federal Register containing
such determination and identifying each area that the Administrator has
determined to have failed to attain. The Administrator may revise or
supplement such determination at any time based on more complete
information or analysis concerning the area's air quality as of the
attainment date.
(d) Consequences for failure to attain
(1) Within 1 year after the Administrator publishes the notice under
subsection (c)(2) of this section (relating to notice of failure to
attain), each State containing a nonattainment area shall submit a
revision to the applicable implementation plan meeting the requirements
of paragraph (2) of this subsection.
(2) The revision required under paragraph (1) shall meet the
requirements of section 7410 of this title and section 7502 of this
title. In addition, the revision shall include such additional measures
as the Administrator may reasonably prescribe, including all measures
that can be feasibly implemented in the area in light of technological
achievability, costs, and any nonair quality and other air
quality-related health and environmental impacts.
(3) The attainment date applicable to the revision required under
paragraph (1) shall be the same as provided in the provisions of section
7502(a)(2) of this title, except that in applying such provisions the
phrase ''from the date of the notice under section 7509(c)(2) of this
title'' shall be substituted for the phrase ''from the date such area
was designated nonattainment under section 7407(d) of this title'' and
for the phrase ''from the date of designation as nonattainment''.
(July 14, 1955, ch. 360, title I, 179, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 102(g), 104 Stat. 2420.)
42 USC 7509a. International border areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Implementation plans and revisions
Notwithstanding any other provision of law, an implementation plan or
plan revision required under this chapter shall be approved by the
Administrator if --
(1) such plan or revision meets all the requirements applicable to it
under the /1/ chapter other than a requirement that such plan or
revision demonstrate attainment and maintenance of the relevant national
ambient air quality standards by the attainment date specified under the
applicable provision of this chapter, or in a regulation promulgated
under such provision, and
(2) the submitting State establishes to the satisfaction of the
Administrator that the implementation plan of such State would be
adequate to attain and maintain the relevant national ambient air
quality standards by the attainment date specified under the applicable
provision of this chapter, or in a regulation promulgated under such
provision, but for emissions emanating from outside of the United
States.
(b) Attainment of ozone levels
Notwithstanding any other provision of law, any State that
establishes to the satisfaction of the Administrator that, with respect
to an ozone nonattainment area in such State, such State would have
attained the national ambient air quality standard for ozone by the
applicable attainment date, but for emissions emanating from outside of
the United States, shall not be subject to the provisions of section
7511(a)(2) or (5) of this title or section 7511d of this title.
(c) Attainment of carbon monoxide levels
Notwithstanding any other provision of law, any State that
establishes to the satisfaction of the Administrator, with respect to a
carbon monoxide nonattainment area in such State, that such State has
attained the national ambient air quality standard for carbon monoxide
by the applicable attainment date, but for emissions emanating from
outside of the United States, shall not be subject to the provisions of
section 7512(b)(2) or (9) /2/ of this title.
(d) Attainment of PM-10 levels
Notwithstanding any other provision of law, any State that
establishes to the satisfaction of the Administrator that, with respect
to a PM-10 nonattainment area in such State, such State would have
attained the national ambient air quality standard for carbon monoxide
by the applicable attainment date, but for emissions emanating from
outside the United States, shall not be subject to the provisions of
section 7513(b)(2) of this title.
(July 14, 1955, ch. 360, title I, 179B, as added Nov. 15, 1990, Pub.
L. 101-549, title VIII, 818, 104 Stat. 2697.)
Section 815 of Pub. L. 101-549 provided that:
''(a) In General. -- The Administrator of the Environmental
Protection Agency (hereinafter referred to as the 'Administrator') is
authorized, in cooperation with the Department of State and the affected
States, to negotiate with representatives of Mexico to authorize a
program to monitor and improve air quality in regions along the border
between the United States and Mexico. The program established under
this section shall not extend beyond July 1, 1995.
''(b) Monitoring and Remediation. --
''(1) Monitoring. -- The monitoring component of the program
conducted under this section shall identify and determine sources of
pollutants for which national ambient air quality standards (hereinafter
referred to as 'NAAQS') and other air quality goals have been
established in regions along the border between the United States and
Mexico. Any such monitoring component of the program shall include, but
not be limited to, the collection of meteorological data, the
measurement of air quality, the compilation of an emissions inventory,
and shall be sufficient to the extent necessary to successfully support
the use of a state-of-the-art mathematical air modeling analysis. Any
such monitoring component of the program shall collect and produce data
projecting the level of emission reductions necessary in both Mexico and
the United States to bring about attainment of both primary and
secondary NAAQS, and other air quality goals, in regions along the
border in the United States. Any such monitoring component of the
program shall include to the extent possible, data from monitoring
programs undertaken by other parties.
''(2) Remediation. -- The Administrator is authorized to negotiate
with appropriate representatives of Mexico to develop joint remediation
measures to reduce the level of airborne pollutants to achieve and
maintain primary and secondary NAAQS, and other air quality goals, in
regions along the border between the United States and Mexico. Such
joint remediation measures may include, but not be limited to measures
included in the Environmental Protection Agency's Control Techniques and
Control Technology documents. Any such remediation program shall also
identify those control measures implementation of which in Mexico would
be expedited by the use of material and financial assistance of the
United States.
''(c) Annual Reports. -- The Administrator shall, each year the
program authorized in this section is in operation, report to Congress
on the progress of the program in bringing nonattainment areas along the
border of the United States into attainment with primary and secondary
NAAQS. The report issued by the Administrator under this paragraph
shall include recommendations on funding mechanisms to assist in
implementation of monitoring and remediation efforts.
''(d) Funding and Personnel. -- The Administrator may, where
appropriate, make available, subject to the appropriations, such funds,
personnel, and equipment as may be necessary to implement the provisions
of this section. In those cases where direct financial assistance of
the United States is provided to implement monitoring and remediation
programs in Mexico, the Administrator shall develop grant agreements
with appropriate representatives of Mexico to assure the accuracy and
completeness of monitoring data and the performance of remediation
measures which are financed by the United States. With respect to any
control measures within Mexico funded by the United States, the
Administrator shall, to the maximum extent practicable, utilize
resources of Mexico where such utilization would reduce costs to the
United States. Such funding agreements shall include authorization for
the Administrator to --
''(1) review and agree to plans for monitoring and remediation;
''(2) inspect premises, equipment and records to insure compliance
with the agreements established under and the purposes set forth in this
section; and
''(3) where necessary, develop grant agreements with affected States
to carry out the provisions of this section.''
/1/ So in original. Probably should be ''this''.
/2/ So in original. Section 7512(b) of this title does not contain a
par. (9).
42 USC subpart 2 -- additional provisions for ozone nonattainment areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7511. Classifications and attainment dates
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Classification and attainment dates for 1989 nonattainment 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 calculated
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.
(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 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
(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 1 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 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 reclassification, 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 fails 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 7511a(c)(2)(B) and (C) of this title (relating
to reasonable further progress demonstration and NOx 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 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 7511a(g)
of this title, the new source review requirements applicable under this
subpart in Extreme Areas shall apply in the area and the term /1/
''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.
(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.
(July 14, 1955, ch. 360, title I, 181, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2423.)
Section 819 of Pub. L. 101-549 provided that: ''Notwithstanding any
other provision of law, the amendments to the Clean Air Act made by
section 103 of the Clean Air Act Amendments of 1990 (enacting sections
7511 to 7511f of this title) (relating to additional provisions for
ozone nonattainment areas), by section 104 of such amendments (enacting
sections 7512 and 7512a of this title) (relating to additional
provisions for carbon monoxide nonattainment areas), by section 105 of
such amendments (enacting sections 7513 to 7513b of this title and
amending section 7476 of this title) (relating to additional provisions
for PM-10 nonattainment areas), and by section 106 of such amendments
(enacting sections 7514 and 7514a of this title) (relating to additional
provisions for areas designated as nonattainment for sulfur oxides,
nitrogen dioxide, and lead) shall not apply with respect to the
production of and equipment used in the exploration, production,
development, storage or processing of --
''(1) oil from a stripper well property, within the meaning of the
June 1979 energy regulations (within the meaning of section 4996(b)(7)
of the Internal Revenue Code of 1986 (26 U.S.C. 4996(b)(7)), as in
effect before the repeal of such section); and
''(2) stripper well natural gas, as defined in section 108(b) of the
Natural Gas Policy Act of 1978 (15 U.S.C. 3318(b)).(,)
except to the extent that provisions of such amendments cover areas
designated as Serious pursuant to part D of title I of the Clean Air Act
(this part) and having a population of 350,000 or more, or areas
designated as Severe or Extreme pursuant to such part D.''
/1/ So in original. Probably should be ''terms''.
42 USC 7511a. Plan submissions and requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(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
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 under section 7502(b) of this title (as in effect immediately
before November 15, 1990), as interpreted in guidance issued 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)(11)(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, 1st Session, 281-291 (1977) as interpreted in guidance of the
Administrator issued pursuant to section 7502(b)(11)(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, 1990, the Administrator
shall review, revise, update, and republish in the Federal Register the
guidance for the States for motor vehicle inspection and maintenance
programs required by this chapter, taking into consideration the
Administrator's investigations and audits of such program. The guidance
shall, at a minimum, cover the frequency 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 providing 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 accordance 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
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 statement 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/ (1) or (3)(A), provides an inventory
of emissions from such class or category of sources, based on the use of
the emission factors established 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.
(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 submissions described under
subsection (a) of this section (relating to Marginal Areas), and shall
also submit the revisions to the applicable implementation plan
described under this subsection.
(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 Administrator that --
(I) new source review provisions are applicable 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 technology is required for all
existing major sources (as defined in subclause (I)); 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 NOx 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 (a)(2)(A) of this section
(concerning corrections to implementation plans prescribed under
guidance by the Administrator).
(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
(A) General rule
Not later than 2 years after November 15, 1990, the State shall
submit a revision to the applicable implementation plan to require all
owners or operators of gasoline dispensing systems to install and
operate, by the date prescribed under subparagraph (B), a system for
gasoline vapor recovery of emissions from the fueling of motor vehicles.
The Administrator shall issue guidance as appropriate as to the
effectiveness of such system. This subparagraph shall apply only to
facilities which sell more than 10,000 gallons of gasoline per month
(50,000 gallons per month in the case of an independent small business
marketer of gasoline as defined in section 7625-1 /2/ of this title).
(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
(iii) 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 (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 section
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 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
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 Administrator, 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 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) NOx 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
guidance concerning the conditions under which NOx control may be
substituted for VOC control or may be combined with VOC control in order
to maximize the reduction in ozone air 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 NOx 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 maintenance 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 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 demonstrated to the Administrator to be more effective than
the applicable vehicle registration program in assuring that
noncomplying 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.
(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 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 Administrator 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) /3/ 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 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 Administrator
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 applicability 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
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 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 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
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 Serious 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
subsection /4/ (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 downtown, other
commercial, and residential areas and should avoid measures that
increase or relocate emissions and congestion rather than reduce them.
(B) Within 2 years after November 15, 1990, the State shall submit a
revision requiring employers in such area to implement programs to
reduce work-related vehicle trips and miles traveled by employees. Such
revision shall be developed in accordance with guidance issued by the
Administrator pursuant to section 7408(f) of this title and shall, at a
minimum, require that each employer of 100 or more persons in such area
increase average passenger occupancy per vehicle in commuting trips
between home and the workplace during peak travel periods by not less
than 25 percent above the average vehicle occupancy for all such trips
in the area at the time the revision is submitted. 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. The revision shall
provide that each employer subject to a vehicle occupancy requirement
shall submit a compliance plan within 2 years after the date the
revision is submitted which shall convincingly demonstrate compliance
with the requirements of this paragraph not later than 4 years after
such date.
(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 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 subsection (c)(2)(B) of this section
(relating to reductions of less than 3 percent), the provisions of
paragaphs /5/ (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 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 7411(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
considered 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
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 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
provisions 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 into this
subsection, shall refer to the attainment date for Extreme Areas.
(f) NOx 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 areas not within an ozone transport region under
section 7511c of this title, if the Administrator determines (when the
Administrator approves a plan or plan revision) that additional
reductions of oxides of 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.
(2)(A) If the Administrator determines that excess reductions in
emissions of NOx 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 reductions in emissions of
NOx 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 reductions in
emissions of NOx are, for --
(i) nonattainment areas not within an ozone transport region under
section 7511c 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 7511c of
this title. The Administrator shall grant or deny such petition within
6 months after its filing with the Administrator.
(g) Milestones
(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 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
(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 reducing emissions from permitted stationary sources, area
sources, and mobile sources. The guidelines shall require that any
revenues generated by the plan provisions adopted pursuant 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 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 implement 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).
(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, NOx) 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, according 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
(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
subsection.
(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 implementation
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.
(July 14, 1955, ch. 360, title I, 182, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2426.)
The Natural Gas Policy Act of 1978, referred to in subsec. (e)(3),
is Pub. L. 95-621, Nov. 9, 1978, 92 Stat. 3350, as amended. Title
III of the Act is classified generally to subchapter III ( 3361 et seq.)
of chapter 60 of Title 15, Commerce and Trade. For complete
classification of this Act to the Code, see Short Title note set out
under section 3301 of Title 15 and Tables.
/1/ So in original. Probably should be ''subparagraph''.
/2/ So in original. Probably should be section ''7625''.
/3/ So in original. No subpar. (B) has been enacted.
/4/ So in original. Probably should be ''subsections''.
/5/ So in original. Probably should be ''paragraphs''.
42 USC 7511b. Federal ozone measures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Control techniques guidelines for VOC sources
Within 3 years after November 15, 1990, the Administrator shall issue
control techniques guidelines, in 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 Administrator 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 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 specifications 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 determines 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.
(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, processes, methods, systems or
techniques, including chemical 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 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.
(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 categories 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
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 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 7411(e) of this title.
(7) State administration
Each State may develop and submit to the Administrator a 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.
(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 national 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 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 subdivisions.
(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 /1/ 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 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 vessels, 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 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 7411(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.
(July 14, 1955, ch. 360, title I, 183, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2443.)
The Solid Waste Disposal Act, referred to in subsec. (b)(2), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, 2, Oct. 21, 1976, 90 Stat. 2795.
Subtitle C of the Act is classified generally to subchapter III ( 6921
et seq.) of chapter 82 of this title. For complete classification of
this Act to the Code, see Short Title note set out under section 6901 of
this title and Tables.
/1/ So in original. Probably should be capitalized.
42 USC 7511c. Control of interstate ozone air pollution
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(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 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
7511a(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 measures capable of achieving
emission reductions comparable to those achievable through vehicle
refueling controls contained in section 7511a(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 1 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
/1/ (or their designees), the Commission /1/ 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 measures 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 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
partially 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 recommendations,
the Administrator shall specify --
(i) why any disapproved additional control 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 /2/ 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
determinations.
(July 14, 1955, ch. 360, title I, 184, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2448.)
/1/ So in original. Probably should not be capitalized.
/2/ So in original. Probably should be ''this''.
42 USC 7511d. Enforcement for Severe and Extreme ozone nonattainment
areas for failure to attain
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General rule
Each implementation plan revision required under section 7511a(d) and
(e) of this title (relating to the attainment plan for Severe and
Extreme ozone nonattainment areas) shall provide 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 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
calendar 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 significantly 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
7661a(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 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.
(July 14, 1955, ch. 360, title I, 185, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2450.)
42 USC 7511e. Transitional areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
If an area designated as an ozone nonattainment area as of November
15, 1990, has not violated the national primary 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.
(July 14, 1955, ch. 360, title I, 185A, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2451.)
42 USC 7511f. NOx and VOC study
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
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 NOx and VOC emission reductions, the extent to which NOx
reductions may contribute (or be counterproductive) to achievement of
attainment in different nonattainment areas, the sensitivity of ozone to
the control of NOx, the availability and extent of controls for NOx, 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 1 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 available
information and studies, as well as develop additional information, in
conducting the study required by this section.
(July 14, 1955, ch. 360, title I, 185B, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 103, 104 Stat. 2452.)
42 USC subpart 3 -- additional provisions for carbon monoxide
nonattainment areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7512. Classification and attainment dates
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Classification by operation of law and attainment dates for
nonattainment areas
(1) Each area designated nonattainment for carbon monoxide 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 Moderate Area or a
Serious Area based on the design value for the area. The design value
shall be calculated 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 carbon monoxide shall be as expeditiously as practicable but
not later than the date provided in table 1:
(2) At the time of publication of the notice required under section
7407 of this title (designating carbon monoxide nonattainment areas),
the Administrator shall publish a notice announcing the classification
of each such carbon monoxide nonattainment area. The provisions of
section 7502(a)(1)(B) of this title (relating to lack of
notice-and-comment and judicial review) shall apply with respect to such
classification.
(3) 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 November 15, 1990, by the procedure
required under paragraph (2), adjust the classification of the area. In
making such adjustment, the Administrator may consider the number of
exceedances of the national primary ambient air quality standard for
carbon monoxide in the area, the level of pollution transport between
the area and the other affected areas, and the mix of sources and air
pollutants in the area. The Administrator may make the same adjustment
for purposes of paragraphs (2), (3), (6), and (7) of section 7512a(a) of
this title.
(4) Upon application by any State, the Administrator may extend for 1
additional year (hereinafter in this subpart referred to as the
''Extension Year'') the date specified in table 1 of subsection (a) of
this section 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 one exceedance of the national ambient air quality
standard level for carbon monoxide 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
(1) New designations to nonattainment
Any area that is designated attainment or unclassifiable for carbon
monoxide under section 7407(d)(4) of this title, and that is
subsequently redesignated to nonattainment for carbon monoxide 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 subsections (a)(1) and (a)(4) of this section. Upon its
classification, the area shall be subject to the same requirements under
section 7410 of this title, subpart 1 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)(2) 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.
(2) Reclassification of Moderate Areas upon failure to attain
(A) General rule
Within 6 months following the applicable attainment date for a carbon
monoxide nonattainment area, the Administrator shall determine, based on
the area's design value as of the attainment date, whether the area has
attained the standard by that date. Any Moderate 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)(1) of this section as a Serious Area.
(B) Publication of notice
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 reclassification, if any, described
under subparagraph (A).
(c) References to terms
Any reference in this subpart to a ''Moderate Area'' or a ''Serious
Area'' shall be considered a reference to a Moderate Area or a Serious
Area, respectively, as classified under this section.
(July 14, 1955, ch. 360, title I, 186, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 104, 104 Stat. 2452.)
/1/ So in original. Probably should be ''TABLE 1''.
42 USC 7512a. Plan submissions and requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Moderate Areas
Each State in which all or part of a Moderate Area is located shall,
with respect to the Moderate Area (or portion thereof, to the extent
specified in guidance of the Administrator issued before November 15,
1990), submit to the Administrator the State implementation plan
revisions (including the plan items) described under this subsection,
within such periods as are prescribed under this subsection, except to
the extent the State has made such submissions as of November 15, 1990:
(1) Inventory
No later than 2 years from 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)(A) Vehicle miles traveled
No later than 2 years after November 15, 1990, for areas with a
design value above 12.7 ppm at the time of classification, the plan
revision shall contain a forecast of vehicle miles traveled in the
nonattainment area concerned for each year before the year in which the
plan projects the national ambient air quality standard for carbon
monoxide to be attained in the area. The forecast shall be based on
guidance which shall be published by the Administrator, in consultation
with the Secretary of Transportation, within 6 months after November 15,
1990. The plan revision shall provide for annual updates of the
forecasts to be submitted to the Administrator together with annual
reports regarding the extent to which such forecasts proved to be
accurate. Such annual reports shall contain estimates of actual vehicle
miles traveled in each year for which a forecast was required.
(B) Special rule for Denver
Within 2 years after November 15, 1990, in the case of Denver, the
State shall submit a revision that includes the transportation control
measures as required in section 7511a(d)(1)(A) of this title except that
such revision shall be for the purpose of reducing CO emissions rather
than volatile organic compound emissions. If the State fails to include
any such measure, the implementation plan shall contain an explanation
of why such measure was not adopted and what emissions reduction measure
was adopted to provide a comparable reduction in emissions, or reasons
why such reduction is not necessary to attain the national primary
ambient air quality standard for carbon monoxide.
(3) Contingency provisions
No later than 2 years after November 15, 1990, for areas with a
design value above 12.7 ppm at the time of classification, the plan
revision shall provide for the implementation of specific measures to be
undertaken if any estimate of vehicle miles traveled in the area which
is submitted in an annual report under paragraph (2) exceeds the number
predicted in the most recent prior forecast or if the area fails to
attain the national primary ambient air quality standard for carbon
monoxide by the primary standard attainment date. Such measures shall
be included in the plan revision as contingency measures to take effect
without further action by the State or the Administrator if the prior
forecast has been exceeded by an updated forecast or if the national
standard is not attained by such deadline.
(4) Savings clause for vehicle inspection and maintenance provisions
of the State implementation plan
Immediately after November 15, 1990, for any Moderate Area (or,
within the Administrator's discretion, portion thereof), the plan for
which is of the type described in section 7511a(a)(2)(B) of this title
any provisions necessary to ensure that the applicable implementation
plan includes the vehicle inspection and maintenance program described
in section 7511a(a)(2)(B) of this title.
(5) Periodic inventory
No later than September 30, 1995, and no later than the end of each 3
year period thereafter, until the area is redesignated to attainment, a
revised inventory meeting the requirements of subsection (a)(1) of this
section.
(6) Enhanced vehicle inspection and maintenance
No later than 2 years after November 15, 1990, in the case of
Moderate Areas with a design value greater than 12.7 ppm at the time of
classification, a revision that includes provisions for an enhanced
vehicle inspection and maintenance program as required in section
7511a(c)(3) of this title (concerning serious ozone nonattainment
areas), except that such program shall be for the purpose of reducing
carbon monoxide rather than hydrocarbon emissions.
(7) Attainment demonstration and specific annual emission reductions
In the case of Moderate Areas with a design value greater than 12.7
ppm at the time of classification, no later than 2 years after November
15, 1990, a revision to provide, and a demonstration that the plan as
revised will provide, for attainment of the carbon monoxide NAAQS by the
applicable attainment date and provisions for such specific annual
emission reductions as are necessary to attain the standard by that
date.
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. In the case of Moderate Areas
with a design value of 12.7 ppm or lower at the time of classification,
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 carbon monoxide
standard by the applicable attainment date.
(b) Serious Areas
(1) In general
Each State in which all or part of a Serious Area is located shall,
with respect to the Serious Area, make the submissions (other than those
required under subsection (a)(1)(B) /1/ of this section) applicable
under subsection (a) of this section to Moderate Areas with a design
value of 12.7 ppm or greater at the time of classification, and shall
also submit the revision and other items described under this
subsection.
(2) Vehicle miles traveled
Within 2 years after November 15, 1990, the State shall submit a
revision that includes the transportation control measures as required
in section 7511a(d)(1) of this title except that such revision shall be
for the purpose of reducing CO emissions rather than volatile organic
compound emissions. In the case of any such area (other than an area in
New York State) which is a covered area (as defined in section
7586(a)(2)(B) of this title) for purposes of the Clean Fuel Fleet
program under part C of subchapter II of this chapter, if the State
fails to include any such measure, the implementation plan shall contain
an explanation of why such measure was not adopted and what emissions
reduction measure was adopted to provide a comparable reduction in
emissions, or reasons why such reduction is not necessary to attain the
national primary ambient air quality standard for carbon monoxide.
(3) Oxygenated gasoline
(A) Within 2 years after November 15, 1990, the State shall submit a
revision to require that gasoline sold, supplied, offered for sale or
supply, dispensed, transported or introduced into commerce in the larger
of --
(i) the Consolidated Metropolitan Statistical Area (as defined by the
United States Office of Management and Budget) (CMSA) in which the area
is located, or
(ii) if the area is not located in a CMSA, the Metropolitan
Statistical Area (as defined by the United States Office of Management
and Budget) in which the area is located,
be blended, during the portion of the year in which the area is prone
to high ambient concentrations of carbon monoxide (as determined by the
Administrator), with fuels containing such level of oxygen as is
necessary, in combination with other measures, to provide for attainment
of the carbon monoxide national ambient air quality standard by the
applicable attainment date and maintenance of the national ambient air
quality standard thereafter in the area. The revision shall provide
that such requirement shall take effect no later than October 1, 1993,
and shall include a program for implementation and enforcement of the
requirement consistent with guidance to be issued by the Administrator.
(B) Notwithstanding subparagraph (A), the revision described in this
paragraph shall not be required for an area if the State demonstrates to
the satisfaction of the Administrator that the revision is not necessary
to provide for attainment of the carbon monoxide national ambient air
quality standard by the applicable attainment date and maintenance of
the national ambient air quality standard thereafter in the area.
(c) Areas with significant stationary source emissions of CO
(1) Serious Areas
In the case of Serious Areas in which stationary sources contribute
significantly to carbon monoxide levels (as determined under rules
issued by the Administrator), the State shall submit a plan revision
within 2 years after November 15, 1990, which provides that the term
''major stationary source'' includes (in addition to the sources
described in section 7602 of this title) any stationary source which
emits, or has the potential to emit, 50 tons per year or more of carbon
monoxide.
(2) Waivers for certain areas
The Administrator may, on a case-by-case basis, waive any
requirements that pertain to transportation controls, inspection and
maintenance, or oxygenated fuels where the Administrator determines by
rule that mobile sources of carbon monoxide do not contribute
significantly to carbon monoxide levels in the area.
(3) Guidelines
Within 6 months after November 15, 1990, the Administrator shall
issue guidelines for and rules determining whether stationary sources
contribute significantly to carbon monoxide levels in an area.
(d) CO milestone
(1) Milestone demonstration
By March 31, 1996, each State in which all or part of a Serious Area
is located shall submit to the Administrator a demonstration that the
area has achieved a reduction in emissions of CO equivalent to the total
of the specific annual emission reductions required by December 31,
1995. Such reductions shall be referred to in this subsection as the
milestone.
(2) Adequacy of demonstration
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. 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) Failure to meet emission reduction milestone
If a State fails to submit a demonstration under paragraph (1) within
the required period, or if the Administrator notifies the State that the
State has not met the milestone, the State shall, within 9 months after
such a failure or notification, submit a plan revision to implement an
economic incentive and transportation control program as described in
section 7511a(g)(4) of this title. Such revision shall be sufficient to
achieve the specific annual reductions in carbon monoxide emissions set
forth in the plan by the attainment date.
(e) Multi-State CO nonattainment areas
(1) Coordination among States
Each State in which there is located a portion of a single
nonattainment area for carbon monoxide which covers more than one State
(''multi-State nonattainment area'') shall take all reasonable steps to
coordinate, substantively and procedurally, the revisions and
implementation of State implementation plans applicable to the
nonattainment area concerned. 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 nonattainment area is located if
the plan revision for that State fails to comply with the requirements
of this subsection.
(2) Failure to demonstrate attainment
If any State in which there is located a portion of a multi-State
nonattainment area fails to provide a demonstration of attainment of the
national ambient air quality standard for carbon monoxide in that
portion within the period required under this part 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 implementation of all measures required under this section
(relating to plan submissions for carbon monoxide nonattainment areas).
If the Administrator makes such finding, in the portion of the
nonattainment area within the State submitting such petition, no
sanction shall be imposed under section 7509 of this title or under any
other provision of this chapter, by reason of the failure to make such
demonstration.
(f) Reclassified areas
Each State containing a carbon monoxide nonattainment area
reclassified under section 7512(b)(2) of this title shall meet the
requirements of subsection (b) of this section, as may be applicable to
the area as reclassified, according to the schedules prescribed in
connection with such requirements, except that the Administrator may
adjust any applicable deadlines (other than the attainment date) where
such deadlines are shown to be infeasible.
(g) Failure of Serious Area to attain standard
If the Administrator determines under section 7512(b)(2) of this
title that the national primary ambient air quality standard for carbon
monoxide has not been attained in a Serious Area by the applicable
attainment date, the State shall submit a plan revision for the area
within 9 months after the date of such determination. The plan revision
shall provide that a program of incentives and requirements as described
in section 7511a(g)(4) of this title shall be applicable in the area,
and such program, in combination with other elements of the revised
plan, shall be adequate to reduce the total tonnage of emissions of
carbon monoxide in the area by at least 5 percent per year in each year
after approval of the plan revision and before attainment of the
national primary ambient air quality standard for carbon monoxide.
(July 14, 1955, ch. 360, title I, 187, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 104, 104 Stat. 2454.)
/1/ So in original. Subsec. (a)(1) of this section does not contain
a subpar. (B).
42 USC subpart 4 -- additional provisions for particulate matter
nonattainment areas
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7513. Classifications and attainment dates
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Initial classifications
Every area designated nonattainment for PM-10 pursuant to section
7407(d) of this title shall be classified at the time of such
designation, by operation of law, as a moderate PM-10 nonattainment area
(also referred to in this subpart as a ''Moderate Area'') at the time of
such designation. At the time of publication of the notice under
section 7407(d)(4) of this title (relating to area designations) for
each PM-10 nonattainment area, the Administrator shall publish a notice
announcing the classification of such area. The provisions of section
7502(a)(1)(B) of this title (relating to lack of notice-and-comment and
judicial review) shall apply with respect to such classification.
(b) Reclassification as Serious
(1) Reclassification before attainment date
The Administrator may reclassify as a Serious PM-10 nonattainment
area (identified in this subpart also as a ''Serious Area'') any area
that the Administrator determines cannot practicably attain the national
ambient air quality standard for PM-10 by the attainment date (as
prescribed in subsection (c) of this section) for Moderate Areas. The
Administrator shall reclassify appropriate areas as Serious by the
following dates:
(A) For areas designated nonattainment for PM-10 under section
7407(d)(4) of this title, the Administrator shall propose to reclassify
appropriate areas by June 30, 1991, and take final action by December
31, 1991.
(B) For areas subsequently designated nonattainment, the
Administrator shall reclassify appropriate areas within 18 months after
the required date for the State's submission of a SIP for the Moderate
Area.
(2) Reclassification upon failure to attain
Within 6 months following the applicable attainment date for a PM-10
nonattainment area, the Administrator shall determine whether the area
attained the standard by that date. If the Administrator finds that any
Moderate Area is not in attainment after the applicable attainment date
--
(A) the area shall be reclassified by operation of law as a Serious
Area; and
(B) the Administrator shall publish a notice in the Federal Register
no later than 6 months following the attainment date, identifying the
area as having failed to attain and identifying the reclassification
described under subparagraph (A).
(c) Attainment dates
Except as provided under subsection (d) of this section, the
attainment dates for PM-10 nonattainment areas shall be as follows:
(1) Moderate Areas
For a Moderate Area, the attainment date shall be as expeditiously as
practicable but no later than the end of the sixth calendar year after
the area's designation as nonattainment, except that, for areas
designated nonattainment for PM-10 under section 7407(d)(4) of this
title, the attainment date shall not extend beyond December 31, 1994.
(2) Serious Areas
For a Serious Area, the attainment date shall be as expeditiously as
practicable but no later than the end of the tenth calendar year
beginning after the area's designation as nonattainment, except that,
for areas designated nonattainment for PM-10 under section 7407(d)(4) of
this title, the date shall not extend beyond December 31, 2001.
(d) Extension of attainment date for Moderate Areas
Upon application by any State, the Administrator may extend for 1
additional year (hereinafter referred to as the ''Extension Year'') the
date specified in paragraph /1/ (c)(1) if --
(1) the State has complied with all requirements and commitments
pertaining to the area in the applicable implementation plan; and
(2) no more than one exceedance of the 24-hour national ambient air
quality standard level for PM-10 has occurred in the area in the year
preceding the Extension Year, and the annual mean concentration of PM-10
in the area for such year is less than or equal to the standard level.
No more than 2 one-year extensions may be issued under the subsection
for a single nonattainment area.
(e) Extension of attainment date for Serious Areas
Upon application by any State, the Administrator may extend the
attainment date for a Serious Area beyond the date specified under
subsection (c) of this section, if attainment by the date established
under subsection (c) of this section would be impracticable, the State
has complied with all requirements and commitments pertaining to that
area in the implementation plan, and the State demonstrates to the
satisfaction of the Administrator that the plan for that area includes
the most stringent measures that are included in the implementation plan
of any State or are achieved in practice in any State, and can feasibly
be implemented in the area. At the time of such application, the State
must submit a revision to the implementation plan that includes a
demonstration of attainment by the most expeditious alternative date
practicable. In determining whether to grant an extension, and the
appropriate length of time for any such extension, the Administrator may
consider the nature and extent of nonattainment, the types and numbers
of sources or other emitting activities in the area (including the
influence of uncontrollable natural sources and transboundary emissions
from foreign countries), the population exposed to concentrations in
excess of the standard, the presence and concentration of potentially
toxic substances in the mix of particulate emissions in the area, and
the technological and economic feasibility of various control measures.
The Administrator may not approve an extension until the State submits
an attainment demonstration for the area. The Administrator may grant
at most one such extension for an area, of no more than 5 years.
(f) Waivers for certain areas
The Administrator may, on a case-by-case basis, waive any requirement
applicable to any Serious Area under this subpart where the
Administrator determines that anthropogenic sources of PM-10 do not
contribute significantly to the violation of the PM-10 standard in the
area. The Administrator may also waive a specific date for attainment
of the standard where the Administrator determines that nonanthropogenic
sources of PM-10 contribute significantly to the violation of the PM-10
standard in the area.
(July 14, 1955, ch. 360, title I, 188, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 105(a), 104 Stat. 2458.)
/1/ So in original. Probably should be ''subsection''.
42 USC 7513a. Plan provisions and schedules for plan submissions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Moderate Areas
(1) Plan provisions
Each State in which all or part of a Moderate Area is located shall
submit, according to the applicable schedule under paragraph (2), an
implementation plan that includes each of the following:
(A) For the purpose of meeting the requirements of section 7502(c)(5)
of this title, a permit program providing that permits meeting the
requirements of section 7503 of this title are required for the
construction and operation of new and modified major stationary sources
of PM-10.
(B) Either (i) a demonstration (including air quality modeling) that
the plan will provide for attainment by the applicable attainment date;
or (ii) a demonstration that attainment by such date is impracticable.
(C) Provisions to assure that reasonably available control measures
for the control of PM-10 shall be implemented no later than December 10,
1993, or 4 years after designation in the case of an area classified as
moderate after November 15, 1990.
(2) Schedule for plan submissions
A State shall submit the plan required under subparagraph (1) no
later than the following:
(A) Within 1 year of November 15, 1990, for areas designated
nonattainment under section 7407(d)(4) of this title, except that the
provision required under subparagraph (1)(A) shall be submitted no later
than June 30, 1992.
(B) 18 months after the designation as nonattainment, for those areas
designated nonattainment after the designations prescribed under section
7407(d)(4) of this title.
(b) Serious Areas
(1) Plan provisions
In addition to the provisions submitted to meet the requirements of
paragraph /1/ (a)(1) (relating to Moderate Areas), each State in which
all or part of a Serious Area is located shall submit an implementation
plan for such area that includes each of the following:
(A) A demonstration (including air quality modeling) --
(i) that the plan provides for attainment of the PM-10 national
ambient air quality standard by the applicable attainment date, or
(ii) for any area for which the State is seeking, pursuant to section
7513(e) of this title, an extension of the attainment date beyond the
date set forth in section 7513(c) of this title, that attainment by that
date would be impracticable, and that the plan provides for attainment
by the most expeditious alternative date practicable.
(B) Provisions to assure that the best available control measures for
the control of PM-10 shall be implemented no later than 4 years after
the date the area is classified (or reclassified) as a Serious Area.
(2) Schedule for plan submissions
A State shall submit the demonstration required for an area under
paragraph (1)(A) no later than 4 years after reclassification of the
area to Serious, except that for areas reclassified under section
7513(b)(2) of this title, the State shall submit the attainment
demonstration within 18 months after reclassification to Serious. A
State shall submit the provisions described under paragraph (1)(B) no
later than 18 months after reclassification of the area as a Serious
Area.
(3) Major sources
For any Serious Area, the terms ''major source'' and ''major
stationary source'' include any stationary source or group of stationary
sources located within a contiguous area and under common control that
emits, or has the potential to emit, at least 70 tons per year of PM-10.
(c) Milestones
(1) Plan revisions demonstrating attainment submitted to the
Administrator for approval under this subpart shall contain quantitative
milestones which are to be achieved every 3 years until the area is
redesignated attainment and which demonstrate reasonable further
progress, as defined in section 7501(1) of this title, toward attainment
by the applicable date.
(2) Not later than 90 days after the date on which a milestone
applicable to the area occurs, each State in which all or part of such
area is located shall submit to the Administrator a demonstration that
all measures in the plan approved under this section have been
implemented and that the milestone has been met. A demonstration under
this subsection shall be submitted in such form and manner, and shall
contain such information and analysis, as the Administrator shall
require. The Administrator shall determine whether or not a State's
demonstration under this subsection is adequate within 90 days after the
Administrator's receipt of a demonstration which contains the
information and analysis required by the Administrator.
(3) If a State fails to submit a demonstration under paragraph (2)
with respect to a milestone within the required period or if the
Administrator determines that the area has not met any applicable
milestone, the Administrator shall require the State, within 9 months
after such failure or determination to submit a plan revision that
assures that the State will achieve the next milestone (or attain the
national ambient air quality standard for PM-10, if there is no next
milestone) by the applicable date.
(d) Failure to attain
In the case of a Serious PM-10 nonattainment area in which the PM-10
standard is not attained by the applicable attainment date, the State in
which such area is located shall, after notice and opportunity for
public comment, submit within 12 months after the applicable attainment
date, plan revisions which provide for attainment of the PM-10 air
quality standard and, from the date of such submission until attainment,
for an annual reduction in PM-10 or PM-10 precursor emissions within the
area of not less than 5 percent of the amount of such emissions as
reported in the most recent inventory prepared for such area.
(e) PM-10 precursors
The control requirements applicable under plans in effect under this
part for major stationary sources of PM-10 shall also apply to major
stationary sources of PM-10 precursors, except where the Administrator
determines that such sources do not contribute significantly to PM-10
levels which exceed the standard in the area. The Administrator shall
issue guidelines regarding the application of the preceding sentence.
(July 14, 1955, ch. 360, title I, 189, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 105(a), 104 Stat. 2460.)
/1/ So in original. Probably should be ''subsection''.
42 USC 7513b. Issuance of RACM and BACM guidance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator shall issue, in the same manner and according to
the same procedure as guidance is issued under section 7408(c) of this
title, technical guidance on reasonably available control measures and
best available control measures for urban fugitive dust, and emissions
from residential wood combustion (including curtailments and exemptions
from such curtailments) and prescribed silvicultural and agricultural
burning, no later than 18 months following November 15, 1990. The
Administrator shall also examine other categories of sources
contributing to nonattainment of the PM-10 standard, and determine
whether additional guidance on reasonably available control measures and
best available control measures is needed, and issue any such guidance
no later than 3 years after November 15, 1990. In issuing guidelines
and making determinations under this section, the Administrator (in
consultation with the State) shall take into account emission reductions
achieved, or expected to be achieved, under subchapter IV-A of this
chapter and other provisions of this chapter.
(July 14, 1955, ch. 360, title I, 190, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 105(a), 104 Stat. 2462.)
42 USC subpart 5 -- additional provisions for areas designated
nonattainment for sulfur oxides, nitrogen dioxide, or lead
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7514. Plan submission deadlines
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Submission
Any State containing an area designated or redesignated under section
7407(d) of this title as nonattainment with respect to the national
primary ambient air quality standards for sulfur oxides, nitrogen
dioxide, or lead subsequent to November 15, 1990, shall submit to the
Administrator, within 18 months of the designation, an applicable
implementation plan meeting the requirements of this part.
(b) States lacking fully approved State implementation plans
Any State containing an area designated nonattainment with respect to
national primary ambient air quality standards for sulfur oxides or
nitrogen dioxide under section 7407(d)(1)(C)(i) of this title, but
lacking a fully approved implementation plan complying with the
requirements of this chapter (including this part) as in effect
immediately before November 15, 1990, shall submit to the Administrator,
within 18 months of November 15, 1990, an implementation plan meeting
the requirements of subpart 1 (except as otherwise prescribed by section
7514a of this title).
(July 14, 1955, ch. 360, title I, 191, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 106, 104 Stat. 2463.)
42 USC 7514a. Attainment dates
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plans under section 7514(a)
Implementation plans required under section 7514(a) of this title
shall provide for attainment of the relevant primary standard as
expeditiously as practicable but no later than 5 years from the date of
the nonattainment designation.
(b) Plans under section 7514(b)
Implementation plans required under section 7514(b) of this title
shall provide for attainment of the relevant primary national ambient
air quality standard within 5 years after November 15, 1990.
(c) Inadequate plans
Implementation plans for nonattainment areas for sulfur oxides or
nitrogen dioxide with plans that were approved by the Administrator
before November 15, 1990, but, subsequent to such approval, were found
by the Administrator to be substantially inadequate, shall provide for
attainment of the relevant primary standard within 5 years from the date
of such finding.
(July 14, 1955, ch. 360, title I, 192, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 106, 104 Stat. 2463.)
42 USC subpart 6 -- savings provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7515. General savings clause
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Each regulation, standard, rule, notice, order and guidance
promulgated or issued by the Administrator under this chapter, as in
effect before November 15, 1990, shall remain in effect according to its
terms, except to the extent otherwise provided under this chapter,
inconsistent with any provision of this chapter, or revised by the
Administrator. No control requirement in effect, or required to be
adopted by an order, settlement agreement, or plan in effect before
November 15, 1990, in any area which is a nonattainment area for any air
pollutant may be modified after November 15, 1990, in any manner unless
the modification insures equivalent or greater emission reductions of
such air pollutant.
(July 14, 1955, ch. 360, title I, 193, as added Nov. 15, 1990, Pub.
L. 101-549, title I, 108(l), 104 Stat. 2469.)
42 USC SUBCHAPTER II -- EMISSION STANDARDS FOR MOVING SOURCES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC Part A -- Motor Vehicle Emission and Fuel Standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC 7521. Emission standards for new motor vehicles or new motor
vehicle engines
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Administrator to prescribe by regulation
Except as otherwise provided in subsection (b) of this section --
(1) The Administrator shall by regulation prescribe (and from time to
time revise) in accordance with the provisions of this section,
standards applicable to the emission of any air pollutant from any class
or classes of new motor vehicles or new motor vehicle engines, which in
his judgment cause, or contribute to, air pollution which may reasonably
be anticipated to endanger public health or welfare. Such standards
shall be applicable to such vehicles and engines for their useful life
(as determined under subsection (d) of this section, relating to useful
life of vehicles for purposes of certification), whether such vehicles
and engines are designed as complete systems or incorporate devices to
prevent or control such pollution.
(2) Any regulation prescribed under paragraph (1) of this subsection
(and any revision thereof) shall take effect after such period as the
Administrator finds necessary to permit the development and application
of the requisite technology, giving appropriate consideration to the
cost of compliance within such period.
(3)(A) In general. -- (i) Unless the standard is changed as provided
in subparagraph (B), regulations under paragraph (1) of this subsection
applicable to emissions of hydrocarbons, carbon monoxide, oxides of
nitrogen, and particulate matter from classes or categories of
heavy-duty vehicles or engines manufactured during or after model year
1983 shall contain standards which reflect the greatest degree of
emission reduction achievable through the application of technology
which the Administrator determines will be available for the model year
to which such standards apply, giving appropriate consideration to cost,
energy, and safety factors associated with the application of such
technology.
(ii) In establishing classes or categories of vehicles or engines for
purposes of regulations under this paragraph, the Administrator may base
such classes or categories on gross vehicle weight, horsepower, type of
fuel used, or other appropriate factors.
(B) Revised standards for heavy duty trucks. -- (i) On the basis of
information available to the Administrator concerning the effects of air
pollutants emitted from heavy-duty vehicles or engines and from other
sources of mobile source related pollutants on the public health and
welfare, and taking costs into account, the Administrator may promulgate
regulations under paragraph (1) of this subsection revising any standard
promulgated under, or before the date of, the enactment of the Clean Air
Act Amendments of 1990 (or previously revised under this subparagraph)
and applicable to classes or categories of heavy-duty vehicles or
engines.
(ii) Effective for the model year 1998 and thereafter, the
regulations under paragraph (1) of this subsection applicable to
emissions of oxides of nitrogen (NOx) from gasoline and diesel-fueled
heavy duty trucks shall contain standards which provide that such
emissions may not exceed 4.0 grams per brake horsepower hour (gbh).
(C) Lead time and stability. -- Any standard promulgated or revised
under this paragraph and applicable to classes or categories of
heavy-duty vehicles or engines shall apply for a period of no less than
3 model years beginning no earlier than the model year commencing 4
years after such revised standard is promulgated.
(D) Rebuilding practices. -- The Administrator shall study the
practice of rebuilding heavy-duty engines and the impact rebuilding has
on engine emissions. On the basis of that study and other information
available to the Administrator, the Administrator may prescribe
requirements to control rebuilding practices, including standards
applicable to emissions from any rebuilt heavy-duty engines (whether or
not the engine is past its statutory useful life), which in the
Administrator's judgment cause, or contribute to, air pollution which
may reasonably be anticipated to endanger public health or welfare
taking costs into account. Any regulation shall take effect after a
period the Administrator finds necessary to permit the development and
application of the requisite control measures, giving appropriate
consideration to the cost of compliance within the period and energy and
safety factors.
(E) Motorcycles. -- For purposes of this paragraph, motorcycles and
motorcycle engines shall be treated in the same manner as heavy-duty
vehicles and engines (except as otherwise permitted under section
7525(f)(1) /1/ of this title) unless the Administrator promulgates a
rule reclassifying motorcycles as light-duty vehicles within the meaning
of this section or unless the Administrator promulgates regulations
under subsection (a) of this section applying standards applicable to
the emission of air pollutants from motorcycles as a separate class or
category. In any case in which such standards are promulgated for such
emissions from motorcycles as a separate class or category, the
Administrator, in promulgating such standards, shall consider the need
to achieve equivalency of emission reductions between motorcycles and
other motor vehicles to the maximum extent practicable.
(4)(A) Effective with respect to vehicles and engines manufactured
after model year 1978, no emission control device, system, or element of
design shall be used in a new motor vehicle or new motor vehicle engine
for purposes of complying with requirements prescribed under this
subchapter if such device, system, or element of design will cause or
contribute to an unreasonable risk to public health, welfare, or safety
in its operation or function.
(B) In determining whether an unreasonable risk exists under
subparagraph (A), the Administrator shall consider, among other factors,
(i) whether and to what extent the use of any device, system, or element
of design causes, increases, reduces, or eliminates emissions of any
unregulated pollutants; (ii) available methods for reducing or
eliminating any risk to public health, welfare, or safety which may be
associated with the use of such device, system, or element of design,
and (iii) the availability of other devices, systems, or elements of
design which may be used to conform to requirements prescribed under
this subchapter without causing or contributing to such unreasonable
risk. The Administrator shall include in the consideration required by
this paragraph all relevant information developed pursuant to section
7548 of this title.
(5)(A) If the Administrator promulgates final regulations which
define the degree of control required and the test procedures by which
compliance could be determined for gasoline vapor recovery of
uncontrolled emissions from the fueling of motor vehicles, the
Administrator shall, after consultation with the Secretary of
Transportation with respect to motor vehicle safety, prescribe, by
regulation, fill pipe standards for new motor vehicles in order to
insure effective connection between such fill pipe and any vapor
recovery system which the Administrator determines may be required to
comply with such vapor recovery regulations. In promulgating such
standards the Administrator shall take into consideration limits on fill
pipe diameter, minimum design criteria for nozzle retainer lips, limits
on the location of the unleaded fuel restrictors, a minimum access zone
surrounding a fill pipe, a minimum pipe or nozzle insertion angle, and
such other factors as he deems pertinent.
(B) Regulations prescribing standards under subparagraph (A) shall
not become effective until the introduction of the model year for which
it would be feasible to implement such standards, taking into
consideration the restraints of an adequate leadtime for design and
production.
(C) Nothing in subparagraph (A) shall (i) prevent the Administrator
from specifying different nozzle and fill neck sizes for gasoline with
additives and gasoline without additives or (ii) permit the
Administrator to require a specific location, configuration, modeling,
or styling of the motor vehicle body with respect to the fuel tank fill
neck or fill nozzle clearance envelope.
(D) For the purpose of this paragraph, the term ''fill pipe'' shall
include the fuel tank fill pipe, fill neck, fill inlet, and closure.
(6) Onboard vapor recovery. -- Within 1 year after November 15, 1990,
the Administrator shall, after consultation with the Secretary of
Transportation regarding the safety of vehicle-based (''onboard'')
systems for the control of vehicle refueling emissions, promulgate
standards under this section requiring that new light-duty vehicles
manufactured beginning in the fourth model year after the model year in
which the standards are promulgated and thereafter shall be equipped
with such systems. The standards required under this paragraph shall
apply to a percentage of each manufacturer's fleet of new light-duty
vehicles beginning with the fourth model year after the model year in
which the standards are promulgated. The percentage shall be as
specified in the following table:
The standards shall require that such systems provide a minimum
evaporative emission capture efficiency of 95 percent. The requirements
of section 7511a(b)(3) of this title (relating to stage II gasoline
vapor recovery) for areas classified under section 7511 of this title as
moderate for ozone shall not apply after promulgation of such standards
and the Administrator may, by rule, revise or waive the application of
the requirements of such section 7511a(b)(3) of this title for areas
classified under section 7511 of this title as Serious, Severe, or
Extreme for ozone, as appropriate, after such time as the Administrator
determines that onboard emissions control systems required under this
paragraph are in widespread use throughout the motor vehicle fleet.
(b) Emissions of carbon monoxide, hydrocarbons, and oxides of
nitrogen; annual report to Congress; waiver of emission standards;
research objectives
(1)(A) The regulations under subsection (a) of this section
applicable to emissions of carbon monoxide and hydrocarbons from
light-duty vehicles and engines manufactured during model years 1977
through 1979 shall contain standards which provide that such emissions
from such vehicles and engines may not exceed 1.5 grams per vehicle mile
of hydrocarbons and 15.0 grams per vehicle mile of carbon monoxide. The
regulations under subsection (a) of this section applicable to emissions
of carbon monoxide from light-duty vehicles and engines manufactured
during the model year 1980 shall contain standards which provide that
such emissions may not exceed 7.0 grams per vehicle mile. The
regulations under subsection (a) of this section applicable to emissions
of hydrocarbons from light-duty vehicles and engines manufactured during
or after model year 1980 shall contain standards which require a
reduction of at least 90 percent from emissions of such pollutant
allowable under the standards under this section applicable to
light-duty vehicles and engines manufactured in model year 1970. Unless
waived as provided in paragraph (5), regulations under subsection (a) of
this section applicable to emissions of carbon monoxide from light-duty
vehicles and engines manufactured during or after the model year 1981
shall contain standards which require a reduction of at least 90 percent
from emissions of such pollutant allowable under the standards under
this section applicable to light-duty vehicles and engines manufactured
in model year 1970.
(B) The regulations under subsection (a) of this section applicable
to emissions of oxides of nitrogen from light-duty vehicles and engines
manufactured during model years 1977 through 1980 shall contain
standards which provide that such emissions from such vehicles and
engines may not exceed 2.0 grams per vehicle mile. The regulations
under subsection (a) of this section applicable to emissions of oxides
of nitrogen from light-duty vehicles and engines manufactured during the
model year 1981 and thereafter shall contain standards which provide
that such emissions from such vehicles and engines may not exceed 1.0
gram per vehicle mile. The Administrator shall prescribe standards in
lieu of those required by the preceding sentence, which provide that
emissions of oxides of nitrogen may not exceed 2.0 grams per vehicle
mile for any light-duty vehicle manufactured during model years 1981 and
1982 by any manufacturer whose production, by corporate identity, for
calendar year 1976 was less than three hundred thousand light-duty motor
vehicles worldwide if the Administrator determines that --
(i) the ability of such manufacturer to meet emission standards in
the 1975 and subsequent model years was, and is, primarily dependent
upon technology developed by other manufacturers and purchased from such
manufacturers; and
(ii) such manufacturer lacks the financial resources and
technological ability to develop such technology.
(C) The Administrator may promulgate regulations under subsection
(a)(1) of this section revising any standard prescribed or previously
revised under this subsection, as needed to protect public health or
welfare, taking costs, energy, and safety into account. Any revised
standard shall require a reduction of emissions from the standard that
was previously applicable. Any such revision under this subchapter may
provide for a phase-in of the standard. It is the intent of Congress
that the numerical emission standards specified in subsections
(a)(3)(B)(ii), (g), (h), and (i) of this section shall not be modified
by the Administrator after November 15, 1990, for any model year before
the model year 2004.
(2) Emission standards under paragraph (1), and measurement
techniques on which such standards are based (if not promulgated prior
to November 15, 1990), shall be promulgated by regulation within 180
days after November 15, 1990.
(3) For purposes of this part --
(A)(i) The term ''model year'' with reference to any specific
calendar year means the manufacturer's annual production period (as
determined by the Administrator) which includes January 1 of such
calendar year. If the manufacturer has no annual production period, the
term ''model year'' shall mean the calendar year.
(ii) For the purpose of assuring that vehicles and engines
manufactured before the beginning of a model year were not manufactured
for purposes of circumventing the effective date of a standard required
to be prescribed by subsection (b) of this section, the Administrator
may prescribe regulations defining ''model year'' otherwise than as
provided in clause (i).
(B) Repealed. Pub. L. 101-549, title II, 230(1), Nov. 15, 1990,
104 Stat. 2529.
(C) The term ''heavy duty vehicle'' means a truck, bus, or other
vehicle manufactured primarily for use on the public streets, roads, and
highways (not including any vehicle operated exclusively on a rail or
rails) which has a gross vehicle weight (as determined under regulations
promulgated by the Administrator) in excess of six thousand pounds.
Such term includes any such vehicle which has special features enabling
off-street or off-highway operation and use.
(3) /2/ Upon the petition of any manufacturer, the Administrator,
after notice and opportunity for public hearing, may waive the standard
required under subparagraph (B) of paragraph (1) to not exceed 1.5 grams
of oxides of nitrogen per vehicle mile for any class or category of
light-duty vehicles or engines manufactured by such manufacturer during
any period of up to four model years beginning after the model year 1980
if the manufacturer demonstrates that such waiver is necessary to permit
the use of an innovative power train technology, or innovative emission
control device or system, in such class or category of vehicles or
engines and that such technology or system was not utilized by more than
1 percent of the light-duty vehicles sold in the United States in the
1975 model year. Such waiver may be granted only if the Administrator
determines --
(A) that such waiver would not endanger public health,
(B) that there is a substantial likelihood that the vehicles or
engines will be able to comply with the applicable standard under this
section at the expiration of the waiver, and
(C) that the technology or system has a potential for long-term air
quality benefit and has the potential to meet or exceed the average fuel
economy standard applicable under the Energy Policy and Conservation Act
(42 U.S.C. 6201 et seq.) upon the expiration of the waiver.
No waiver under this subparagraph /3/ granted to any manufacturer
shall apply to more than 5 percent of such manufacturer's production or
more than fifty thousand vehicles or engines, whichever is greater.
(c) Feasibility study and investigation by National Academy of
Sciences; reports to Administrator and Congress; availability of
information
(1) The Administrator shall undertake to enter into appropriate
arrangements with the National Academy of Sciences to conduct a
comprehensive study and investigation of the technological feasibility
of meeting the emissions standards required to be prescribed by the
Administrator by subsection (b) of this section.
(2) Of the funds authorized to be appropriated to the Administrator
by this chapter, such amounts as are required shall be available to
carry out the study and investigation authorized by paragraph (1) of
this subsection.
(3) In entering into any arrangement with the National Academy of
Sciences for conducting the study and investigation authorized by
paragraph (1) of this subsection, the Administrator shall request the
National Academy of Sciences to submit semiannual reports on the
progress of its study and investigation to the Administrator and the
Congress, beginning not later than July 1, 1971, and continuing until
such study and investigation is completed.
(4) The Administrator shall furnish to such Academy at its request
any information which the Academy deems necessary for the purpose of
conducting the investigation and study authorized by paragraph (1) of
this subsection. For the purpose of furnishing such information, the
Administrator may use any authority he has under this chapter (A) to
obtain information from any person, and (B) to require such person to
conduct such tests, keep such records, and make such reports respecting
research or other activities conducted by such person as may be
reasonably necessary to carry out this subsection.
(d) Useful life of vehicles
The Administrator shall prescribe regulations under which the useful
life of vehicles and engines shall be determined for purposes of
subsection (a)(1) of this section and section 7541 of this title. Such
regulations shall provide that except where a different useful life
period is specified in this subchapter useful life shall --
(1) in the case of light duty vehicles and light duty vehicle engines
and light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR,
be a period of use of five years or fifty thousand miles (or the
equivalent), whichever first occurs, except that in the case of any
requirement of this section which first becomes applicable after
November 15, 1990, where the useful life period is not otherwise
specified for such vehicles and engines, the period shall be 10 years or
100,000 miles (or the equivalent), whichever first occurs, with testing
for purposes of in-use compliance under section 7541 of this title up to
(but not beyond) 7 years or 75,000 miles (or the equivalent), whichever
first occurs;
(2) in the case of any other motor vehicle or motor vehicle engine
(other than motorcycles or motorcycle engines), be a period of use set
forth in paragraph (1) unless the Administrator determines that a period
of use of greater duration or mileage is appropriate; and
(3) in the case of any motorcycle or motorcycle engine, be a period
of use the Administrator shall determine.
(e) New power sources or propulsion systems
In the event of a new power source or propulsion system for new motor
vehicles or new motor vehicle engines is submitted for certification
pursuant to section 7525(a) of this title, the Administrator may
postpone certification until he has prescribed standards for any air
pollutants emitted by such vehicle or engine which in his judgment
cause, or contribute to, air pollution which may reasonably be
anticipated to endanger the public health or welfare but for which
standards have not been prescribed under subsection (a) of this section.
(f) /4/ High altitude regulations
(1) The high altitude regulation in effect with respect to model year
1977 motor vehicles shall not apply to the manufacture, distribution, or
sale of 1978 and later model year motor vehicles. Any future regulation
affecting the sale or distribution of motor vehicles or engines
manufactured before the model year 1984 in high altitude areas of the
country shall take effect no earlier than model year 1981.
(2) Any such future regulation applicable to high altitude vehicles
or engines shall not require a percentage of reduction in the emissions
of such vehicles which is greater than the required percentage of
reduction in emissions from motor vehicles as set forth in subsection
(b) of this section. This percentage reduction shall be determined by
comparing any proposed high altitude emission standards to high altitude
emissions from vehicles manufactured during model year 1970. In no
event shall regulations applicable to high altitude vehicles
manufactured before the model year 1984 establish a numerical standard
which is more stringent than that applicable to vehicles certified under
non-high altitude conditions.
(3) Section 7607(d) of this title shall apply to any high altitude
regulation referred to in paragraph (2) and before promulgating any such
regulation, the Administrator shall consider and make a finding with
respect to --
(A) the economic impact upon consumers, individual high altitude
dealers, and the automobile industry of any such regulation, including
the economic impact which was experienced as a result of the regulation
imposed during model year 1977 with respect to high altitude
certification requirements;
(B) the present and future availability of emission control
technology capable of meeting the applicable vehicle and engine emission
requirements without reducing model availability; and
(C) the likelihood that the adoption of such a high altitude
regulation will result in any significant improvement in air quality in
any area to which it shall apply.
(g) Light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles;
standards for model years after 1993
(1) NMHC, CO, and NOx
Effective with respect to the model year 1994 and thereafter, the
regulations under subsection (a) of this section applicable to emissions
of nonmethane hydrocarbons (NMHC), carbon monoxide (CO), and oxides of
nitrogen (NOx) from light-duty trucks (LDTs) of up to 6,000 lbs. gross
vehicle weight rating (GVWR) and light-duty vehicles (LDVs) shall
contain standards which provide that emissions from a percentage of each
manufacturer's sales volume of such vehicles and trucks shall comply
with the levels specified in table G. The percentage shall be as
specified in the implementation schedule below:
light-duty vehicles
(2) PM Standard
Effective with respect to model year 1994 and thereafter in the case
of light-duty vehicles, and effective with respect to the model year
1995 and thereafter in the case of light-duty trucks (LDTs) of up to
6,000 lbs. gross vehicle weight rating (GVWR), the regulations under
subsection (a) of this section applicable to emissions of particulate
matter (PM) from such vehicles and trucks shall contain standards which
provide that such emissions from a percentage of each manufacturer's
sales volume of such vehicles and trucks shall not exceed the levels
specified in the table below. The percentage shall be as specified in
the Implementation Schedule below.
(h) Light-duty trucks of more than 6,000 lbs. GVWR; standards for
model years after 1995
Effective with respect to the model year 1996 and thereafter, the
regulations under subsection (a) of this section applicable to emissions
of nonmethane hydrocarbons (NMHC), carbon monoxide (CO), oxides of
nitrogen (NOx), and particulate matter (PM) from light-duty trucks
(LDTs) of more than 6,000 lbs. gross vehicle weight rating (GVWR) shall
contain standards which provide that emissions from a specified
percentage of each manufacturer's sales volume of such trucks shall
comply with the levels specified in table H. The specified percentage
shall be 50 percent in model year 1996 and 100 percent thereafter.
(i) Phase II study for certain light-duty vehicles and light-duty
trucks
(1) The Administrator, with the participation of the Office of
Technology Assessment, shall study whether or not further reductions in
emissions from light-duty vehicles and light-duty trucks should be
required pursuant to this subchapter. The study shall consider whether
to establish with respect to model years commencing after January 1,
2003, the standards and useful life period for gasoline and
diesel-fueled light-duty vehicles and light-duty trucks with a loaded
vehicle weight (LVW) of 3,750 lbs. or less specified in the following
table:
3,750 lbs. lvw or less
Such study shall also consider other standards and useful life
periods which are more stringent or less stringent than those set forth
in table 3 (but more stringent than those referred to in subsections (g)
and (h) of this section).
(2)(A) As part of the study under paragraph (1), the Administrator
shall examine the need for further reductions in emissions in order to
attain or maintain the national ambient air quality standards, taking
into consideration the waiver provisions of section 7543(b) of this
title. As part of such study, the Administrator shall also examine --
(i) the availability of technology (including the costs thereof), in
the case of light-duty vehicles and light-duty trucks with a loaded
vehicle weight (LVW) of 3,750 lbs. or less, for meeting more stringent
emission standards than those provided in subsections (g) and (h) of
this section for model years commencing not earlier than after January
1, 2003, and not later than model year 2006, including the lead time and
safety and energy impacts of meeting more stringent emission standards;
and
(ii) the need for, and cost effectiveness of, obtaining further
reductions in emissions from such light-duty vehicles and light-duty
trucks, taking into consideration alternative means of attaining or
maintaining the national primary ambient air quality standards pursuant
to State implementation plans and other requirements of this chapter,
including their feasibility and cost effectiveness.
(B) The Administrator shall submit a report to Congress no later than
June 1, 1997, containing the results of the study under this subsection,
including the results of the examination conducted under subparagraph
(A). Before submittal of such report the Administrator shall provide a
reasonable opportunity for public comment and shall include a summary of
such comments in the report to Congress.
(3)(A) Based on the study under paragraph (1) the Administrator shall
determine, by rule, within 3 calendar years after the report is
submitted to Congress, but not later than December 31, 1999, whether --
(i) there is a need for further reductions in emissions as provided
in paragraph (2)(A);
(ii) the technology for meeting more stringent emission standards
will be available, as provided in paragraph (2)(A)(i), in the case of
light-duty vehicles and light-duty trucks with a loaded vehicle weight
(LVW) of 3,750 lbs. or less, for model years commencing not earlier
than January 1, 2003, and not later than model year 2006, considering
the factors listed in paragraph (2)(A)(i); and
(iii) obtaining further reductions in emissions from such vehicles
will be needed and cost effective, taking into consideration
alternatives as provided in paragraph (2)(A)(ii).
The rulemaking under this paragraph shall commence within 3 months
after submission of the report to Congress under paragraph (2)(B).
(B) If the Administrator determines under subparagraph (A) that --
(i) there is no need for further reductions in emissions as provided
in paragraph (2)(A);
(ii) the technology for meeting more stringent emission standards
will not be available as provided in paragraph (2)(A)(i), in the case of
light-duty vehicles and light-duty trucks with a loaded vehicle weight
(LVW) of 3,750 lbs. or less, for model years commencing not earlier
than January 1, 2003, and not later than model year 2006, considering
the factors listed in paragraph (2)(A)(i); or
(iii) obtaining further reductions in emissions from such vehicles
will not be needed or cost effective, taking into consideration
alternatives as provided in paragraph (2)(A)(ii),
the Administrator shall not promulgate more stringent standards than
those in effect pursuant to subsections (g) and (h) of this section.
Nothing in this paragraph shall prohibit the Administrator from
exercising the Administrator's authority under subsection (a) of this
section to promulgate more stringent standards for light-duty vehicles
and light-duty trucks with a loaded vehicle weight (LVW) of 3,750 lbs.
or less at any other time thereafter in accordance with subsection (a)
of this section.
(C) If the Administrator determines under subparagraph (A) that --
(i) there is a need for further reductions in emissions as provided
in paragraph (2)(A);
(ii) the technology for meeting more stringent emission standards
will be available, as provided in paragraph (2)(A)(i), in the case of
light-duty vehicles and light-duty trucks with a loaded vehicle weight
(LVW) of 3,750 lbs. or less, for model years commencing not earlier
than January 1, 2003, and not later than model year 2006, considering
the factors listed in paragraph (2)(A)(i); and
(iii) obtaining further reductions in emissions from such vehicles
will be needed and cost effective, taking into consideration
alternatives as provided in paragraph (2)(A)(ii),
the Administrator shall either promulgate the standards (and useful
life periods) set forth in Table 3 in paragraph (1) or promulgate
alternative standards (and useful life periods) which are more stringent
than those referred to in subsections (g) and (h) of this section. Any
such standards (or useful life periods) promulgated by the Administrator
shall take effect with respect to any such vehicles or engines no
earlier than the model year 2003 but not later than model year 2006, as
determined by the Administrator in the rule.
(D) Nothing in this paragraph shall be construed by the Administrator
or by a court as a presumption that any standards (or useful life
period) set forth in Table 3 shall be promulgated in the rulemaking
required under this paragraph. The action required of the Administrator
in accordance with this paragraph shall be treated as a nondiscretionary
duty for purposes of section 7604(a)(2) of this title (relating to
citizen suits).
(E) Unless the Administrator determines not to promulgate more
stringent standards as provided in subparagraph (B) or to postpone the
effective date of standards referred to in Table 3 in paragraph (1) or
to establish alternative standards as provided in subparagraph (C),
effective with respect to model years commencing after January 1, 2003,
the regulations under subsection (a) of this section applicable to
emissions of nonmethane hydrocarbons (NMHC), oxides of nitrogen (NOx),
and carbon monoxide (CO) from motor vehicles and motor vehicle engines
in the classes specified in Table 3 in paragraph (1) above shall contain
standards which provide that emissions may not exceed the pending
emission levels specified in Table 3 in paragraph (1).
(j) Cold CO standard
(1) Phase I
Not later than 12 months after November 15, 1990, the Administrator
shall promulgate regulations under subsection (a) of this section
applicable to emissions of carbon monoxide from 1994 and later model
year light-duty vehicles and light-duty trucks when operated at 20
degrees Fahrenheit. The regulations shall contain standards which
provide that emissions of carbon monoxide from a manufacturer's vehicles
when operated at 20 degrees Fahrenheit may not exceed, in the case of
light-duty vehicles, 10.0 grams per mile, and in the case of light-duty
trucks, a level comparable in stringency to the standard applicable to
light-duty vehicles. The standards shall take effect after model year
1993 according to a phase-in schedule which requires a percentage of
each manufacturer's sales volume of light-duty vehicles and light-duty
trucks to comply with applicable standards after model year 1993. The
percentage shall be as specified in the following table:
(2) Phase II
(A) Not later than June 1, 1997, the Administrator shall complete a
study assessing the need for further reductions in emissions of carbon
monoxide and the maximum reductions in such emissions achievable from
model year 2001 and later model year light-duty vehicles and light-duty
trucks when operated at 20 degrees Fahrenheit.
(B)(i) If as of June 1, 1997, 6 or more nonattainment areas have a
carbon monoxide design value of 9.5 ppm or greater, the regulations
under subsection (a)(1) of this section applicable to emissions of
carbon monoxide from model year 2002 and later model year light-duty
vehicles and light-duty trucks shall contain standards which provide
that emissions of carbon monoxide from such vehicles and trucks when
operated at 20 degrees Fahrenheit may not exceed 3.4 grams per mile
(gpm) in the case of light-duty vehicles and 4.4 grams per mile (gpm) in
the case of light-duty trucks up to 6,000 GVWR and a level comparable in
stringency in the case of light-duty trucks 6,000 GVWR and above.
(ii) In determining for purposes of this subparagraph whether 6 or
more nonattainment areas have a carbon monoxide design value of 9.5 ppm
or greater, the Administrator shall exclude the areas of Steubenville,
Ohio, and Oshkosh, Wisconsin.
(3) Useful-life for phase I and phase II standards
In the case of the standards referred to in paragraphs (1) and (2),
for purposes of certification under section 7525 of this title and
in-use compliance under section 7541 of this title, the applicable
useful life period shall be 5 years or 50,000 miles, whichever first
occurs, except that the Administrator may extend such useful life period
(for purposes of section 7525 of this title, or section 7541 of this
title, or both) if he determines that it is feasible for vehicles and
engines subject to such standards to meet such standards for a longer
useful life. If the Administrator extends such useful life period, the
Administrator may make an appropriate adjustment of applicable standards
for such extended useful life. No such extended useful life shall
extend beyond the useful life period provided in regulations under
subsection (d) of this section.
(4) Heavy-duty vehicles and engines
The Administrator may also promulgate regulations under subsection
(a)(1) of this section applicable to emissions of carbon monoxide from
heavy-duty vehicles and engines when operated at cold temperatures.
(k) Control of evaporative emissions
The Administrator shall promulgate (and from time to time revise)
regulations applicable to evaporative emissions of hydrocarbons from all
gasoline-fueled motor vehicles --
(1) during operation; and
(2) over 2 or more days of nonuse;
under ozone-prone summertime conditions (as determined by regulations
of the Administrator). The regulations shall take effect as
expeditiously as possible and shall require the greatest degree of
emission reduction achievable by means reasonably expected to be
available for production during any model year to which the regulations
apply, giving appropriate consideration to fuel volatility, and to cost,
energy, and safety factors associated with the application of the
appropriate technology. The Administrator shall commence a rulemaking
under this subsection within 12 months after November 15, 1990. If
final regulations are not promulgated under this subsection within 18
months after November 15, 1990, the Administrator shall submit a
statement to the Congress containing an explanation of the reasons for
the delay and a date certain for promulgation of such final regulations
in accordance with this chapter. Such date certain shall not be later
than 15 months after the expiration of such 18 month deadline.
(l) Mobile source-related air toxics
(1) Study
Not later than 18 months after November 15, 1990, the Administrator
shall complete a study of the need for, and feasibility of, controlling
emissions of toxic air pollutants which are unregulated under this
chapter and associated with motor vehicles and motor vehicle fuels, and
the need for, and feasibility of, controlling such emissions and the
means and measures for such controls. The study shall focus on those
categories of emissions that pose the greatest risk to human health or
about which significant uncertainties remain, including emissions of
benzene, formaldehyde, and 1,3 butadiene. The proposed report shall be
available for public review and comment and shall include a summary of
all comments.
(2) Standards
Within 54 months after November 15, 1990, the Administrator shall,
based on the study under paragraph (1), promulgate (and from time to
time revise) regulations under subsection (a)(1) of this section or
section 7545(c)(1) of this title containing reasonable requirements to
control hazardous air pollutants from motor vehicles and motor vehicle
fuels. The regulations shall contain standards for such fuels or
vehicles, or both, which the Administrator determines reflect the
greatest degree of emission reduction achievable through the application
of technology which will be available, taking into consideration the
standards established under subsection (a) of this section, the
availability and costs of the technology, and noise, energy, and safety
factors, and lead time. Such regulations shall not be inconsistent with
standards under subsection (a) of this section. The regulations shall,
at a minimum, apply to emissions of benzene and formaldehyde.
(m) Emissions control diagnostics
(1) Regulations
Within 18 months after November 15, 1990, the Administrator shall
promulgate regulations under subsection (a) of this section requiring
manufacturers to install on all new light duty vehicles and light duty
trucks diagnostics systems capable of --
(A) accurately identifying for the vehicle's useful life as
established under this section, emission-related systems deterioration
or malfunction, including, at a minimum, the catalytic converter and
oxygen sensor, which could cause or result in failure of the vehicles to
comply with emission standards established under this section,
(B) alerting the vehicle's owner or operator to the likely need for
emission-related components or systems maintenance or repair,
(C) storing and retrieving fault codes specified by the
Administrator, and
(D) providing access to stored information in a manner specified by
the Administrator.
The Administrator may, in the Administrator's discretion, promulgate
regulations requiring manufacturers to install such onboard diagnostic
systems on heavy-duty vehicles and engines.
(2) Effective date
The regulations required under paragraph (1) of this subsection shall
take effect in model year 1994, except that the Administrator may waive
the application of such regulations for model year 1994 or 1995 (or
both) with respect to any class or category of motor vehicles if the
Administrator determines that it would be infeasible to apply the
regulations to that class or category in such model year or years,
consistent with corresponding regulations or policies adopted by the
California Air Resources Board for such systems.
(3) State inspection
The Administrator shall by regulation require States that have
implementation plans containing motor vehicle inspection and maintenance
programs to amend their plans within 2 years after promulgation of such
regulations to provide for inspection of onboard diagnostics systems (as
prescribed by regulations under paragraph (1) of this subsection) and
for the maintenance or repair of malfunctions or system deterioration
identified by or affecting such diagnostics systems. Such regulations
shall not be inconsistent with the provisions for warranties promulgated
under section 7541(a) and (b) of this title.
(4) Specific requirements
In promulgating regulations under this subsection, the Administrator
shall require --
(A) that any connectors through which the emission control
diagnostics system is accessed for inspection, diagnosis, service, or
repair shall be standard and uniform on all motor vehicles and motor
vehicle engines;
(B) that access to the emission control diagnostics system through
such connectors shall be unrestricted and shall not require any access
code or any device which is only available from a vehicle manufacturer;
and
(C) that the output of the data from the emission control diagnostics
system through such connectors shall be usable without the need for any
unique decoding information or device.
(5) Information availability
The Administrator, by regulation, shall require (subject to the
provisions of section 7542(c) of this title regarding the protection of
methods or processes entitled to protection as trade secrets)
manufacturers to provide promptly to any person engaged in the repairing
or servicing of motor vehicles or motor vehicle engines, and the
Administrator for use by any such persons, with any and all information
needed to make use of the emission control diagnostics system prescribed
under this subsection and such other information including instructions
for making emission related diagnosis and repairs. No such information
may be withheld under section 7542(c) of this title if that information
is provided (directly or indirectly) by the manufacturer to franchised
dealers or other persons engaged in the repair, diagnosing, or servicing
of motor vehicles or motor vehicle engines. Such information shall also
be available to the Administrator, subject to section 7542(c) of this
title, in carrying out the Administrator's responsibilities under this
section.
(f) /5/ Model years after 1990
For model years prior to model year 1994, the regulations under
subsection (a) of this section applicable to buses other than those
subject to standards under section 7554 of this title shall contain a
standard which provides that emissions of particulate matter (PM) from
such buses may not exceed the standards set forth in the following
table:
(July 14, 1955, ch. 360, title II, 202, as added Oct. 20, 1965, Pub.
L. 89-272, title I, 101(8), 79 Stat. 992, and amended Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 499; Dec. 31, 1970, Pub. L. 91-604,
6(a), 84 Stat. 1690; June 22, 1974, Pub. L. 93-319, 5, 88 Stat. 258;
Aug. 7, 1977, Pub. L. 95-95, title II, 201, 202(b), 213(b), 214(a),
215-217, 224(a), (b), (g), title IV, 401(d), 91 Stat. 751-753,
758-761, 765, 767, 769, 791; Nov. 16, 1977, Pub. L. 95-190,
14(a)(60)-(65), (b)(5), 91 Stat. 1403, 1405; Nov. 15, 1990, Pub. L.
101-549, title II, 201-207, 227(b), 230(1)-(5), 104 Stat. 2472-2481,
2507, 2529.)
The enactment of the Clean Air Act Amendments of 1990, referred to in
subsec. (a)(3)(B), probably means the enactment of Pub. L. 101-549,
Nov. 15, 1990, 104 Stat. 2399, which was approved Nov. 15, 1990. For
complete classification of this Act to the Code, see Short Title note
set out under section 7401 of this title and Tables.
Section 7525(f)(1) of this title, referred to in subsec. (a)(3)(E),
was redesignated section 7525(f) of this title by Pub. L. 101-549,
title II, 230(8), Nov. 15, 1990, 104 Stat. 2529.
The Energy Policy and Conservation Act, referred to in subsec.
(b)(3)(C), is Pub. L. 94-163, Dec. 22, 1975, 89 Stat. 871, as
amended, which is classified principally to chapter 77 ( 6201 et seq.)
of this title. For complete classification of this Act to the Code, see
Short Title note set out under section 6201 of this title and Tables.
Section was formerly classified to section 1857f-1 of this title.
1990 -- Subsec. (a)(3)(A). Pub. L. 101-549, 201(1), added subpar.
(A) and struck out former subpar. (A) which related to promulgation of
regulations applicable to reduction of emissions from heavy-duty
vehicles or engines manufactured during and after model year 1979 in the
case of carbon monoxide, hydrocarbons, and oxides of nitrogen, and from
vehicles manufactured during and after model year 1981 in the case of
particulate matter.
Subsec. (a)(3)(B). Pub. L. 101-549, 201(1), added subpar. (B) and
struck out former subpar. (B) which read as follows: ''During the
period of June 1 through December 31, 1978, in the case of hydrocarbons
and carbon monoxide, or during the period of June 1 through December 31,
1980, in the case of oxides of nitrogen, and during each period of June
1 through December 31 of each third year thereafter, the Administrator
may, after notice and opportunity for a public hearing promulgate
regulations revising any standard prescribed as provided in subparagraph
(A)(ii) for any class or category of heavy-duty vehicles or engines.
Such standard shall apply only for the period of three model years
beginning four model years after the model year in which such revised
standard is promulgated. In revising any standard under this
subparagraph for any such three model year period, the Administrator
shall determine the maximum degree of emission reduction which can be
achieved by means reasonably expected to be available for production of
such period and shall prescribe a revised emission standard in
accordance with such determination. Such revised standard shall require
a reduction of emissions from any standard which applies in the previous
model year.''
Subsec. (a)(3)(C). Pub. L. 101-549, 201(1), added subpar. (C) and
struck out former subpar. (C) which read as follows: ''Action revising
any standard for any period may be taken by the Administrator under
subparagraph (B) only if he finds --
''(i) that compliance with the emission standards otherwise
applicable for such model year cannot be achieved by technology,
processes, operating methods, or other alternatives reasonably expected
to be available for production for such model year without increasing
cost or decreasing fuel economy to an excessive and unreasonable degree;
and
''(ii) the National Academy of Sciences has not, pursuant to its
study and investigation under subsection (c) of this section, issued a
report substantially contrary to the findings of the Administrator under
clause (i).''
Subsec. (a)(3)(D). Pub. L. 101-549, 201(1), added subpar. (D) and
struck out former subpar. (D) which read as follows: ''A report shall
be made to the Congress with respect to any standard revised under
subparagraph (B) which shall contain --
''(i) a summary of the health effects found, or believed to be
associated with, the pollutant covered by such standard,
''(ii) an analysis of the cost-effectiveness of other strategies for
attaining and maintaining national ambient air quality standards and
carrying out regulations under part C of subchapter I (relating to
significant deterioration) in relation to the cost-effectiveness for
such purposes of standards which, but for such revision, would apply.
''(iii) a summary of the research and development efforts and
progress being made by each manufacturer for purposes of meeting the
standards promulgated as provided in subparagraph (A)(ii) or, if
applicable, subparagraph (E), and
''(iv) specific findings as to the relative costs of compliance, and
relative fuel economy, which may be expected to result from the
application for any model year of such revised standard and the
application for such model year of the standard, which, but for such
revision, would apply.''
Subsec. (a)(3)(E), (F). Pub. L. 101-549, 201, redesignated subpar.
(F) as (E), inserted heading, and struck out former subpar. (E) which
read as follows:
''(i) The Administrator shall conduct a continuing pollutant-specific
study concerning the effects of each air pollutant emitted from
heavy-duty vehicles or engines and from other sources of mobile source
related pollutants on the public health and welfare. The results of
such study shall be published in the Federal Register and reported to
the Congress not later than June 1, 1978, in the case of hydrocarbons
and carbon monoxide, and June 1, 1980, in the case of oxides of
nitrogen, and before June 1 of each third year thereafter.
''(ii) On the basis of such study and such other information as is
available to him (including the studies under section 7548 of this
title), the Administrator may, after notice and opportunity for a public
hearing, promulgate regulations under paragraph (1) of this subsection
changing any standard prescribed in subparagraph (A)(ii) (or revised
under subparagraph (B) or previously changed under this subparagraph).
No such changed standard shall apply for any model year before the model
year four years after the model year during which regulations containing
such changed standard are promulgated.''
Subsec. (a)(4)(A), (B). Pub. L. 101-549, 227(b), substituted
''requirements prescribed under this subchapter'' for ''standards
prescribed under this subsection''.
Subsec. (a)(6). Pub. L. 101-549, 202, amended par. (6) generally.
Prior to amendment, par. (6) read as follows: ''The Administrator
shall determine the feasibility and desirability of requiring new motor
vehicles to utilize onboard hydrocarbon control technology which would
avoid the necessity of gasoline vapor recovery of uncontrolled emissions
emanating from the fueling of motor vehicles. The Administrator shall
compare the costs and effectiveness of such technology to that of
implementing and maintaining vapor recovery systems (taking into
consideration such factors as fuel economy, economic costs of such
technology, administrative burdens, and equitable distribution of
costs). If the Administrator finds that it is feasible and desirable to
employ such technology, he shall, after consultation with the Secretary
of Transportation with respect to motor vehicle safety, prescribe, by
regulation, standards requiring the use of onboard hydrocarbon
technology which shall not become effective until the introduction to
the model year for which it would be feasible to implement such
standards, taking into consideration compliance costs and the restraints
of an adequate lead time for design and production.''
Subsec. (b)(1)(C). Pub. L. 101-549, 203(c), amended subpar. (C)
generally. Prior to amendment, subpar. (C) read as follows:
''Effective with respect to vehicles and engines manufactured after
model year 1978 (or in the case of heavy-duty vehicles or engines, such
later model year as the Administrator determines is the earliest
feasible model year), the test procedure promulgated under paragraph (2)
for measurement of evaporative emissions of hydrocarbons shall require
that such emissions be measured from the vehicle or engine as a whole.
Regulations to carry out this subparagraph shall be promulgated not
later than two hundred and seventy days after August 7, 1977.''
Subsec. (b)(2). Pub. L. 101-549, 203(d), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''Emission
standards under paragraph (1), and measurement techniques on which such
standards are based (if not promulgated prior to December 31, 1970),
shall be prescribed by regulation within 180 days after such date.''
Subsec. (b)(3). Pub. L. 101-549, 230(4), redesignated par. (6)
relating to waiver of standards for oxides of nitrogen as par. (3),
struck out subpar. (A) designation before ''Upon the petition'',
redesignated former cls. (i) to (iii) as subpars. (A) to (C),
respectively, and struck out former subpar. (B) which authorized the
Administrator to waive the standard under subsec. (b)(1)(B) of this
section for emissions of oxides of nitrogen from light-duty vehicles and
engines beginning in model year 1981 after providing notice and
opportunity for a public hearing, and set forth conditions under which a
waiver could be granted.
Subsec. (b)(3)(B). Pub. L. 101-549, 230(1), in the par. (3)
defining terms for purposes of this part struck out subpar. (B) which
defined ''light duty vehicles and engines''.
Subsec. (b)(4). Pub. L. 101-549, 230(2), struck out par. (4) which
read as follows: ''On July 1 of 1971, and of each year thereafter, the
Administrator shall report to the Congress with respect to the
development of systems necessary to implement the emission standards
established pursuant to this section. Such reports shall include
information regarding the continuing effects of such air pollutants
subject to standards under this section on the public health and
welfare, the extent and progress of efforts being made to develop the
necessary systems, the costs associated with development and application
of such systems, and following such hearings as he may deem advisable,
any recommendations for additional congressional action necessary to
achieve the purposes of this chapter. In gathering information for the
purposes of this paragraph and in connection with any hearing, the
provisions of section 7607(a) of this title (relating to subpenas) shall
apply.''
Subsec. (b)(5). Pub. L. 101-549, 230(3), struck out par. (5) which
related to waivers for model years 1981 and 1982 of the effective date
of the emissions standard required under par. (1)(A) for carbon
monoxide applicable to light-duty vehicles and engines manufactured in
those model years.
Subsec. (b)(6). Pub. L. 101-549, 230(4), redesignated par. (6) as
(3).
Subsec. (b)(7). Pub. L. 101-549, 230(5), struck out par. (7) which
read as follows: ''The Congress hereby declares and establishes as a
research objective, the development of propulsion systems and emission
control technology to achieve standards which represent a reduction of
at least 90 per centum from the average emissions of oxides of nitrogen
actually measured from light duty motor vehicles manufactured in model
year 1971 not subject to any Federal or State emission standard for
oxides of nitrogen. The Administrator shall, by regulations promulgated
within one hundred and eighty days after August 7, 1977, require each
manufacturer whose sales represent at least 0.5 per centum of light duty
motor vehicle sales in the United States, to build and, on a regular
basis, demonstrate the operation of light duty motor vehicles that meet
this research objective, in addition to any other applicable standards
or requirements for other pollutants under this chapter. Such
demonstration vehicles shall be submitted to the Administrator no later
than model year 1979 and in each model year thereafter. Such
demonstration shall, in accordance with applicable regulations, to the
greatest extent possible, (A) be designed to encourage the development
of new powerplant and emission control technologies that are fuel
efficient, (B) assure that the demonstration vehicles are or could
reasonably be expected to be within the productive capability of the
manufacturers, and (C) assure the utilization of optimum engine, fuel,
and emission control systems.''
Subsec. (d). Pub. L. 101-549, 203(b)(1), substituted ''provide that
except where a different useful life period is specified in this
subchapter'' for ''provide that''.
Subsec. (d)(1). Pub. L. 101-549, 203(b)(2), (3), inserted ''and
light-duty trucks up to 3,750 lbs. LVW and up to 6,000 lbs. GVWR''
after ''engines'' and substituted for semicolon at end '', except that
in the case of any requirement of this section which first becomes
applicable after November 15, 1990, where the useful life period is not
otherwise specified for such vehicles and engines, the period shall be
10 years or 100,000 miles (or the equivalent), whichever first occurs,
with testing for purposes of in-use compliance under section 7541 of
this title up to (but not beyond) 7 years or 75,000 miles (or the
equivalent), whichever first occurs;''.
Subsec. (f). Pub. L. 101-549, 207(b), added (after subsec. (m) at
end) subsec. (f) relating to regulations applicable to buses for model
years after 1990.
Subsecs. (g) to (i). Pub. L. 101-549, 203(a), added subsecs. (g)
to (i).
Subsec. (j). Pub. L. 101-549, 204, added subsec. (j).
Subsec. (k). Pub. L. 101-549, 205, added subsec. (k).
Subsec. (l). Pub. L. 101-549, 206, added subsec. (l).
Subsec. (m). Pub. L. 101-549, 207(a), added subsec. (m).
1977 -- Subsec. (a)(1). Pub. L. 95-190, 14(a)(60), restructured
subsec. (a) by providing for designation of par. (1) to precede ''The
Administrator'' in place of ''Except as''.
Pub. L. 95-95, 401(d)(1), substituted ''Except as otherwise provided
in subsection (b) of this section the Administrator'' for ''The
Administrator'', ''cause, or contribute to, air pollution which may
reasonably be anticipated to endanger public health or welfare'' for
''causes or contributes to, or is likely to cause or contribute to, air
pollution which endangers the public health or welfare'', and ''useful
life (as determined under subsection (d) of this section, relating to
useful life of vehicles for purposes of certification), whether such
vehicles and engines are designed as complete systems or incorporate
devices'' for ''useful life (as determined under subsection (d) of this
section) whether such vehicles and engines are designed as complete
systems or incorporated devices''.
Subsec. (a)(2). Pub. L. 95-95, 214(a), substituted ''prescribed
under paragraph (1) of this subsection'' for ''prescribed under this
subsection''.
Subsec. (a)(3). Pub. L. 95-95, 224(a), added par. (3).
Subsec. (a)(3)(B). Pub. L. 95-190, 14(a)(61), (62), substituted
provisions setting forth applicable periods of from June 1 through Dec.
31, 1978, June 1 through Dec. 31, 1980, and during each period of June
1 through Dec. 31 of each third year thereafter, for provisions setting
forth applicable periods of from June 1 through Dec. 31, 1979, and
during each period of June 1 through Dec. 31 of each third year after
1979, and substituted ''from any'' for ''of from any''.
Subsec. (a)(3)(E). Pub. L. 95-190, 14(a)(63), substituted ''1978, in
the case of hydrocarbons and carbon monoxide, and June 1, 1980, in the
case of oxides of nitrogen'' for ''1979,''.
Subsec. (a)(4). Pub. L. 95-95, 214(a), added par. (4).
Subsec. (a)(5). Pub. L. 95-95, 215, added par. (5).
Subsec. (a)(6). Pub. L. 95-95, 216, added par. (6).
Subsec. (b)(1)(A). Pub. L. 95-95, 201(a), substituted provisions
setting the standards for emissions from light-duty vehicles and engines
manufactured during the model years 1977 through 1980 for provisions
which had set the standards for emissions from light-duty vehicles and
engines manufactured during the model years 1975 and 1976, substituted
''model year 1980'' for ''model year 1977'' in provisions requiring a
reduction of at least 90 per centum from the emissions allowable under
standards for model year 1970, and inserted provisions that, unless
waived as provided in par. (5), the standards for vehicles and engines
manufactured during or after the model year 1981 represent a reduction
of at least 90 per centum from the emissions allowable under standards
for model year 1970.
Subsec. (b)(1)(B). Pub. L. 95-190, 14(a)(64), (65), substituted
''calendar year 1976'' for ''model year 1976'' and in cl. (i)
substituted ''other'' for ''United States''.
Pub. L. 95-95, 201(b), substituted provisions setting the standards
for emissions from light-duty vehicles and engines manufactured during
the model years 1977 through 1980 for provisions which had set the
standards for emissions from light-duty vehicles and engines
manufactured during the model years 1975 through 1977, substituted
provisions that the standards for model years 1981 and after allow
emissions of no more than 1.0 gram per vehicle mile for provisions that
the standards for model year 1978 and after require a reduction of at
least 90 per centum from the average of emissions actually measured from
light-duty vehicles manufactured during model year 1971 which were not
subject to any Federal or State emission standards for oxides of
nitrogen, and inserted provisions directing the Administrator to
prescribe separate standards for model years 1981 and 1982 for
manufacturers whose production, by corporate identity, for model year
1976 was less than three hundred thousand light-duty motor vehicles
worldwide if the manufacturer's capability to meet emission standards
depends upon United States technology and if the manufacturer cannot
develop one.
Subsec. (b)(1)(C). Pub. L. 95-95, 217, added subpar. (C).
Subsec. (b)(3)(C). Pub. L. 95-95, 224(b), added subpar. (C).
Subsec. (b)(5). Pub. L. 95-95, 201(c), substituted provisions
setting up a procedure under which a manufacturer may apply for a waiver
for model years 1981 and 1982 of the effective date of the emission
standards for carbon monoxide required by par. (1)(A) for provisions
which had set up a procedure under which a manufacturer, after Jan. 1,
1975, could apply for a one-year suspension of the effective date of any
emission standard required by par. (1)(A) for model year 1977.
Subsec. (b)(6). Pub. L. 95-95, 201(c), added par. (6).
Subsec. (b)(7). Pub. L. 95-95, 202(b), added par. (7).
Subsec. (d)(2). Pub. L. 95-95, 224(g), as amended by Pub. L.
95-190, 14(b)(5), to correct typographical error in directory language,
inserted ''(other than motorcycles or motorcycle engines)'' after
''motor vehicle or motor vehicle engine''.
Subsec. (d)(3). Pub. L. 95-95, 224(g), added par. (3).
Subsec. (e). Pub. L. 95-95, 401(d)(2), substituted ''which in his
judgment cause, or contribute to, air pollution which may reasonably be
anticipated to endanger'' for ''which cause or contribute to, or are
likely to cause or contribute to, air pollution which endangers''.
Subsec. (f). Pub. L. 95-95, 213(b), added subsec. (f).
1974 -- Subsec. (b)(1)(A). Pub. L. 93-319, 5(a), substituted
''model year 1977'' for ''model year 1975'' in provisions requiring a
reduction of at least 90 per centum from the emissions allowable under
standards for model year 1970 and inserted provisions covering
regulations for model years 1975 and 1976.
Subsec. (b)(1)(B). Pub. L. 93-319, 5(b), substituted ''model year
1978'' for ''model year 1976'' in provisions requiring a reduction of at
least 90 per centum from the average of emissions actually measured from
vehicles manufactured during model year 1971 and inserted provisions
covering regulations for model years 1975, 1976, and 1977.
Subsec. (b)(5). Pub. L. 93-319, 5(c), (d), substituted in subpar.
(A), ''At any time after January 1, 1975'' for ''At any time after
January 1, 1972'', ''with respect to such manufacturer for light-duty
vehicles and engines manufactured in model year 1977'' for ''with
respect to such manufacturer'', ''sixty days'' for ''60 days'',
''paragraph (1)(A) of this subsection'' for ''paragraph (1)(A)'', and
''vehicles and engines manufactured during model year 1977'' for
''vehicles and engines manufactured during model year 1975'',
redesignated subpars. (C) to (E) as (B) to (D), respectively, and
struck out former subpar. (B) which had allowed manufacturers, at any
time after Jan. 1, 1973, to file with the Administrator an application
requesting a 1-year suspension of the effective date of any emission
standard required by subsec. (b)(1)(B) with respect to such
manufacturer.
1970 -- Subsec. (a). Pub. L. 91-604 redesignated existing provisions
as par. (1), substituted Administrator for Secretary as the issuing
authority for standards, inserted references to the useful life of
engines, and substituted the emission of any air pollutant for the
emission of any kind of substance as the subject to be regulated, and
added par. (2).
Subsec. (b). Pub. L. 91-604 added subsec. (b). Former subsec. (b)
redesignated as par. (2) of subsec. (a).
Subsecs. (c) to (e). Pub. L. 91-604 added subsecs. (c) to (e).
1967 -- Pub. L. 90-148 reenacted section without change.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
Section 202(a) of Pub. L. 95-95 provided that the Administrator of
the Environmental Protection Agency conduct a study of the public health
implications of attaining an emission standard on oxides of nitrogen
from light-duty vehicles of 0.4 gram per vehicle mile, the cost and
technological capability of attaining such standard, and the need for
such a standard to protect public health or welfare and that the
Administrator submit a report of such study to the Congress, together
with recommendations not later than July 1, 1980.
Section 226 of Pub. L. 95-95 provided that the Administrator, in
conjunction with the Secretary of Transportation, study the problem of
carbon monoxide intrusion into the passenger area of sustained-use motor
vehicles and that within one year the Administrator report to the
Congress respecting the results of such study.
Section 403(f) of Pub. L. 95-95 provided that: ''The Administrator
of the Environmental Protection Agency shall undertake to enter into
appropriate arrangements with the National Academy of Sciences to
conduct continuing comprehensive studies and investigations of the
effects on public health and welfare of emissions subject to section
202(a) of the Clean Air Act (subsec. (a) of this section) (including
sulfur compounds) and the technological feasibility of meeting emission
standards required to be prescribed by the Administrator by section
202(b) of such Act (subsec. (b) of this section). The Administrator
shall report to the Congress within six months of the date of enactment
of this section (Aug. 7, 1977) and each year thereafter regarding the
status of the contractual arrangements and conditions necessary to
implement this paragraph.''
Section 403(g) of Pub. L. 95-95 provided that the Administrator of
the Environmental Protection Agency conduct a study and report to the
Congress by the date one year after Aug. 7, 1977, on the emission of
sulfur-bearing compounds from motor vehicles and motor vehicle engines
and aircraft engines.
sections 1410, 2002.
/1/ See References in Text note below.
/2/ So in original. Probably should be ''(4)''.
/3/ So in original. Probably should be ''paragraph''.
/4/ Another subsec. (f) is set out after subsec. (m).
/5/ So in original. Probably should be ''(n)''.
42 USC 7522. Prohibited acts
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Enumerated prohibitions
The following acts and the causing thereof are prohibited --
(1) in the case of a manufacturer of new motor vehicles or new motor
vehicle engines for distribution in commerce, the sale, or the offering
for sale, or the introduction, or delivery for introduction, into
commerce, or (in the case of any person, except as provided by
regulation of the Administrator), the importation into the United
States, of any new motor vehicle or new motor vehicle engine,
manufactured after the effective date of regulations under this part
which are applicable to such vehicle or engine unless such vehicle or
engine is covered by a certificate of conformity issued (and in effect)
under regulations prescribed under this part or part C in the case of
clean-fuel vehicles (except as provided in subsection (b) of this
section);
(2)(A) for any person to fail or refuse to permit access to or
copying of records or to fail to make reports or provide information
required under section 7542 of this title;
(B) for any person to fail or refuse to permit entry, testing or
inspection authorized under section 7525(c) of this title or section
7542 of this title;
(C) for any person to fail or refuse to perform tests, or have tests
performed as required under section 7542 of this title;
(D) for any manufacturer to fail to make information available as
provided by regulation under section 7521(m)(5) of this title;
(3)(A) for any person to remove or render inoperative any device or
element of design installed on or in a motor vehicle or motor vehicle
engine in compliance with regulations under this subchapter prior to its
sale and delivery to the ultimate purchaser, or for any person knowingly
to remove or render inoperative any such device or element of design
after such sale and delivery to the ultimate purchaser; or
(B) for any person to manufacture or sell, or offer to sell, or
install, any part or component intended for use with, or as part of, any
motor vehicle or motor vehicle engine, where a principal effect of the
part or component is to bypass, defeat, or render inoperative any device
or element of design installed on or in a motor vehicle or motor vehicle
engine in compliance with regulations under this subchapter, and where
the person knows or should know that such part or component is being
offered for sale or installed for such use or put to such use; or
(4) for any manufacturer of a new motor vehicle or new motor vehicle
engine subject to standards prescribed under section 7521 of this title
or part C of this subchapter --
(A) to sell or lease any such vehicle or engine unless such
manufacturer has complied with (i) the requirements of section 7541(a)
and (b) of this title with respect to such vehicle or engine, and unless
a label or tag is affixed to such vehicle or engine in accordance with
section 7541(c)(3) of this title, or (ii) the corresponding requirements
of part C of this subchapter in the case of clean fuel vehicles unless
the manufacturer has complied with the corresponding requirements of
part C of this subchapter /1/
(B) to fail or refuse to comply with the requirements of section
7541(c) or (e) of this title, or the corresponding requirements of part
C of this subchapter in the case of clean fuel vehicles /1/
(C) except as provided in subsection (c)(3) of section 7541 of this
title and the corresponding requirements of part C of this subchapter in
the case of clean fuel vehicles, to provide directly or indirectly in
any communication to the ultimate purchaser or any subsequent purchaser
that the coverage of any warranty under this chapter is conditioned upon
use of any part, component, or system manufactured by such manufacturer
or any person acting for such manufacturer or under his control, or
conditioned upon service performed by any such person, or
(D) to fail or refuse to comply with the terms and conditions of the
warranty under section 7541(a) or (b) of this title or the corresponding
requirements of part C of this subchapter in the case of clean fuel
vehicles with respect to any vehicle; or
(5) for any person to violate section 7553 of this title, 7554 of
this title, or part C of this subchapter or any regulations under
section 7553 of this title, 7554 of this title, or part C of this
subchapter.
No action with respect to any element of design referred to in
paragraph (3) (including any adjustment or alteration of such element)
shall be treated as a prohibited act under such paragraph (3) if such
action is in accordance with section 7549 of this title. Nothing in
paragraph (3) shall be construed to require the use of manufacturer
parts in maintaining or repairing any motor vehicle or motor vehicle
engine. For the purposes of the preceding sentence, the term
''manufacturer parts'' means, with respect to a motor vehicle engine,
parts produced or sold by the manufacturer of the motor vehicle or motor
vehicle engine. No action with respect to any device or element of
design referred to in paragraph (3) shall be treated as a prohibited act
under that paragraph if (i) the action is for the purpose of repair or
replacement of the device or element, or is a necessary and temporary
procedure to repair or replace any other item and the device or element
is replaced upon completion of the procedure, and (ii) such action
thereafter results in the proper functioning of the device or element
referred to in paragraph (3). No action with respect to any device or
element of design referred to in paragraph (3) shall be treated as a
prohibited act under that paragraph if the action is for the purpose of
a conversion of a motor vehicle for use of a clean alternative fuel (as
defined in this subchapter) and if such vehicle complies with the
applicable standard under section 7521 of this title when operating on
such fuel, and if in the case of a clean alternative fuel vehicle (as
defined by rule by the Administrator), the device or element is replaced
upon completion of the conversion procedure and such action results in
proper functioning of the device or element when the motor vehicle
operates on conventional fuel.
(b) Exemptions; refusal to admit vehicle or engine into United
States; vehicles or engines intended for export
(1) The Administrator may exempt any new motor vehicle or new motor
vehicle engine, from subsection (a) of this section, upon such terms and
conditions as he may find necessary for the purpose of research,
investigations, studies, demonstrations, or training, or for reasons of
national security.
(2) A new motor vehicle or new motor vehicle engine offered for
importation or imported by any person in violation of subsection (a) of
this section shall be refused admission into the United States, but the
Secretary of the Treasury and the Administrator may, by joint
regulation, provide for deferring final determination as to admission
and authorizing the delivery of such a motor vehicle or engine offered
for import to the owner or consignee thereof upon such terms and
conditions (including the furnishing of a bond) as may appear to them
appropriate to insure that any such motor vehicle or engine will be
brought into conformity with the standards, requirements, and
limitations applicable to it under this part. The Secretary of the
Treasury shall, if a motor vehicle or engine is finally refused
admission under this paragraph, cause disposition thereof in accordance
with the customs laws unless it is exported, under regulations
prescribed by such Secretary, within ninety days of the date of notice
of such refusal or such additional time as may be permitted pursuant to
such regulations, except that disposition in accordance with the customs
laws may not be made in such manner as may result, directly or
indirectly, in the sale, to the ultimate consumer, of a new motor
vehicle or new motor vehicle engine that fails to comply with applicable
standards of the Administrator under this part.
(3) A new motor vehicle or new motor vehicle engine intended solely
for export, and so labeled or tagged on the outside of the container and
on the vehicle or engine itself, shall be subject to the provisions of
subsection (a) of this section, except that if the country which is to
receive such vehicle or engine has emission standards which differ from
the standards prescribed under section 7521 of this title, then such
vehicle or engine shall comply with the standards of such country which
is to receive such vehicle or engine.
(July 14, 1955, ch. 360, title II, 203, as added Oct. 20, 1965, Pub.
L. 89-272, title I, 101(8), 79 Stat. 993, and amended Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 499; Dec. 31, 1970, Pub. L. 91-604,
7(a), 11(a)(2)(A), 15(c)(2), 84 Stat. 1693, 1705, 1713; Aug. 7, 1977,
Pub. L. 95-95, title II, 206, 211(a), 218(a), (d), 219(a), (b), 91
Stat. 755, 757, 761, 762; Nov. 16, 1977, Pub. L. 95-190,
14(a)(66)-(68), 91 Stat. 1403; Nov. 15, 1990, Pub. L. 101-549, title
II, 228(a), (b), (e), 230(6), 104 Stat. 2507, 2511, 2529.)
Section was formerly classified to section 1857f-2 of this title.
1990 -- Subsec. (a). Pub. L. 101-549, 228(b)(2), inserted two
sentences at end which set forth conditions under which actions with
respect to devices or elements of design, referred to in par. (3),
would not be deemed prohibited acts.
Subsec. (a)(1). Pub. L. 101-549, 228(e)(1), inserted ''or part C of
this subchapter in the case of clean-fuel vehicles'' before ''(except''.
Subsec. (a)(2). Pub. L. 101-549, 228(a), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''for any
person to fail or refuse to permit access to or copying of records or to
fail to make reports or provide information, required under section 7542
of this title or for any person to fail or refuse to permit entry,
testing, or inspection authorized under section 7525(c) of this
title;''.
Subsec. (a)(3). Pub. L. 101-549, 228(b)(1), amended par. (3)
generally. Prior to amendment, par. (3) read as follows:
''(A) for any person to remove or render inoperative any device or
element of design installed on or in a motor vehicle or motor vehicle
engine in compliance with regulations under this subchapter prior to its
sale and delivery to the ultimate purchaser, or for any manufacturer or
dealer knowingly to remove or render inoperative any such device or
element of design after such sale and delivery to the ultimate
purchaser; or
''(B) for any person engaged in the business of repairing, servicing,
selling, leasing, or trading motor vehicles or motor vehicle engines, or
who operates a fleet of motor vehicles, knowingly to remove or render
inoperative any device or element of design installed on or in a motor
vehicle or motor vehicle engine in compliance with regulations under
this subchapter following its sale and delivery to the ultimate
purchaser; or''.
Subsec. (a)(4). Pub. L. 101-549, 228(e)(2), inserted ''part C of
this subchapter'' after ''section 7521 of this title''.
Subsec. (a)(4)(A). Pub. L. 101-549, 228(e)(3), inserted cl. (i)
designation and added cl. (ii).
Subsec. (a)(4)(B). Pub. L. 101-549, 228(e)(4), inserted at end ''or
the corresponding requirements of part C of this subchapter in the case
of clean fuel vehicles''.
Subsec. (a)(4)(C). Pub. L. 101-549, 228(e)(5), inserted ''and the
corresponding requirements of part C of this subchapter in the case of
clean fuel vehicles'' after ''section 7541 of this title''.
Subsec. (a)(4)(D). Pub. L. 101-549, 228(e)(6), inserted ''or the
corresponding requirements of part C of this subchapter in the case of
clean fuel vehicles'' before ''with respect to any vehicle''.
Subsec. (a)(5). Pub. L. 101-549, 228(e)(7), added par. (5).
Subsec. (c). Pub. L. 101-549, 230(6), struck out subsec. (c) which
related to exemptions to permit modifications of emission control
devices or systems.
1977 -- Subsec. (a). Pub. L. 95-190, 14(a)(68), in closing text
inserted a period after ''section 7549 of this title''.
Pub. L. 95-95, 206, 211(a), 218(a), 219(a), (b), inserted ''or for
any person to fail or refuse to permit entry, testing, or inspection
authorized under section 7525(c) of this title'' in par. (2),
designated existing provisions of par. (3) as subpar. (A) and added
subpar. (B), added subpars. (C) and (D) in par. (4), and, following
par. (4), inserted provisions that no action with respect to any
element of design referred to in par. (3) (including adjustment or
alteration of such element) be treated as a prohibited act under par.
(3) if the action is in accordance with section 7549 of this title and
that nothing in par. (3) be construed to require the use of
manufacturer parts in maintaining or repairing motor vehicles or motor
vehicle engines.
Subsec. (a)(3)(B). Pub. L. 95-190, 14(a)(66), substituted
''purchaser;'' for ''purchaser,''.
Subsec. (a)(4)(C). Pub. L. 95-190, 14(a)(67), inserted ''or'' after
''such person,''.
Subsec. (b)(3). Pub. L. 95-95, 218(d), substituted ''section 7521 of
this title'' for ''subsection (a) of this section'' and ''country which
is to receive such vehicle or engine'' for ''country of export''.
1970 -- Subsec. (a)(1). Pub. L. 91-604, 7(a)(1), struck out
reference to the manufacture of new motor vehicles or new motor vehicle
engines for sale, inserted provision for issuance by the Administrator
of regulations regarding exceptions in the case of importation of new
motor vehicles or new motor vehicle engines, and substituted
''importation'' into the United States of such units for ''importation
for sale or resale'' into the United States of such units.
Subsec. (a)(2). Pub. L. 91-604, 7(a)(2), substituted ''section 208''
for ''section 207'', both of which, for purposes of codification, are
translated as ''section 7542 of this title''.
Subsec. (a)(3). Pub. L. 91-604, 7(a)(3), 11(a)(2)(A), substituted
''part'' for ''subchapter'' and inserted provisions prohibiting the
knowing removal or inoperation by manufacturers or dealers of devices or
elements of design after sale and delivery to the ultimate purchaser.
Subsec. (a)(4). Pub. L. 91-604, 7(a)(4), added par. (4).
Subsec. (b)(1). Pub. L. 91-604, 7(a)(5), 15(c)(2), struck out
reference to the exemption of a class of new motor vehicles or new motor
vehicle engines, struck out the protection of the public health and
welfare from the enumeration of purposes for which exemptions may be
made, and substituted ''Administrator'' for ''Secretary''.
Subsec. (b)(2). Pub. L. 91-604, 7(a)(6), 11(a)(2)(A), 15(c)(2),
substituted ''Administrator'' for ''Secretary of Health, Education, and
Welfare'', ''importation or imported by any person'' for ''importation
by a manufacturer'', and ''part'' for ''subchapter''.
Subsec. (b)(3). Pub. L. 91-604, 7(a)(7)(A), inserted provision that,
if the country of export has emission standards which differ from the
standards prescribed under subsec. (a), such vehicle or engine must
comply with the standards of such country of export.
Subsec. (c). Pub. L. 91-604, 7(a)(7)(B), added subsec. (c).
1967 -- Subsec. (a). Pub. L. 90-148 substituted ''conformity with
regulations prescribed under this subchapter'' for ''conformity with
regulations prescribed under section 7521 of this title'' in par. (1).
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
/1/ So in original. Probably should be followed by a comma.
42 USC 7523. Actions to restrain violations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Jurisdiction
The district courts of the United States shall have jurisdiction to
restrain violations of section 7522(a) of this title.
(b) Actions brought by or in name of United States; subpenas
Actions to restrain such violations shall be brought by and in the
name of the United States. In any such action, subpenas for witnesses
who are required to attend a district court in any district may run into
any other district.
(July 14, 1955, ch. 360, title II, 204, as added Oct. 20, 1965, Pub.
L. 89-272, title I, 101(8), 79 Stat. 994, and amended Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 500; Dec. 31, 1970, Pub. L. 91-604,
7(b), 84 Stat. 1694; Aug. 7, 1977, Pub. L. 95-95, title II, 218(b), 91
Stat. 761.)
Section was formerly classified to section 1857f-3 of this title.
1977 -- Subsec. (a). Pub. L. 95-95 struck out ''paragraph (1), (2),
(3), or (4)'' after ''restrain violations of''.
1970 -- Subsec. (a). Pub. L. 91-604 inserted reference to par. (4)
of section 7522(a) of this title.
1967 -- Pub. L. 90-148 reenacted section without change.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Suits, actions, and other proceedings lawfully commenced by or
against the Administrator or any other officer or employee of the United
States in his official capacity or in relation to the discharge of his
official duties under act July 14, 1955, the Clean Air Act, as in effect
immediately prior to the enactment of Pub. L. 95-95 (Aug. 7, 1977),
not to abate by reason of the taking effect of Pub. L. 95-95, see
section 406(a) of Pub. L. 95-95, set out as an Effective Date of 1977
amendment note under section 7401 of this title.
42 USC 7524. Civil penalties
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Violations
Any person who violates sections /1/ 7522(a)(1), 7522(a)(4), or
7522(a)(5) of this title or any manufacturer or dealer who violates
section 7522(a)(3)(A) of this title shall be subject to a civil penalty
of not more than $25,000. Any person other than a manufacturer or
dealer who violates section 7522(a)(3)(A) of this title or any person
who violates section 7522(a)(3)(B) of this title shall be subject to a
civil penalty of not more than $2,500. Any such violation with respect
to paragraph (1), (3)(A), or (4) of section 7522(a) of this title shall
constitute a separate offense with respect to each motor vehicle or
motor vehicle engine. Any such violation with respect to section
7522(a)(3)(B) of this title shall constitute a separate offense with
respect to each part or component. Any person who violates section
7522(a)(2) of this title shall be subject to a civil penalty of not more
than $25,000 per day of violation.
(b) Civil actions
The Administrator may commence a civil action to assess and recover
any civil penalty under subsection (a) of this section, section 7545(d)
of this title, or section 7547(d) of this title. Any action under this
subsection may be brought in the district court of the United States for
the district in which the violation is alleged to have occurred or in
which the defendant resides or has the Administrator's principal place
of business, and the court shall have jurisdiction to assess a civil
penalty. In determining the amount of any civil penalty to be assessed
under this subsection, the court shall take into account the gravity of
the violation, the economic benefit or savings (if any) resulting from
the violation, the size of the violator's business, the violator's
history of compliance with this subchapter, action taken to remedy the
violation, the effect of the penalty on the violator's ability to
continue in business, and such other matters as justice may require. In
any such action, subpoenas for witnesses who are required to attend a
district court in any district may run into any other district.
(c) Administrative assessment of certain penalties
(1) Administrative penalty authority
In lieu of commencing a civil action under subsection (b) of this
section, the Administrator may assess any civil penalty prescribed in
subsection (a) of this section, section 7545(d) of this title, or
section 7547(d) of this title, except that the maximum amount of penalty
sought against each violator in a penalty assessment proceeding shall
not exceed $200,000, unless the Administrator and the Attorney General
jointly determine that a matter involving a larger penalty amount is
appropriate for administrative penalty assessment. Any such
determination by the Administrator and the Attorney General shall not be
subject to judicial review. Assessment of a civil penalty under this
subsection shall be by an order made on the record after opportunity for
a hearing in accordance with sections 554 and 556 of title 5. The
Administrator shall issue reasonable rules for discovery and other
procedures for hearings under this paragraph. Before issuing such an
order, the Administrator shall give written notice to the person to be
assessed an administrative penalty of the Administrator's proposal to
issue such order and provide such person an opportunity to request such
a hearing on the order, within 30 days of the date the notice is
received by such person. The Administrator may compromise, or remit,
with or without conditions, any administrative penalty which may be
imposed under this section.
(2) Determining amount
In determining the amount of any civil penalty assessed under this
subsection, the Administrator shall take into account the gravity of the
violation, the economic benefit or savings (if any) resulting from the
violation, the size of the violator's business, the violator's history
of compliance with this subchapter, action taken to remedy the
violation, the effect of the penalty on the violator's ability to
continue in business, and such other matters as justice may require.
(3) Effect of Administrator's action
(A) Action by the Administrator under this subsection shall not
affect or limit the Administrator's authority to enforce any provision
of this chapter; except that any violation,
(i) with respect to which the Administrator has commenced and is
diligently prosecuting an action under this subsection, or
(ii) for which the Administrator has issued a final order not subject
to further judicial review and the violator has paid a penalty
assessment under this subsection,
shall not be the subject of civil penalty action under subsection (b)
of this section.
(B) No action by the Administrator under this subsection shall affect
any person's obligation to comply with any section of this chapter.
(4) Finality of order
An order issued under this subsection shall become final 30 days
after its issuance unless a petition for judicial review is filed under
paragraph (5).
(5) Judicial review
Any person against whom a civil penalty is assessed in accordance
with this subsection may seek review of the assessment in the United
States District Court for the District of Columbia, or for the district
in which the violation is alleged to have occurred, in which such person
resides, or where such person's principal place of business is located,
within the 30-day period beginning on the date a civil penalty order is
issued. Such person shall simultaneously send a copy of the filing by
certified mail to the Administrator and the Attorney General. The
Administrator shall file in the court a certified copy, or certified
index, as appropriate, of the record on which the order was issued
within 30 days. The court shall not set aside or remand any order
issued in accordance with the requirements of this subsection unless
there is not substantial evidence in the record, taken as a whole, to
support the finding of a violation or unless the Administrator's
assessment of the penalty constitutes an abuse of discretion, and the
court shall not impose additional civil penalties unless the
Administrator's assessment of the penalty constitutes an abuse of
discretion. In any proceedings, the United States may seek to recover
civil penalties assessed under this section.
(6) Collection
If any person fails to pay an assessment of a civil penalty imposed
by the Administrator as provided in this subsection --
(A) after the order making the assessment has become final, or
(B) after a court in an action brought under paragraph (5) has
entered a final judgment in favor of the Administrator,
the Administrator shall request the Attorney General to bring a civil
action in an appropriate district court to recover the amount assessed
(plus interest at rates established pursuant to section 6621(a)(2) of
title 26 from the date of the final order or the date of the final
judgment, as the case may be). In such an action, the validity, amount,
and appropriateness of the penalty shall not be subject to review. Any
person who fails to pay on a timely basis the amount of an assessment of
a civil penalty as described in the first sentence of this paragraph
shall be required to pay, in addition to that amount and interest, the
United States' enforcement expenses, including attorneys fees and costs
for collection proceedings, and a quarterly nonpayment penalty for each
quarter during which such failure to pay persists. The nonpayment
penalty shall be in an amount equal to 10 percent of the aggregate
amount of that person's penalties and nonpayment penalties which are
unpaid as of the beginning of such quarter.
(July 14, 1955, ch. 360, title I, 205, as added Oct. 20, 1965, Pub.
L. 89-272, title I, 101(8), 79 Stat. 994, and amended Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 500; Dec. 31, 1970, Pub. L. 91-604,
7(c), 84 Stat. 1694; Aug. 7, 1977, Pub. L. 95-95, title II, 219(c), 91
Stat. 762; Nov. 15, 1990, Pub. L. 101-549, title II, 228(c), 104 Stat.
2508.)
Section was formerly classified to section 1857f-4 of this title.
1990 -- Pub. L. 101-549 amended section generally. Prior to
amendment, section read as follows: ''Any person who violates paragraph
(1), (2), or (4) of section 7522(a) of this title or any manufacturer,
dealer, or other person who violates paragraph (3)(A) of section 7522(a)
of this title shall be subject to a civil penalty of not more than
$10,000. Any person who violates paragraph (3)(B) of such section
7522(a) shall be subject to a civil penalty of not more than $2,500.
Any such violation with respect to paragraph (1), (3), or (4) of section
7522(a) of this title shall constitute a separate offense with respect
to each motor vehicle or motor vehicle engine.''
1977 -- Pub. L. 95-95 substituted ''Any person who violates
paragraph (1), (2), or (4) of section 7522(a) of this title, or any
manufacturer, dealer, or other person who violates paragraph (3)(A) of
section 7522(a) of this title'' for ''Any person who violates paragraph
(1), (2), (3), or (4) of section 7522(a) of this title'' in provisions
covering the civil penalty of $10,000, and inserted provisions for a
civil penalty of not more than $2,500 for violations of par. (3)(B) of
section 7522(a) of this title.
1970 -- Pub. L. 91-604 increased the upper limit of the allowable
fine from ''$1,000'' to ''$10,000''.
1967 -- Pub. L. 90-148 reenacted section without change.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
/1/ So in original. Probably should be ''section''.
42 USC 7525. Motor vehicle and motor vehicle engine compliance testing
and certification
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Testing and issuance of certificate of conformity
(1) The Administrator shall test, or require to be tested in such
manner as he deems appropriate, any new motor vehicle or new motor
vehicle engine submitted by a manufacturer to determine whether such
vehicle or engine conforms with the regulations prescribed under section
7521 of this title. If such vehicle or engine conforms to such
regulations, the Administrator shall issue a certificate of conformity
upon such terms, and for such period (not in excess of one year), as he
may prescribe. In the case of any original equipment manufacturer (as
defined by the Administrator in regulations promulgated before November
15, 1990) of vehicles or vehicle engines whose projected sales in the
United States for any model year (as determined by the Administrator)
will not exceed 300, the Administrator shall not require, for purposes
of determining compliance with regulations under section 7521 of this
title for the useful life of the vehicle or engine, operation of any
vehicle or engine manufactured during such model year for more than
5,000 miles or 160 hours, respectively, unless the Administrator, by
regulation, prescribes otherwise. The Administrator shall apply any
adjustment factors that the Administrator deems appropriate to assure
that each vehicle or engine will comply during its useful life (as
determined under section 7521(d) of this title) with the regulations
prescribed under section 7521 of this title.
(2) The Administrator shall test any emission control system
incorporated in a motor vehicle or motor vehicle engine submitted to him
by any person, in order to determine whether such system enables such
vehicle or engine to conform to the standards required to be prescribed
under section 7521(b) of this title. If the Administrator finds on the
basis of such tests that such vehicle or engine conforms to such
standards, the Administrator shall issue a verification of compliance
with emission standards for such system when incorporated in vehicles of
a class of which the tested vehicle is representative. He shall inform
manufacturers and the National Academy of Sciences, and make available
to the public, the results of such tests. Tests under this paragraph
shall be conducted under such terms and conditions (including
requirements for preliminary testing by qualified independent
laboratories) as the Administrator may prescribe by regulations.
(3)(A) A certificate of conformity may be issued under this section
only if the Administrator determines that the manufacturer (or in the
case of a vehicle or engine for import, any person) has established to
the satisfaction of the Administrator that any emission control device,
system, or element of design installed on, or incorporated in, such
vehicle or engine conforms to applicable requirements of section
7521(a)(4) of this title.
(B) The Administrator may conduct such tests and may require the
manufacturer (or any such person) to conduct such tests and provide such
information as is necessary to carry out subparagraph (A) of this
paragraph. Such requirements shall include a requirement for prompt
reporting of the emission of any unregulated pollutant from a system,
device, or element of design if such pollutant was not emitted, or was
emitted in significantly lesser amounts, from the vehicle or engine
without use of the system, device, or element of design.
(4)(A) Not later than 12 months after November 15, 1990, the
Administrator shall revise the regulations promulgated under this
subsection to add test procedures capable of determining whether model
year 1994 and later model year light-duty vehicles and light-duty
trucks, when properly maintained and used, will pass the inspection
methods and procedures established under section 7541(b) of this title
for that model year, under conditions reasonably likely to be
encountered in the conduct of inspection and maintenance programs, but
which those programs cannot reasonably influence or control. The
conditions shall include fuel characteristics, ambient temperature, and
short (30 minutes or less) waiting periods before tests are conducted.
The Administrator shall not grant a certificate of conformity under this
subsection for any 1994 or later model year vehicle or engine that the
Administrator concludes cannot pass the test procedures established
under this paragraph.
(B) From time to time, the Administrator may revise the regulations
promulgated under subparagraph (A), as the Administrator deems
appropriate.
(b) Testing procedures; hearing; judicial review; additional
evidence
(1) In order to determine whether new motor vehicles or new motor
vehicle engines being manufactured by a manufacturer do in fact conform
with the regulations with respect to which the certificate of conformity
was issued, the Administrator is authorized to test such vehicles or
engines. Such tests may be conducted by the Administrator directly or,
in accordance with conditions specified by the Administrator, by the
manufacturer.
(2)(A)(i) If, based on tests conducted under paragraph (1) on a
sample of new vehicles or engines covered by a certificate of
conformity, the Administrator determines that all or part of the
vehicles or engines so covered do not conform with the regulations with
respect to which the certificate of conformity was issued and with the
requirements of section 7521(a)(4) of this title, he may suspend or
revoke such certificate in whole or in part, and shall so notify the
manufacturer. Such suspension or revocation shall apply in the case of
any new motor vehicles or new motor vehicle engines manufactured after
the date of such notification (or manufactured before such date if still
in the hands of the manufacturer), and shall apply until such time as
the Administrator finds that vehicles and engines manufactured by the
manufacturer do conform to such regulations and requirements. If,
during any period of suspension or revocation, the Administrator finds
that a vehicle or engine actually conforms to such regulations and
requirements, he shall issue a certificate of conformity applicable to
such vehicle or engine.
(ii) If, based on tests conducted under paragraph (1) on any new
vehicle or engine, the Administrator determines that such vehicle or
engine does not conform with such regulations and requirements, he may
suspend or revoke such certificate insofar as it applies to such vehicle
or engine until such time as he finds such vehicle or engine actually so
conforms with such regulations and requirements, and he shall so notify
the manufacturer.
(B)(i) At the request of any manufacturer the Administrator shall
grant such manufacturer a hearing as to whether the tests have been
properly conducted or any sampling methods have been properly applied,
and make a determination on the record with respect to any suspension or
revocation under subparagraph (A); but suspension or revocation under
subparagraph (A) shall not be stayed by reason of such hearing.
(ii) In any case of actual controversy as to the validity of any
determination under clause (i), the manufacturer may at any time prior
to the 60th day after such determination is made file a petition with
the United States court of appeals for the circuit wherein such
manufacturer resides or has his principal place of business for a
judicial review of such determination. A copy of the petition shall be
forthwith transmitted by the clerk of the court to the Administrator or
other officer designated by him for that purpose. The Administrator
thereupon shall file in the court the record of the proceedings on which
the Administrator based his determination, as provided in section 2112
of title 28.
(iii) If the petitioner applies to the court for leave to adduce
additional evidence, and shows to the satisfaction of the court that
such additional evidence is material and that there were reasonable
grounds for the failure to adduce such evidence in the proceeding before
the Administrator, the court may order such additional evidence (and
evidence in rebuttal thereof) to be taken before the Administrator, in
such manner and upon such terms and conditions as the court may deem
proper. The Administrator may modify his findings as to the facts, or
make new findings, by reason of the additional evidence so taken and he
shall file such modified or new findings, and his recommendation, if
any, for the modification or setting aside of his original
determination, with the return of such additional evidence.
(iv) Upon the filing of the petition referred to in clause (ii), the
court shall have jurisdiction to review the order in accordance with
chapter 7 of title 5 and to grant appropriate relief as provided in such
chapter.
(c) Inspection
For purposes of enforcement of this section, officers or employees
duly designated by the Administrator, upon presenting appropriate
credentials to the manufacturer or person in charge, are authorized (1)
to enter, at reasonable times, any plant or other establishment of such
manufacturer, for the purpose of conducting tests of vehicles or engines
in the hands of the manufacturer, or (2) to inspect, at reasonable
times, records, files, papers, processes, controls, and facilities used
by such manufacturer in conducting tests under regulations of the
Administrator. Each such inspection shall be commenced and completed
with reasonable promptness.
(d) Rules and regulations
The Administrator shall by regulation establish methods and
procedures for making tests under this section.
(e) Publication of test results
The Administrator shall make available to the public the results of
his tests of any motor vehicle or motor vehicle engine submitted by a
manufacturer under subsection (a) of this section as promptly as
possible after December 31, 1970, and at the beginning of each model
year which begins thereafter. Such results shall be described in such
nontechnical manner as will reasonably disclose to prospective ultimate
purchasers of new motor vehicles and new motor vehicle engines the
comparative performance of the vehicles and engines tested in meeting
the standards prescribed under section 7521 of this title.
(f) High altitude regulations
All light duty /1/ vehicles and engines manufactured during or after
model year 1984 and all light-duty trucks manufactured during or after
model year 1995 shall comply with the requirements of section 7521 of
this title regardless of the altitude at which they are sold.
(g) Nonconformance penalty
(1) In the case of any class or category of heavy-duty vehicles or
engines to which a standard promulgated under section 7521(a) of this
title applies, except as provided in paragraph (2), a certificate of
conformity shall be issued under subsection (a) of this section and
shall not be suspended or revoked under subsection (b) of this section
for such vehicles or engines manufactured by a manufacturer
notwithstanding the failure of such vehicles or engines to meet such
standard if such manufacturer pays a nonconformance penalty as provided
under regulations promulgated by the Administrator after notice and
opportunity for public hearing. In the case of motorcycles to which
such a standard applies, such a certificate may be issued
notwithstanding such failure if the manufacturer pays such a penalty.
(2) No certificate of conformity may be issued under paragraph (1)
with respect to any class or category of vehicle or engine if the degree
by which the manufacturer fails to meet any standard promulgated under
section 7521(a) of this title with respect to such class or category
exceeds the percentage determined under regulations promulgated by the
Administrator to be practicable. Such regulations shall require such
testing of vehicles or engines being produced as may be necessary to
determine the percentage of the classes or categories of vehicles or
engines which are not in compliance with the regulations with respect to
which a certificate of conformity was issued and shall be promulgated
not later than one year after August 7, 1977.
(3) The regulations promulgated under paragraph (1) shall, not later
than one year after August 7, 1977, provide for nonconformance penalties
in amounts determined under a formula established by the Administrator.
Such penalties under such formula --
(A) may vary from pollutant-to-pollutant;
(B) may vary by class or category or vehicle or engine;
(C) shall take into account the extent to which actual emissions of
any air pollutant exceed allowable emissions under the standards
promulgated under section 7521 of this title;
(D) shall be increased periodically in order to create incentives for
the development of production vehicles or engines which achieve the
required degree of emission reduction; and
(E) shall remove any competitive disadvantage to manufacturers whose
engines or vehicles achieve the required degree of emission reduction
(including any such disadvantage arising from the application of
paragraph (4)).
(4) In any case in which a certificate of conformity has been issued
under this subsection, any warranty required under section 7541(b)(2) of
this title and any action under section 7541(c) of this title shall be
required to be effective only for the emission levels which the
Administrator determines that such certificate was issued and not for
the emission levels required under the applicable standard.
(5) The authorities of section 7542(a) of this title shall apply,
subject to the conditions of section 7542(b) /2/ of this title, for
purposes of this subsection.
(h) Review and revision of regulations
Within 18 months after November 15, 1990, the Administrator shall
review and revise as necessary the regulations under subsection /3/ (a)
and (b) of this section regarding the testing of motor vehicles and
motor vehicle engines to insure that vehicles are tested under
circumstances which reflect the actual current driving conditions under
which motor vehicles are used, including conditions relating to fuel,
temperature, acceleration, and altitude.
(July 14, 1955, ch. 360, title II, 206, as added Dec. 31, 1970, Pub.
L. 91-604, 8(a), 84 Stat. 1694, and amended Aug. 7, 1977, Pub. L.
95-95, title II, 213(a), 214(b), (c), 220, 224(e), 91 Stat. 758-760,
762, 768; Nov. 16, 1977, Pub. L. 95-190, 14(a)(69), 91 Stat. 1403;
Nov. 15, 1990, Pub. L. 101-549, title II, 208, 230(7), (8), 104 Stat.
2483, 2529.)
Section 7542 of this title, referred to in subsec. (g)(5), was
amended generally by Pub. L. 101-549, title II, 211, Nov. 15, 1990,
104 Stat. 2487, and provisions formerly contained in section 7542(b) of
this title are contained in section 7542(c).
Section was formerly classified to section 1857f-5 of this title.
A prior section 206 of act July 14, 1955, which was classified to a
prior section 1857f-5 of this title and related to the testing of motor
vehicles and motor vehicle engines, was repealed by Pub. L. 91-604.
1990 -- Subsec. (a)(1). Pub. L. 101-549, 208(b), inserted new third
sentence and struck out former third sentence which read as follows:
''In the case of any manufacturer of vehicles or vehicle engines whose
projected sales in the United States for any model year (as determined
by the Administrator) will not exceed three hundred, the regulations
prescribed by the Administrator concerning testing by the manufacturer
for purposes of determining compliance with regulations under section
7521 of this title for the useful life of the vehicle or engine shall
not require operation of any vehicle or engine manufactured during such
model year for more than five thousand miles or one hundred and sixty
hours, respectively, but the Administrator shall apply such adjustment
factors as he deems appropriate to assure that each such vehicle or
engine will comply during its useful life (as determined under section
7521(d) of this title) with the regulations prescribed under section
7521 of this title.''
Subsec. (a)(4). Pub. L. 101-549, 208(a), added par. (4).
Subsec. (e). Pub. L. 101-549, 230(7), struck out ''announce in the
Federal Register and'' after ''The Administrator shall''.
Subsec. (f). Pub. L. 101-549, 230(8), struck out par. (1)
designation before ''All light duty vehicles'', inserted reference to
all light-duty trucks manufactured during or after model year 1995, and
struck out par. (2) which required the Administrator to report to
Congress by Oct. 1, 1978, on the economic impact and technological
feasibility of the requirements of former par. (1).
Subsec. (h). Pub. L. 101-549, 208(c), added subsec. (h).
1977 -- Subsec. (a)(1). Pub. L. 95-95, 220, inserted provisions
covering testing by small manufacturers.
Subsec. (a)(3). Pub. L. 95-95, 214(b), added par. (3).
Subsec. (b)(2)(A)(i). Pub. L. 95-95, 214(c)(1), (2), substituted
''certificate of conformity was issued and with the requirements of
section 7521(a)(4) of this title, he may suspend'' for ''certificate of
conformity was issued, he may suspend'' and ''such regulations and
requirements'' for ''such regulations''.
Subsec. (b)(2)(A)(ii). Pub. L. 95-95, 214(c)(2), substituted ''such
regulations and requirements'' for ''such regulations''.
Subsec. (f). Pub. L. 95-95, 213(a), added subsec. (f).
Subsec. (g). Pub. L. 95-95, 224(e), added subsec. (g).
Subsec. (g)(3)(D). Pub. L. 95-190 inserted ''shall'' before ''be''.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Section 8(b) of Pub. L. 91-604 provided that: ''The amendments made
by this section (enacting this section and section 7541 of this title)
shall not apply to vehicles or engines imported into the United States
before the sixtieth day after the date of enactment of this Act (Dec.
31, 1970).''
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
26 section 4064.
/1/ So in original. Probably should be ''light-duty''.
/2/ See References in Text note below.
/3/ So in original. Probably should be ''subsections''.
42 USC 7541. Compliance by vehicles and engines in actual use
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Warranty; certification; payment of replacement costs of parts,
devices, or components designed for emission control
(1) Effective with respect to vehicles and engines manufactured in
model years beginning more than 60 days after December 31, 1970, the
manufacturer of each new motor vehicle and new motor vehicle engine
shall warrant to the ultimate purchaser and each subsequent purchaser
that such vehicle or engine is (A) designed, built, and equipped so as
to conform at the time of sale with applicable regulations under section
7521 of this title, and (B) free from defects in materials and
workmanship which cause such vehicle or engine to fail to conform with
applicable regulations for its useful life (as determined under section
7521(d) of this title).
(2) In the case of a motor vehicle part or motor vehicle engine part,
the manufacturer or rebuilder of such part may certify that use of such
part will not result in a failure of the vehicle or engine to comply
with emission standards promulgated under section 7521 of this title.
Such certification shall be made only under such regulations as may be
promulgated by the Administrator to carry out the purposes of subsection
(b) of this section. The Administrator shall promulgate such
regulations no later than two years following August 7, 1977.
(3) The cost of any part, device, or component of any light-duty
vehicle that is designed for emission control and which in the
instructions issued pursuant to subsection (c)(3) of this section is
scheduled for replacement during the useful life of the vehicle in order
to maintain compliance with regulations under section 7521 of this
title, the failure of which shall not interfere with the normal
performance of the vehicle, and the expected retail price of which,
including installation costs, is greater than 2 percent of the suggested
retail price of such vehicle, shall be borne or reimbursed at the time
of replacement by the vehicle manufacturer and such replacement shall be
provided without cost to the ultimate purchaser, subsequent purchaser,
or dealer. The term ''designed for emission control'' as used in the
preceding sentence means a catalytic converter, thermal reactor, or
other component installed on or in a vehicle for the sole or primary
purpose of reducing vehicle emissions (not including those vehicle
components which were in general use prior to model year 1968 and the
primary function of which is not related to emission control).
(b) Testing methods and procedures
If the Administrator determines that (i) there are available testing
methods and procedures to ascertain whether, when in actual use
throughout its useful life (as determined under section 7521(d) of this
title), each vehicle and engine to which regulations under section 7521
of this title apply complies with the emission standards of such
regulations, (ii) such methods and procedures are in accordance with
good engineering practices, and (iii) such methods and procedures are
reasonably capable of being correlated with tests conducted under
section 7525(a)(1) of this title, then --
(1) he shall establish such methods and procedures by regulation, and
(2) at such time as he determines that inspection facilities or
equipment are available for purposes of carrying out testing methods and
procedures established under paragraph (1), he shall prescribe
regulations which shall require manufacturers to warrant the emission
control device or system of each new motor vehicle or new motor vehicle
engine to which a regulation under section 7521 of this title applies
and which is manufactured in a model year beginning after the
Administrator first prescribes warranty regulations under this paragraph
(2). The warranty under such regulations shall run to the ultimate
purchaser and each subsequent purchaser and shall provide that if --
(A) the vehicle or engine is maintained and operated in accordance
with instructions under subsection (c)(3) of this section,
(B) it fails to conform at any time during its useful life (as
determined under section 7521(d) of this title) to the regulations
prescribed under section 7521 of this title, and
(C) such nonconformity results in the ultimate purchaser (or any
subsequent purchaser) of such vehicle or engine having to bear any
penalty or other sanction (including the denial of the right to use such
vehicle or engine) under State or Federal law,
then such manufacturer shall remedy such nonconformity under such
warranty with the cost thereof to be borne by the manufacturer. No such
warranty shall be invalid on the basis of any part used in the
maintenance or repair of a vehicle or engine if such part was certified
as provided under subsection (a)(2) of this section.
For purposes of the warranty under this subsection, for the period
after twenty-four months or twenty-four thousand miles (whichever first
occurs) the term ''emission control device or system'' means a catalytic
converter, thermal reactor, or other component installed on or in a
vehicle for the sole or primary purpose of reducing vehicle emissions.
Such term shall not include those vehicle components which were in
general use prior to model year 1968.
(c) Nonconforming vehicles; plan for remedying nonconformity;
instructions for maintenance and use; label or tag
Effective with respect to vehicles and engines manufactured during
model years beginning more than 60 days after December 31, 1970 --
(1) If the Administrator determines that a substantial number of any
class or category of vehicles or engines, although properly maintained
and used, do not conform to the regulations prescribed under section
7521 of this title, when in actual use throughout their useful life (as
determined under section 7521(d) of this title), he shall immediately
notify the manufacturer thereof of such nonconformity, and he shall
require the manufacturer to submit a plan for remedying the
nonconformity of the vehicles or engines with respect to which such
notification is given. The plan shall provide that the nonconformity of
any such vehicles or engines which are properly used and maintained will
be remedied at the expense of the manufacturer. If the manufacturer
disagrees with such determination of nonconformity and so advises the
Administrator, the Administrator shall afford the manufacturer and other
interested persons an opportunity to present their views and evidence in
support thereof at a public hearing. Unless, as a result of such
hearing the Administrator withdraws such determination of nonconformity,
he shall, within 60 days after the completion of such hearing, order the
manufacturer to provide prompt notification of such nonconformity in
accordance with paragraph (2).
(2) Any notification required by paragraph (1) with respect to any
class or category of vehicles or engines shall be given to dealers,
ultimate purchasers, and subsequent purchasers (if known) in such manner
and containing such information as the Administrator may by regulations
require.
(3)(A) The manufacturer shall furnish with each new motor vehicle or
motor vehicle engine written instructions for the proper maintenance and
use of the vehicle or engine by the ultimate purchaser and such
instructions shall correspond to regulations which the Administrator
shall promulgate. The manufacturer shall provide in boldface type on
the first page of the written maintenance instructions notice that
maintenance, replacement, or repair of the emission control devices and
systems may be performed by any automotive repair establishment or
individual using any automotive part which has been certified as
provided in subsection (a)(2) of this section.
(B) The instruction under subparagraph (A) of this paragraph shall
not include any condition on the ultimate purchaser's using, in
connection with such vehicle or engine, any component or service (other
than a component or service provided without charge under the terms of
the purchase agreement) which is identified by brand, trade, or
corporate name; or directly or indirectly distinguishing between
service performed by the franchised dealers of such manufacturer or any
other service establishments with which such manufacturer has a
commercial relationship, and service performed by independent automotive
repair facilities with which such manufacturer has no commercial
relationship; except that the prohibition of this subsection may be
waived by the Administrator if --
(i) the manufacturer satisfies the Administrator that the vehicle or
engine will function properly only if the component or service so
identified is used in connection with such vehicle or engine, and
(ii) the Administrator finds that such a waiver is in the public
interest.
(C) In addition, the manufacturer shall indicate by means of a label
or tag permanently affixed to such vehicle or engine that such vehicle
or engine is covered by a certificate of conformity issued for the
purpose of assuring achievement of emissions standards prescribed under
section 7521 of this title. Such label or tag shall contain such other
information relating to control of motor vehicle emissions as the
Administrator shall prescribe by regulation.
(4) Intermediate in-use standards. --
(A) Model years 1994 and 1995. -- For light-duty trucks of up to
6,000 lbs. gross vehicle weight rating (GVWR) and light-duty vehicles
which are subject to standards under table G of section 7521(g)(1) of
this title in model years 1994 and 1995 (40 percent of the
manufacturer's sales volume in model year 1994 and 80 percent in model
year 1995), the standards applicable to NMHC, CO, and NOx for purposes
of this subsection shall be those set forth in table A below in lieu of
the standards for such air pollutants otherwise applicable under this
subchapter.
(B) Model years 1996 and thereafter. -- (i) In the model years 1996
and 1997, light-duty trucks (LDTs) up to 6,000 lbs. gross vehicle
weight rating (GVWR) and light-duty vehicles which are not subject to
final in-use standards under paragraph (5) (60 percent of the
manufacturer's sales volume in model year 1996 and 20 percent in model
year 1997) shall be subject to the standards set forth in table A of
subparagraph (A) for NMHC, CO, and NOx for purposes of this subsection
in lieu of those set forth in paragraph (5).
(ii) For LDTs of more than 6,000 lbs. GVWR --
(I) in model year 1996 which are subject to the standards set forth
in Table H of section 7521(h) of this title (50%);
(II) in model year 1997 (100%); and
(III) in model year 1998 which are not subject to final in-use
standards under paragraph (5) (50%);
the standards for NMHC, CO, and NOx for purposes of this subsection
shall be those set forth in Table B below in lieu of the standards for
such air pollutants otherwise applicable under this subchapter.
(C) Useful life. -- In the case of the in-use standards applicable
under this paragraph, for purposes of applying this subsection, the
applicable useful life shall be 5 years or 50,000 miles or the
equivalent (whichever first occurs).
(5) Final in-use standards. -- (A) After the model year 1995, for
purposes of applying this subsection, in the case of the percentage
specified in the implementation schedule below of each manufacturer's
sales volume of light-duty trucks of up to 6,000 lbs. gross vehicle
weight rating (GVWR) and light duty /1/ vehicles, the standards for
NMHC, CO, and NOx shall be as provided in Table G in section 7521(g) of
this title, except that in applying the standards set forth in Table G
for purposes of determining compliance with this subsection, the
applicable useful life shall be (i) 5 years or 50,000 miles (or the
equivalent) whichever first occurs in the case of standards applicable
for purposes of certification at 50,000 miles; and (ii) 10 years or
100,000 miles (or the equivalent), whichever first occurs in the case of
standards applicable for purposes of certification at 100,000 miles,
except that no testing shall be done beyond 7 years or 75,000 miles, or
the equivalent whichever first occurs.
Schedule for Implementation of Final In-Use Standards
(B) After the model year 1997, for purposes of applying this
subsection, in the case of the percentage specified in the
implementation schedule below of each manufacturer's sales volume of
light-duty trucks of more than 6,000 lbs. gross vehicle weight rating
(GVWR), the standards for NMHC, CO, and NOx shall be as provided in
Table H in section 7521(h) of this title, except that in applying the
standards set forth in Table H for purposes of determining compliance
with this subsection, the applicable useful life shall be (i) 5 years or
50,000 miles (or the equivalent) whichever first occurs in the case of
standards applicable for purposes of certification at 50,000 miles; and
(ii) 11 years or 120,000 miles (or the equivalent), whichever first
occurs in the case of standards applicable for purposes of certification
at 120,000 miles, except that no testing shall be done beyond 7 years or
90,000 miles (or the equivalent) whichever first occurs.
Schedule for Implementation of Final In-Use Standards
(6) Diesel vehicles; in-use useful life and testing. -- (A) In the
case of diesel-fueled light-duty trucks up to 6,000 lbs. GVWR and
light-duty vehicles, the useful life for purposes of determining in-use
compliance with the standards under section 7521(g) of this title for
NOx shall be a period of 10 years or 100,000 miles (or the equivalent),
whichever first occurs, in the case of standards applicable for purposes
of certification at 100,000 miles, except that testing shall not be done
for a period beyond 7 years or 75,000 miles (or the equivalent)
whichever first occurs.
(B) In the case of diesel-fueled light-duty trucks of 6,000 lbs.
GVWR or more, the useful life for purposes of determining in-use
compliance with the standards under section 7521(h) of this title for
NOx shall be a period of 11 years or 120,000 miles (or the equivalent),
whichever first occurs, in the case of standards applicable for purposes
of certification at 120,000 miles, except that testing shall not be done
for a period beyond 7 years or 90,000 miles (or the equivalent)
whichever first occurs.
(d) Dealer costs borne by manufacturer
Any cost obligation of any dealer incurred as a result of any
requirement imposed by subsection (a), (b), or (c) of this section shall
be borne by the manufacturer. The transfer of any such cost obligation
from a manufacturer to any dealer through franchise or other agreement
is prohibited.
(e) Cost statement
If a manufacturer includes in any advertisement a statement
respecting the cost or value of emission control devices or systems,
such manufacturer shall set forth in such statement the cost or value
attributed to such devices or systems by the Secretary of Labor (through
the Bureau of Labor Statistics). The Secretary of Labor, and his
representatives, shall have the same access for this purpose to the
books, documents, papers, and records of a manufacturer as the
Comptroller General has to those of a recipient of assistance for
purposes of section 7611 of this title.
(f) Inspection after sale to ultimate purchaser
Any inspection of a motor vehicle or a motor vehicle engine for
purposes of subsection (c)(1) of this section, after its sale to the
ultimate purchaser, shall be made only if the owner of such vehicle or
engine voluntarily permits such inspection to be made, except as may be
provided by any State or local inspection program.
(g) Replacement and maintenance costs borne by owner
For the purposes of this section, the owner of any motor vehicle or
motor vehicle engine warranted under this section is responsible in the
proper maintenance of such vehicle or engine to replace and to maintain,
at his expense at any service establishment or facility of his choosing,
such items as spark plugs, points, condensers, and any other part, item,
or device related to emission control (but not designed for emission
control under the terms of the last sentence of subsection (a)(3) of
this section)), /2/ unless such part, item, or device is covered by any
warranty not mandated by this chapter.
(h) Dealer certification
(1) Upon the sale of each new light-duty motor vehicle by a dealer,
the dealer shall furnish to the purchaser a certificate that such motor
vehicle conforms to the applicable regulations under section 7521 of
this title, including notice of the purchaser's rights under paragraph
(2).
(2) If at any time during the period for which the warranty applies
under subsection (b) of this section, a motor vehicle fails to conform
to the applicable regulations under section 7521 of this title as
determined under subsection (b) of this section such nonconformity shall
be remedied by the manufacturer at the cost of the manufacturer pursuant
to such warranty as provided in subsection (b)(2) of this section
(without regard to subparagraph (C) thereof).
(3) Nothing in section 7543(a) of this title shall be construed to
prohibit a State from testing, or requiring testing of, a motor vehicle
after the date of sale of such vehicle to the ultimate purchaser (except
that no new motor vehicle manufacturer or dealer may be required to
conduct testing under this paragraph).
(July 14, 1955, ch. 360, title II, 207, as added Dec. 31, 1970, Pub.
L. 91-604, 8(a), 84 Stat. 1696, and amended Aug. 7, 1977, Pub. L.
95-95, title II, 205, 208-210, 212, 91 Stat. 754-756, 758; Nov. 16,
1977, Pub. L. 95-190, 14(a)(70)-(72), 91 Stat. 1403; Nov. 15, 1990,
Pub. L. 101-549, title II, 209, 210, 230(9), 104 Stat. 2484, 2485,
2529.)
Pub. L. 101-549, title II, 209, Nov. 15, 1990, 104 Stat. 2484,
provided that effective with respect to new motor vehicles and engines
manufactured in the model year 1995 and thereafter, this section is
amended as follows:
(1) Amend subsection (a)(1) of this section by adding the following
at the end thereof: ''In the case of vehicles and engines manufactured
in the model year 1995 and thereafter such warranty shall require that
the vehicle or engine is free from any such defects for the warranty
period provided under subsection (i) of this section.''
(2) Strike out ''useful life (as determined under section 7521(d) of
this title)'' each place it appears in subsection (b) of this section
and insert ''the warranty period (as determined under subsection (i) of
this section)''.
(3) Strike so much of subsection (b) of this section as follows the
third sentence thereof.
(4) Add the following new subsection at the end thereof:
(i) Warranty period
(1) In general
For purposes of subsection (a)(1) of this section and subsection (b)
of this section, the warranty period, effective with respect to new
light-duty trucks and new light-duty vehicles and engines, manufactured
in the model year 1995 and thereafter, shall be the first 2 years or
24,000 miles of use (whichever first occurs), except as provided in
paragraph (2). For purposes of subsection (a)(1) of this section and
subsection (b) of this section, for other vehicles and engines the
warranty period shall be the period established by the Administrator by
regulation (promulgated prior to November 15, 1990) for such purposes
unless the Administrator subsequently modifies such regulation.
(2) Specified major emission control components
In the case of a specified major emission control component, the
warranty period for new light-duty trucks and new light-duty vehicles
and engines manufactured in the model year 1995 and thereafter for
purposes of subsection (a)(1) of this section and subsection (b) of this
section shall be 8 years or 80,000 miles of use (whichever first
occurs). As used in this paragraph, the term ''specified major emission
control component'' means only a catalytic converter, an electronic
emissions control unit, and an onboard emissions diagnostic device,
except that the Administrator may designate any other pollution control
device or component as a specified major emission control component if
--
(A) the device or component was not in general use on vehicles and
engines manufactured prior to the model year 1990; and
(B) the Administrator determines that the retail cost (exclusive of
installation costs) of such device or component exceeds $200 (in 1989
dollars), adjusted for inflation or deflation as calculated by the
Administrator at the time of such determination.
For purposes of this paragraph, the term ''onboard emissions
diagnostic device'' means any device installed for the purpose of
storing or processing emissions related diagnostic information, but not
including any parts or other systems which it monitors except specified
major emissions control components. Nothing in this chapter shall be
construed to provide that any part (other than a part referred to in the
preceding sentence) shall be required to be warranted under this chapter
for the period of 8 years or 80,000 miles referred to in this paragraph.
(3) Instructions
Subparagraph (A) of subsection (b)(2) of this section shall apply
only where the Administrator has made a determination that the
instructions concerned conform to the requirements of subsection (c)(3)
of this section.
Section was formerly classified to section 1857f-5a of this title.
A prior section 207 of act July 14, 1955, was renumbered section 208
by Pub. L. 91-604 and is classified to section 7542 of this title.
1990 -- Subsec. (c)(4) to (6). Pub. L. 101-549, 210, added pars.
(4) to (6).
Subsec. (g). Pub. L. 101-549, 230(9), substituted ''the last
sentence of subsection (a)(3) of this section)'' for ''the last three
sentences of subsection (a)(1) of this section''.
1977 -- Subsec. (a). Pub. L. 95-190, 14(a)(70), designated
provisions contained in cl. (3) of subsec. (a), formerly set out as
containing cls. (1), (2), and (3), to be par. (3) of subsec. (a)
after the amendment by Pub. L. 95-95, 209(b), which designated
provisions of former subsec. (a) as par. (1) and former cls. (1) and
(2) as (A) and (B) of par. (1) and added a new par. (2).
Pub. L. 95-95, 205, added cl. (3).
Subsec. (b). Pub. L. 95-95, 209(a), (c), inserted provisions to par.
(2) that no warranty be held invalid on the basis of any part used in
the maintenance or repair of a vehicle or engine if the part was
certified as provided in subsec. (a)(2) of this section, and, following
par. (2), inserted provisions defining ''emission control device or
system''.
Subsec. (c)(3). Pub. L. 95-95, 208, designated existing provisions
as subpars. (A) and (C), added requirement for the bold face printing
of a required notice on the first page of the written maintenance
instructions in subpar. (A), and added subpar. (B).
Subsec. (f). Pub. L. 95-190, 14(a)(71), redesignated subsec. (f) as
added by Pub. L. 95-95, 212, as (h).
Subsec. (g). Pub. L. 95-95, 210, added subsec. (g).
Subsec. (h). Pub. L. 95-190, 14(a)(71), redesignated subsec. (f) as
added by Pub. L. 95-95, 212, as (h).
Subsec. (h)(2). Pub. L. 95-190, 14(a)(72), substituted ''determined
under'' for ''determined and''.
Section 209 of Pub. L. 101-549 provided that the amendments made by
that section are effective with respect to new motor vehicles and
engines manufactured in model year 1995 and thereafter.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Section not applicable to vehicles or engines imported into United
States before sixtieth day after Dec. 31, 1970, see section 8(b) of
Pub. L. 91-604, set out as a note under section 7525 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
/1/ So in original. Probably should be ''light-duty''.
/2/ So in original. The second closing parenthesis probably should
not appear.
42 USC -- 7542. Information collection
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Manufacturer's responsibility
Every manufacturer of new motor vehicles or new motor vehicle
engines, and every manufacturer of new motor vehicle or engine parts or
components, and other persons subject to the requirements of this part
or part C of this subchapter, shall establish and maintain records,
perform tests where such testing is not otherwise reasonably available
under this part and part C of this subchapter (including fees for
testing), make reports and provide information the Administrator may
reasonably require to determine whether the manufacturer or other person
has acted or is acting in compliance with this part and part C of this
subchapter and regulations thereunder, or to otherwise carry out the
provision of this part and part C of this subchapter, and shall, upon
request of an officer or employee duly designated by the Administrator,
permit such officer or employee at reasonable times to have access to
and copy such records.
(b) Enforcement authority
For the purposes of enforcement of this section, officers or
employees duly designated by the Administrator upon presenting
appropriate credentials are authorized --
(1) to enter, at reasonable times, any establishment of the
manufacturer, or of any person whom the manufacturer engages to perform
any activity required by subsection (a) of this section, for the
purposes of inspecting or observing any activity conducted pursuant to
subsection (a) of this section, and
(2) to inspect records, files, papers, processes, controls, and
facilities used in performing any activity required by subsection (a) of
this section, by such manufacturer or by any person whom the
manufacturer engages to perform any such activity.
(c) Availability to public; trade secrets
Any records, reports, or information obtained under this part or part
C of this subchapter shall be available to the public, except that upon
a showing satisfactory to the Administrator by any person that records,
reports, or information, or a particular portion thereof (other than
emission data), to which the Administrator has access under this
section, if made public, would divulge methods or processes entitled to
protection as trade secrets of that person, the Administrator shall
consider the record, report, or information or particular portion
thereof confidential in accordance with the purposes of section 1905 of
title 18. Any authorized representative of the Administrator shall be
considered an employee of the United States for purposes of section 1905
of title 18. Nothing in this section shall prohibit the Administrator
or authorized representative of the Administrator from disclosing
records, reports or information to other officers, employees or
authorized representatives of the United States concerned with carrying
out this chapter or when relevant in any proceeding under this chapter.
Nothing in this section shall authorize the withholding of information
by the Administrator or any officer or employee under the
Administrator's control from the duly authorized committees of the
Congress.
(July 14, 1955, ch. 360, title II, 208, formerly 207, as added Oct.
20, 1965, Pub. L. 89-272, title I, 101(8), 79 Stat. 994, amended Nov.
21, 1967, Pub. L. 90-148, 2, 81 Stat. 501, renumbered and amended Dec.
31, 1970, Pub. L. 91-604, 8(a), 10(a), 11(a)(2)(A), 15(c)(2), 84 Stat.
1694, 1700, 1705, 1713; Nov. 15, 1990, Pub. L. 101-549, title II,
211, 104 Stat. 2487.)
Section was formerly classified to section 1857f-6 of this title.
A prior section 208 of act July 14, 1955, as added Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 501, was renumbered section 209 by Pub.
L. 91-604, and is classified to section 7543 of this title.
Another prior section 208 of act July 14, 1955, as added Oct. 20,
1965, Pub. L. 89-272, title I, 101(8), 79 Stat. 994, was renumbered
section 212 by Pub. L. 90-148, renumbered section 213 by Pub. L.
91-604, renumbered 214 by Pub. L. 93-319, and renumbered section 216 by
Pub. L. 95-95, and is classified to section 7550 of this title.
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions which related to: in subsec. (a),
manufacturer's responsibility; and in subsec. (b), availability to
public except for trade secrets.
1970 -- Subsec. (a). Pub. L. 91-604, 11(a)(2)(A), 15(c)(2),
substituted ''Administrator'' for ''Secretary'' wherever appearing and
''part'' for ''subchapter''.
Subsec. (b). Pub. L. 91-604, 10(a), 15(c)(2), substituted
provisions authorizing the Administrator to make available to the public
any records, reports, of information obtained under subsec. (a) of this
section, except those shown to the Administrator to be entitled to
protection as trade secrets, for provisions that all information
reported or otherwise obtained by the Secretary or his representative
pursuant to subsec. (a) of this section, which information contains or
relates to a trade secret or other matter referred to in section 1905 of
title 18, be considered confidential for the purpose of such section
1905, and substituted ''Administrator'' for ''Secretary''.
1967 -- Pub. L. 90-148 reenacted section without change.
42 USC -- 7543. State standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Prohibition
No State or any political subdivision thereof shall adopt or attempt
to enforce any standard relating to the control of emissions from new
motor vehicles or new motor vehicle engines subject to this part. No
State shall require certification, inspection, or any other approval
relating to the control of emissions from any new motor vehicle or new
motor vehicle engine as condition precedent to the initial retail sale,
titling (if any), or registration of such motor vehicle, motor vehicle
engine, or equipment.
(b) Waiver
(1) The Administrator shall, after notice and opportunity for public
hearing, waive application of this section to any State which has
adopted standards (other than crankcase emission standards) for the
control of emissions from new motor vehicles or new motor vehicle
engines prior to March 30, 1966, if the State determines that the State
standards will be, in the aggregate, at least as protective of public
health and welfare as applicable Federal standards. No such waiver
shall be granted if the Administrator finds that --
(A) the determination of the State is arbitrary and capricious,
(B) such State does not need such State standards to meet compelling
and extraordinary conditions, or
(C) such State standards and accompanying enforcement procedures are
not consistent with section 7521(a) of this title.
(2) If each State standard is at least as stringent as the comparable
applicable Federal standard, such State standard shall be deemed to be
at least as protective of health and welfare as such Federal standards
for purposes of paragraph (1).
(3) In the case of any new motor vehicle or new motor vehicle engine
to which State standards apply pursuant to a waiver granted under
paragraph (1), compliance with such State standards shall be treated as
compliance with applicable Federal standards for purposes of this
subchapter.
(c) Certification of vehicle parts or engine parts
Whenever a regulation with respect to any motor vehicle part or motor
vehicle engine part is in effect under section 7541(a)(2) of this title,
no State or political subdivision thereof shall adopt or attempt to
enforce any standard or any requirement of certification, inspection, or
approval which relates to motor vehicle emissions and is applicable to
the same aspect of such part. The preceding sentence shall not apply in
the case of a State with respect to which a waiver is in effect under
subsection (b) of this section.
(d) Control, regulation, or restrictions on registered or licensed
motor vehicles
Nothing in this part shall preclude or deny to any State or political
subdivision thereof the right otherwise to control, regulate, or
restrict the use, operation, or movement of registered or licensed motor
vehicles.
(e) Nonroad engines or vehicles
(1) Prohibition on certain State standards
No State or any political subdivision thereof shall adopt or attempt
to enforce any standard or other requirement relating to the control of
emissions from either of the following new nonroad engines or nonroad
vehicles subject to regulation under this chapter --
(A) New engines which are used in construction equipment or vehicles
or used in farm equipment or vehicles and which are smaller than 175
horsepower.
(B) New locomotives or new engines used in locomotives.
Subsection (b) of this section shall not apply for purposes of this
paragraph.
(2) Other nonroad engines or vehicles
(A) In the case of any nonroad vehicles or engines other than those
referred to in subparagraph (A) or (B) of paragraph (1), the
Administrator shall, after notice and opportunity for public hearing,
authorize California to adopt and enforce standards and other
requirements relating to the control of emissions from such vehicles or
engines if California determines that California standards will be, in
the aggregate, at least as protective of public health and welfare as
applicable Federal standards. No such authorization shall be granted if
the Administrator finds that --
(i) the determination of California is arbitrary and capricious,
(ii) California does not need such California standards to meet
compelling and extraordinary conditions, or
(iii) California standards and accompanying enforcement procedures
are not consistent with this section.
(B) Any State other than California which has plan provisions
approved under part D of subchapter I of this chapter may adopt and
enforce, after notice to the Administrator, for any period, standards
relating to control of emissions from nonroad vehicles or engines (other
than those referred to in subparagraph (A) or (B) of paragraph (1)) and
take such other actions as are referred to in subparagraph (A) of this
paragraph respecting such vehicles or engines if --
(i) such standards and implementation and enforcement are identical,
for the period concerned, to the California standards authorized by the
Administrator under subparagraph (A), and
(ii) California and such State adopt such standards at least 2 years
before commencement of the period for which the standards take effect.
The Administrator shall issue regulations to implement this
subsection.
(July 14, 1955, ch. 360, title II, 209, formerly 208, as added Nov.
21, 1967, Pub. L. 90-148, 2, 81 Stat. 501, renumbered and amended Dec.
31, 1970, Pub. L. 91-604, 8(a), 11(a)(2)(A), 15(c)(2), 84 Stat. 1694,
1705, 1713; Aug. 7, 1977, Pub. L. 95-95, title II, 207, 221, 91 Stat.
755, 762; Nov. 15, 1990, Pub. L. 101-549, title II, 222(b), 104 Stat.
2502.)
Section was formerly classified to section 1857f-6a of this title.
A prior section 209 of act July 14, 1955, as added Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 502, was renumbered section 210 by Pub.
L. 91-604 and is classified to section 7544 of this title.
Another prior section 209 of act July 14, 1955, ch. 360, title II,
as added Oct. 20, 1965, Pub. L. 89-272, title I, 101(8), 79 Stat.
995, relating to appropriations for the fiscal years ending June 30,
1966, 1967, 1968, and 1969, was classified to prior section 1857f-8 of
this title and was repealed by Pub. L. 89-675, 2(b), Oct. 15, 1966,
80 Stat. 954.
1990 -- Subsec. (e). Pub. L. 101-549 added subsec. (e).
1977 -- Subsec. (b). Pub. L. 95-95, 207, designated existing
provisions as par. (1), substituted ''March 30, 1966, if the State
determines that the State standards will be, in the aggregate, at least
as protective of public health and welfare as applicable Federal
standards'' for ''March 30, 1966, unless he finds that such State does
not require standards more stringent than applicable Federal standards
to meet compelling the extraordinary conditions or that such State
standards and accompanying enforcement procedures are not consistent
with section 7521(a) of this title'', added subpars. (A), (B), and (C),
and added pars. (2) and (3).
Subsecs. (c), (d). Pub. L. 95-95, 221, added subsec. (c) and
redesignated former subsec. (c) as (d).
1970 -- Subsec. (a). Pub. L. 91-604, 11(a)(2)(A), substituted
''part'' for ''subchapter''.
Subsec. (b). Pub. L. 91-604, 15(c)(2), substituted ''Administrator''
for ''Secretary''.
Subsec. (c). Pub. L. 91-604, 11(a)(2)(A), substituted ''part'' for
''subchapter''.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
section 2002.
42 USC -- 7544. State grants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator is authorized to make grants to appropriate State
agencies in an amount up to two-thirds of the cost of developing and
maintaining effective vehicle emission devices and systems inspection
and emission testing and control programs, except that --
(1) no such grant shall be made for any part of any State vehicle
inspection program which does not directly relate to the cost of the air
pollution control aspects of such a program;
(2) no such grant shall be made unless the Secretary of
Transportation has certified to the Administrator that such program is
consistent with any highway safety program developed pursuant to section
402 of title 23; and
(3) no such grant shall be made unless the program includes
provisions designed to insure that emission control devices and systems
on vehicles in actual use have not been discontinued or rendered
inoperative.
Grants may be made under this section by way of reimbursement in any
case in which amounts have been expended by the State before the date on
which any such grant was made.
(July 14, 1955, ch. 360, title II, 210, formerly 209, as added Nov.
21, 1967, Pub. L. 90-148, 2, 81 Stat. 502, and renumbered and amended
Dec. 31, 1970, Pub. L. 91-604, 8(a), 10(b), 84 Stat. 1694, 1700; Aug.
7, 1977, Pub. L. 95-95, title II, 204, 91 Stat. 754.)
Section was formerly classified to section 1857f-6b of this title.
A prior section 210 of act July 14, 1955, was renumbered section 211
by Pub. L. 91-604 and is classified to section 7545 of this title.
1977 -- Pub. L. 95-95 inserted provision allowing grants to be made
by way of reimbursement in any case in which amounts have been expended
by States before the date on which the grants were made.
1970 -- Pub. L. 91-604, 10(b), substituted provisions authorizing
the Administrator to make grants to appropriate State agencies for the
development and maintenance of effective vehicle emission devices and
systems inspection and emission testing and control programs, for
provisions authorizing the Secretary to make grants to appropriate State
air pollution control agencies for the development of meaningful uniform
motor vehicle emission device inspection and emission testing programs.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
42 USC -- 7545. Regulation of fuels
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Administrator to regulate
The Administrator may by regulation designate any fuel or fuel
additive (including any fuel or fuel additive used exclusively in
nonroad engines or nonroad vehicles) and, after such date or dates as
may be prescribed by him, no manufacturer or processor of any such fuel
or additive may sell, offer for sale, or introduce into commerce such
fuel or additive unless the Administrator has registered such fuel or
additive in accordance with subsection (b) of this section.
(b) Registration requirement
(1) For the purpose of registration of fuels and fuel additives, the
Administrator shall require --
(A) the manufacturer of any fuel to notify him as to the commercial
identifying name and manufacturer of any additive contained in such
fuel; the range of concentration of any additive in the fuel; and the
purpose-in-use of any such additive; and
(B) the manufacturer of any additive to notify him as to the chemical
composition of such additive.
(2) For the purpose of registration of fuels and fuel additives, the
Administrator may also require the manufacturer of any fuel or fuel
additive --
(A) to conduct tests to determine potential public health effects of
such fuel or additive (including, but not limited to, carcinogenic,
teratogenic, or mutagenic effects), and
(B) to furnish the description of any analytical technique that can
be used to detect and measure any additive in such fuel, the recommended
range of concentration of such additive, and the recommended
purpose-in-use of such additive, and such other information as is
reasonable and necessary to determine the emissions resulting from the
use of the fuel or additive contained in such fuel, the effect of such
fuel or additive on the emission control performance of any vehicle,
vehicle engine, nonroad engine or nonroad vehicle, or the extent to
which such emissions affect the public health or welfare.
Tests under subparagraph (A) shall be conducted in conformity with
test procedures and protocols established by the Administrator. The
result of such tests shall not be considered confidential.
(3) Upon compliance with the provision of this subsection, including
assurances that the Administrator will receive changes in the
information required, the Administrator shall register such fuel or fuel
additive.
(c) Offending fuels and fuel additives; control; prohibition
(1) The Administrator may, from time to time on the basis of
information obtained under subsection (b) of this section or other
information available to him, by regulation, control or prohibit the
manufacture, introduction into commerce, offering for sale, or sale of
any fuel or fuel additive for use in a motor vehicle, motor vehicle
engine, or nonroad engine or nonroad vehicle (A) if in the judgment of
the Administrator any emission product of such fuel or fuel additive
causes, or contributes, to air pollution which may reasonably be
anticipated to endanger the public health or welfare, or (B) if emission
products of such fuel or fuel additive will impair to a significant
degree the performance of any emission control device or system which is
in general use, or which the Administrator finds has been developed to a
point where in a reasonable time it would be in general use were such
regulation to be promulgated.
(2)(A) No fuel, class of fuels, or fuel additive may be controlled or
prohibited by the Administrator pursuant to clause (A) of paragraph (1)
except after consideration of all relevant medical and scientific
evidence available to him, including consideration of other
technologically or economically feasible means of achieving emission
standards under section 7521 of this title.
(B) No fuel or fuel additive may be controlled or prohibited by the
Administrator pursuant to clause (B) of paragraph (1) except after
consideration of available scientific and economic data, including a
cost benefit analysis comparing emission control devices or systems
which are or will be in general use and require the proposed control or
prohibition with emission control devices or systems which are or will
be in general use and do not require the proposed control or
prohibition. On request of a manufacturer of motor vehicles, motor
vehicle engines, fuels, or fuel additives submitted within 10 days of
notice of proposed rulemaking, the Administrator shall hold a public
hearing and publish findings with respect to any matter he is required
to consider under this subparagraph. Such findings shall be published
at the time of promulgation of final regulations.
(C) No fuel or fuel additive may be prohibited by the Administrator
under paragraph (1) unless he finds, and publishes such finding, that in
his judgment such prohibition will not cause the use of any other fuel
or fuel additive which will produce emissions which will endanger the
public health or welfare to the same or greater degree than the use of
the fuel or fuel additive proposed to be prohibited.
(3)(A) For the purpose of obtaining evidence and data to carry out
paragraph (2), the Administrator may require the manufacturer of any
motor vehicle or motor vehicle engine to furnish any information which
has been developed concerning the emissions from motor vehicles
resulting from the use of any fuel or fuel additive, or the effect of
such use on the performance of any emission control device or system.
(B) In obtaining information under subparagraph (A), section 7607(a)
of this title (relating to subpenas) shall be applicable.
(4)(A) Except as otherwise provided in subparagraph (B) or (C), no
State (or political subdivision thereof) may prescribe or attempt to
enforce, for purposes of motor vehicle emission control, any control or
prohibition respecting any characteristic or component of a fuel or fuel
additive in a motor vehicle or motor vehicle engine --
(i) if the Administrator has found that no control or prohibition of
the characteristic or component of a fuel or fuel additive under
paragraph (1) is necessary and has published his finding in the Federal
Register, or
(ii) if the Administrator has prescribed under paragraph (1) a
control or prohibition applicable to such characteristic or component of
a fuel or fuel additive, unless State prohibition or control is
identical to the prohibition or control prescribed by the Administrator.
(B) Any State for which application of section 7543(a) of this title
has at any time been waived under section 7543(b) of this title may at
any time prescribe and enforce, for the purpose of motor vehicle
emission control, a control or prohibition respecting any fuel or fuel
additive.
(C) A State may prescribe and enforce, for purposes of motor vehicle
emission control, a control or prohibition respecting the use of a fuel
or fuel additive in a motor vehicle or motor vehicle engine if an
applicable implementation plan for such State under section 7410 of this
title so provides. The Administrator may approve such provision in an
implementation plan, or promulgate an implementation plan containing
such a provision, only if he finds that the State control or prohibition
is necessary to achieve the national primary or secondary ambient air
quality standard which the plan implements. The Administrator may find
that a State control or prohibition is necessary to achieve that
standard if no other measures that would bring about timely attainment
exist, or if other measures exist and are technically possible to
implement, but are unreasonable or impracticable. The Administrator may
make a finding of necessity under this subparagraph even if the plan for
the area does not contain an approved demonstration of timely
attainment.
(d) Penalties and injunctions
(1) Civil penalties
Any person who violates subsection (a), (f), (g), (k), (l), (m), or
(n) of this section or the regulations prescribed under subsection (c),
(h), (i), (k), (l), (m), or (n) of this section or who fails to furnish
any information or conduct any tests required by the Administrator under
subsection (b) of this section shall be liable to the United States for
a civil penalty of not more than the sum of $25,000 for every day of
such violation and the amount of economic benefit or savings resulting
from the violation. Any violation with respect to a regulation
prescribed under subsection (c), (k), (l), or (m) of this section which
establishes a regulatory standard based upon a multiday averaging period
shall constitute a separate day of violation for each and every day in
the averaging period. Civil penalties shall be assessed in accordance
with subsections (b) and (c) of section 7524 of this title.
(2) Injunctive authority
The district courts of the United States shall have jurisdiction to
restrain violations of subsections (a), (f), (g), (k), (l), (m), and (n)
of this section and of the regulations prescribed under subsections (c),
(h), (i), (k), (l), (m), and (n) of this section, to award other
appropriate relief, and to compel the furnishing of information and the
conduct of tests required by the Administrator under subsection (b) of
this section. Actions to restrain such violations and compel such
actions shall be brought by and in the name of the United States. In
any such action, subpoenas for witnesses who are required to attend a
district court in any district may run into any other district.
(e) Testing of fuels and fuel additives
(1) Not later than one year after August 7, 1977, and after notice
and opportunity for a public hearing, the Administrator shall promulgate
regulations which implement the authority under subsection (b)(2)(A) and
(B) of this section with respect to each fuel or fuel additive which is
registered on the date of promulgation of such regulations and with
respect to each fuel or fuel additive for which an application for
registration is filed thereafter.
(2) Regulations under subsection (b) of this section to carry out
this subsection shall require that the requisite information be provided
to the Administrator by each such manufacturer --
(A) prior to registration, in the case of any fuel or fuel additive
which is not registered on the date of promulgation of such regulations;
or
(B) not later than three years after the date of promulgation of such
regulations, in the case of any fuel or fuel additive which is
registered on such date.
(3) In promulgating such regulations, the Administrator may --
(A) exempt any small business (as defined in such regulations) from
or defer or modify the requirements of, such regulations with respect to
any such small business;
(B) provide for cost-sharing with respect to the testing of any fuel
or fuel additive which is manufactured or processed by two or more
persons or otherwise provide for shared responsibility to meet the
requirements of this section without duplication; or
(C) exempt any person from such regulations with respect to a
particular fuel or fuel additive upon a finding that any additional
testing of such fuel or fuel additive would be duplicative of adequate
existing testing.
(f) New fuels and fuel additives
(1)(A) Effective upon March 31, 1977, it shall be unlawful for any
manufacturer of any fuel or fuel additive to first introduce into
commerce, or to increase the concentration in use of, any fuel or fuel
additive for general use in light duty motor vehicles manufactured after
model year 1974 which is not substantially similar to any fuel or fuel
additive utilized in the certification of any model year 1975, or
subsequent model year, vehicle or engine under section 7525 of this
title.
(B) Effective upon November 15, 1990, it shall be unlawful for any
manufacturer of any fuel or fuel additive to first introduce into
commerce, or to increase the concentration in use of, any fuel or fuel
additive for use by any person in motor vehicles manufactured after
model year 1974 which is not substantially similar to any fuel or fuel
additive utilized in the certification of any model year 1975, or
subsequent model year, vehicle or engine under section 7525 of this
title.
(2) Effective November 30, 1977, it shall be unlawful for any
manufacturer of any fuel to introduce into commerce any gasoline which
contains a concentration of manganese in excess of .0625 grams per
gallon of fuel, except as otherwise provided pursuant to a waiver under
paragraph (4).
(3) Any manufacturer of any fuel or fuel additive which prior to
March 31, 1977, and after January 1, 1974, first introduced into
commerce or increased the concentration in use of a fuel or fuel
additive that would otherwise have been prohibited under paragraph
(1)(A) if introduced on or after March 31, 1977 shall, not later than
September 15, 1978, cease to distribute such fuel or fuel additive in
commerce. During the period beginning 180 days after August 7, 1977,
and before September 15, 1978, the Administrator shall prohibit, or
restrict the concentration of any fuel additive which he determines will
cause or contribute to the failure of an emission control device or
system (over the useful life of any vehicle in which such device or
system is used) to achieve compliance by the vehicle with the emission
standards with respect to which it has been certified under section 7525
of this title.
(4) The Administrator, upon application of any manufacturer of any
fuel or fuel additive, may waive the prohibitions established under
paragraph (1) or (3) of this subsection or the limitation specified in
paragraph (2) of this subsection, if he determines that the applicant
has established that such fuel or fuel additive or a specified
concentration thereof, and the emission products of such fuel or
additive or specified concentration thereof, will not cause or
contribute to a failure of any emission control device or system (over
the useful life of any vehicle in which such device or system is used)
to achieve compliance by the vehicle with the emission standards with
respect to which it has been certified pursuant to section 7525 of this
title. If the Administrator has not acted to grant or deny an
application under this paragraph within one hundred and eighty days of
receipt of such application, the waiver authorized by this paragraph
shall be treated as granted.
(5) No action of the Administrator under this section may be stayed
by any court pending judicial review of such action.
(g) Misfueling
(1) No person shall introduce, or cause or allow the introduction of,
leaded gasoline into any motor vehicle which is labeled ''unleaded
gasoline only,'' which is equipped with a gasoline tank filler inlet
designed for the introduction of unleaded gasoline, which is a 1990 or
later model year motor vehicle, or which such person knows or should
know is a vehicle designed solely for the use of unleaded gasoline.
(2) Beginning October 1, 1993, no person shall introduce or cause or
allow the introduction into any motor vehicle of diesel fuel which such
person knows or should know contains a concentration of sulfur in excess
of 0.05 percent (by weight) or which fails to meet a cetane index
minimum of 40 or such equivalent alternative aromatic level as
prescribed by the Administrator under subsection (i)(2) of this section.
(h) Reid Vapor Pressure requirements
(1) Prohibition
Not later than 6 months after November 15, 1990, the Administrator
shall promulgate regulations making it unlawful for any person during
the high ozone season (as defined by the Administrator) to sell, offer
for sale, dispense, supply, offer for supply, transport, or introduce
into commerce gasoline with a Reid Vapor Pressure in excess of 9.0
pounds per square inch (psi). Such regulations shall also establish
more stringent Reid Vapor Pressure standards in a nonattainment area as
the Administrator finds necessary to generally achieve comparable
evaporative emissions (on a per-vehicle basis) in nonattainment areas,
taking into consideration the enforceability of such standards, the need
of an area for emission control, and economic factors.
(2) Attainment areas
The regulations under this subsection shall not make it unlawful for
any person to sell, offer for supply, transport, or introduce into
commerce gasoline with a Reid Vapor Pressure of 9.0 pounds per square
inch (psi) or lower in any area designated under section 7407 of this
title as an attainment area. Notwithstanding the preceding sentence,
the Administrator may impose a Reid vapor pressure requirement lower
than 9.0 pounds per square inch (psi) in any area, formerly an ozone
nonattainment area, which has been redesignated as an attainment area.
(3) Effective date; enforcement
The regulations under this subsection shall provide that the
requirements of this subsection shall take effect not later than the
high ozone season for 1992, and shall include such provisions as the
Administrator determines are necessary to implement and enforce the
requirements of this subsection.
(4) Ethanol waiver
For fuel blends containing gasoline and 10 percent denatured
anhydrous ethanol, the Reid vapor pressure limitation under this
subsection shall be one pound per square inch (psi) greater than the
applicable Reid vapor pressure limitations established under paragraph
(1); Provided, however, That a distributor, blender, marketer,
reseller, carrier, retailer, or wholesale purchaser-consumer shall be
deemed to be in full compliance with the provisions of this subsection
and the regulations promulgated thereunder if it can demonstrate (by
showing receipt of a certification or other evidence acceptable to the
Administrator) that --
(A) the gasoline portion of the blend complies with the Reid vapor
pressure limitations promulgated pursuant to this subsection;
(B) the ethanol portion of the blend does not exceed its waiver
condition under subsection (f)(4) of this section; and
(C) no additional alcohol or other additive has been added to
increase the Reid Vapor Pressure of the ethanol portion of the blend.
(5) Areas covered
The provisions of this subsection shall apply only to the 48
contiguous States and the District of Columbia.
(i) Sulfur content requirements for diesel fuel
(1) Effective October 1, 1993, no person shall manufacture, sell,
supply, offer for sale or supply, dispense, transport, or introduce into
commerce motor vehicle diesel fuel which contains a concentration of
sulfur in excess of 0.05 percent (by weight) or which fails to meet a
cetane index minimum of 40.
(2) Not later than 12 months after November 15, 1990, the
Administrator shall promulgate regulations to implement and enforce the
requirements of paragraph (1). The Administrator may require
manufacturers and importers of diesel fuel not intended for use in motor
vehicles to dye such fuel in a particular manner in order to segregate
it from motor vehicle diesel fuel. The Administrator may establish an
equivalent alternative aromatic level to the cetane index specification
in paragraph (1).
(3) The sulfur content of fuel required to be used in the
certification of 1991 through 1993 model year heavy-duty diesel vehicles
and engines shall be 0.10 percent (by weight). The sulfur content and
cetane index minimum of fuel required to be used in the certification of
1994 and later model year heavy-duty diesel vehicles and engines shall
comply with the regulations promulgated under paragraph (2).
(4) The States of Alaska and Hawaii may be exempted from the
requirements of this subsection in the same manner as provided in
section 7625 /1/ of this title. The Administrator shall take final
action on any petition filed under section 7625 /1/ of this title or
this paragraph for an exemption from the requirements of this
subsection, within 12 months from the date of the petition.
(j) Lead substitute gasoline additives
(1) After November 15, 1990, any person proposing to register any
gasoline additive under subsection (a) of this section or to use any
previously registered additive as a lead substitute may also elect to
register the additive as a lead substitute gasoline additive for
reducing valve seat wear by providing the Administrator with such
relevant information regarding product identity and composition as the
Administrator deems necessary for carrying out the responsibilities of
paragraph (2) of this subsection (in addition to other information which
may be required under subsection (b) of this section).
(2) In addition to the other testing which may be required under
subsection (b) of this section, in the case of the lead substitute
gasoline additives referred to in paragraph (1), the Administrator shall
develop and publish a test procedure to determine the additives'
effectiveness in reducing valve seat wear and the additives' tendencies
to produce engine deposits and other adverse side effects. The test
procedures shall be developed in cooperation with the Secretary of
Agriculture and with the input of additive manufacturers, engine and
engine components manufacturers, and other interested persons. The
Administrator shall enter into arrangements with an independent
laboratory to conduct tests of each additive using the test procedures
developed and published pursuant to this paragraph. The Administrator
shall publish the results of the tests by company and additive name in
the Federal Register along with, for comparison purposes, the results of
applying the same test procedures to gasoline containing 0.1 gram of
lead per gallon in lieu of the lead substitute gasoline additive. The
Administrator shall not rank or otherwise rate the lead substitute
additives. Test procedures shall be established within 1 year after
November 15, 1990. Additives shall be tested within 18 months of
November 15, 1990, or 6 months after the lead substitute additives are
identified to the Administrator, whichever is later.
(3) The Administrator may impose a user fee to recover the costs of
testing of any fuel additive referred to in this subsection. The fee
shall be paid by the person proposing to register the fuel additive
concerned. Such fee shall not exceed $20,000 for a single fuel
additive.
(4) There are authorized to be appropriated to the Administrator not
more than $1,000,000 for the second full fiscal year after November 15,
1990, to establish test procedures and conduct engine tests as provided
in this subsection. Not more than $500,000 per year is authorized to be
appropriated for each of the 5 subsequent fiscal years.
(5) Any fees collected under this subsection shall be deposited in a
special fund in the United States Treasury for licensing and other
services which thereafter shall be available for appropriation, to
remain available until expended, to carry out the Agency's activities
for which the fees were collected.
(k) Reformulated gasoline for conventional vehicles
(1) EPA regulations
Within 1 year after November 15, 1990, the Administrator shall
promulgate regulations under this section establishing requirements for
reformulated gasoline to be used in gasoline-fueled vehicles in
specified nonattainment areas. Such regulations shall require the
greatest reduction in emissions of ozone forming volatile organic
compounds (during the high ozone season) and emissions of toxic air
pollutants (during the entire year) achievable through the reformulation
of conventional gasoline, taking into consideration the cost of
achieving such emission reductions, any nonair-quality and other
air-quality related health and environmental impacts and energy
requirements.
(2) General requirements
The regulations referred to in paragraph (1) shall require that
reformulated gasoline comply with paragraph (3) and with each of the
following requirements (subject to paragraph (7)):
(A) NOx emissions
The emissions of oxides of nitrogen (NOx) from baseline vehicles when
using the reformulated gasoline shall be no greater than the level of
such emissions from such vehicles when using baseline gasoline. If the
Administrator determines that compliance with the limitation on
emissions of oxides of nitrogen under the preceding sentence is
technically infeasible, considering the other requirements applicable
under this subsection to such gasoline, the Administrator may, as
appropriate to ensure compliance with this subparagraph, adjust (or
waive entirely), any other requirements of this paragraph (including the
oxygen content requirement contained in subparagraph (B)) or any
requirements applicable under paragraph (3)(A).
(B) Oxygen content
The oxygen content of the gasoline shall equal or exceed 2.0 percent
by weight (subject to a testing tolerance established by the
Administrator) except as otherwise required by this chapter. The
Administrator may waive, in whole or in part, the application of this
subparagraph for any ozone nonattainment area upon a determination by
the Administrator that compliance with such requirement would prevent or
interfere with the attainment by the area of a national primary ambient
air quality standard.
(C) Benzene content
The benzene content of the gasoline shall not exceed 1.0 percent by
volume.
(D) Heavy metals
The gasoline shall have no heavy metals, including lead or manganese.
The Administrator may waive the prohibition contained in this
subparagraph for a heavy metal (other than lead) if the Administrator
determines that addition of the heavy metal to the gasoline will not
increase, on an aggregate mass or cancer-risk basis, toxic air pollutant
emissions from motor vehicles.
(3) More stringent of formula or performance standards
The regulations referred to in paragraph (1) shall require compliance
with the more stringent of either the requirements set forth in
subparagraph (A) or the requirements of subparagraph (B) of this
paragraph. For purposes of determining the more stringent provision,
clause (i) and clause (ii) of subparagraph (B) shall be considered
independently.
(A) Formula
(i) Benzene
The benzene content of the reformulated gasoline shall not exceed 1.0
percent by volume.
(ii) Aromatics
The aromatic hydrocarbon content of the reformulated gasoline shall
not exceed 25 percent by volume.
(iii) Lead
The reformulated gasoline shall have no lead content.
(iv) Detergents
The reformulated gasoline shall contain additives to prevent the
accumulation of deposits in engines or vehicle fuel supply systems.
(v) Oxygen content
The oxygen content of the reformulated gasoline shall equal or exceed
2.0 percent by weight (subject to a testing tolerance established by the
Administrator) except as otherwise required by this chapter.
(B) Performance standard
(i) VOC emissions
During the high ozone season (as defined by the Administrator), the
aggregate emissions of ozone forming volatile organic compounds from
baseline vehicles when using the reformulated gasoline shall be 15
percent below the aggregate emissions of ozone forming volatile organic
compounds from such vehicles when using baseline gasoline. Effective in
calendar year 2000 and thereafter, 25 percent shall be substituted for
15 percent in applying this clause, except that the Administrator may
adjust such 25 percent requirement to provide for a lesser or greater
reduction based on technological feasibility, considering the cost of
achieving such reductions in VOC emissions. No such adjustment shall
provide for less than a 20 percent reduction below the aggregate
emissions of such air pollutants from such vehicles when using baseline
gasoline. The reductions required under this clause shall be on a mass
basis.
(ii) Toxics
During the entire year, the aggregate emissions of toxic air
pollutants from baseline vehicles when using the reformulated gasoline
shall be 15 percent below the aggregate emissions of toxic air
pollutants from such vehicles when using baseline gasoline. Effective
in calendar year 2000 and thereafter, 25 percent shall be substituted
for 15 percent in applying this clause, except that the Administrator
may adjust such 25 percent requirement to provide for a lesser or
greater reduction based on technological feasibility, considering the
cost of achieving such reductions in toxic air pollutants. No such
adjustment shall provide for less than a 20 percent reduction below the
aggregate emissions of such air pollutants from such vehicles when using
baseline gasoline. The reductions required under this clause shall be
on a mass basis.
Any reduction greater than a specific percentage reduction required
under this subparagraph shall be treated as satisfying such percentage
reduction requirement.
(4) Certification procedures
(A) Regulations
The regulations under this subsection shall include procedures under
which the Administrator shall certify reformulated gasoline as complying
with the requirements established pursuant to this subsection. Under
such regulations, the Administrator shall establish procedures for any
person to petition the Administrator to certify a fuel formulation, or
slate of fuel formulations. Such procedures shall further require that
the Administrator shall approve or deny such petition within 180 days of
receipt. If the Administrator fails to act within such 180-day period,
the fuel shall be deemed certified until the Administrator completes
action on the petition.
(B) Certification; equivalency
The Administrator shall certify a fuel formulation or slate of fuel
formulations as complying with this subsection if such fuel or fuels --
(i) comply with the requirements of paragraph (2), and
(ii) achieve equivalent or greater reductions in emissions of ozone
forming volatile organic compounds and emissions of toxic air pollutants
than are achieved by a reformulated gasoline meeting the applicable
requirements of paragraph (3).
(C) EPA determination of emissions level
Within 1 year after November 15, 1990, the Administrator shall
determine the level of emissions of ozone forming volatile organic
compounds and emissions of toxic air pollutants emitted by baseline
vehicles when operating on baseline gasoline. For purposes of this
subsection, within 1 year after November 15, 1990, the Administrator
shall, by rule, determine appropriate measures of, and methodology for,
ascertaining the emissions of air pollutants (including calculations,
equipment, and testing tolerances).
(5) Prohibition
Effective beginning January 1, 1995, each of the following shall be a
violation of this subsection:
(A) The sale or dispensing by any person of conventional gasoline to
ultimate consumers in any covered area.
(B) The sale or dispensing by any refiner, blender, importer, or
marketer of conventional gasoline for resale in any covered area,
without (i) segregating such gasoline from reformulated gasoline, and
(ii) clearly marking such conventional gasoline as ''conventional
gasoline, not for sale to ultimate consumer in a covered area''.
Any refiner, blender, importer or marketer who purchases property
segregated and marked conventional gasoline, and thereafter labels,
represents, or wholesales such gasoline as reformulated gasoline shall
also be in violation of this subsection. The Administrator may impose
sampling, testing, and recordkeeping requirements upon any refiner,
blender, importer, or marketer to prevent violations of this section.
(6) Opt-in areas
(A) Upon the application of the Governor of a State, the
Administrator shall apply the prohibition set forth in paragraph (5) in
any area in the State classified under subpart 2 of part D of subchapter
I of this chapter as a Marginal, Moderate, Serious, or Severe Area
(without regard to whether or not the 1980 population of the area
exceeds 250,000). In any such case, the Administrator shall establish
an effective date for such prohibition as he deems appropriate, not
later than January 1, 1995, or 1 year after such application is
received, whichever is later. The Administrator shall publish such
application in the Federal Register upon receipt.
(B) If the Administrator determines, on the Administrator's own
motion or on petition of any person, after consultation with the
Secretary of Energy, that there is insufficient domestic capacity to
produce gasoline certified under this subsection, the Administrator
shall, by rule, extend the effective date of such prohibition in
Marginal, Moderate, Serious, or Severe Areas referred to in subparagraph
(A) for one additional year, and may, by rule, renew such extension for
2 additional one-year periods. The Administrator shall act on any
petition submitted under this paragraph within 6 months after receipt of
the petition. The Administrator shall issue such extensions for areas
with a lower ozone classification before issuing any such extension for
areas with a higher classification.
(7) Credits
(A) The regulations promulgated under this subsection shall provide
for the granting of an appropriate amount of credits to a person who
refines, blends, or imports and certifies a gasoline or slate of
gasoline that --
(i) has an oxygen content (by weight) that exceeds the minimum oxygen
content specified in paragraph (2);
(ii) has an aromatic hydrocarbon content (by volume) that is less
than the maximum aromatic hydrocarbon content required to comply with
paragraph (3); or
(iii) has a benzene content (by volume) that is less than the maximum
benzene content specified in paragraph (2).
(B) The regulations described in subparagraph (A) shall also provide
that a person who is granted credits may use such credits, or transfer
all or a portion of such credits to another person for use within the
same nonattainment area, for the purpose of complying with this
subsection.
(C) The regulations promulgated under subparagraphs (A) and (B) shall
ensure the enforcement of the requirements for the issuance,
application, and transfer of the credits. Such regulations shall
prohibit the granting or transfer of such credits for use with respect
to any gasoline in a nonattainment area, to the extent the use of such
credits would result in any of the following:
(i) An average gasoline aromatic hydrocarbon content (by volume) for
the nonattainment (taking into account all gasoline sold for use in
conventional gasoline-fueled vehicles in the nonattainment area) higher
than the average fuel aromatic hydrocarbon content (by volume) that
would occur in the absence of using any such credits.
(ii) An average gasoline oxygen content (by weight) for the
nonattainment area (taking into account all gasoline sold for use in
conventional gasoline-fueled vehicles in the nonattainment area) lower
than the average gasoline oxygen content (by weight) that would occur in
the absence of using any such credits.
(iii) An average benzene content (by volume) for the nonattainment
area (taking into account all gasoline sold for use in conventional
gasoline-fueled vehicles in the nonattainment area) higher than the
average benzene content (by volume) that would occur in the absence of
using any such credits.
(8) Anti-dumping rules
(A) In general
Within 1 year after November 15, 1990, the Administrator shall
promulgate regulations applicable to each refiner, blender, or importer
of gasoline ensuring that gasoline sold or introduced into commerce by
such refiner, blender, or importer (other than reformulated gasoline
subject to the requirements of paragraph (1)) does not result in average
per gallon emissions (measured on a mass basis) of (i) volatile organic
compounds, (ii) oxides of nitrogen, (iii) carbon monoxide, and (iv)
toxic air pollutants in excess of such emissions of such pollutants
attributable to gasoline sold or introduced into commerce in calendar
year 1990 by that refiner, blender, or importer. Such regulations shall
take effect beginning January 1, 1995.
(B) Adjustments
In evaluating compliance with the requirements of subparagraph (A),
the Administrator shall make appropriate adjustments to insure that no
credit is provided for improvement in motor vehicle emissions control in
motor vehicles sold after the calendar year 1990.
(C) Compliance determined for each pollutant independently
In determining whether there is an increase in emissions in violation
of the prohibition contained in subparagraph (A) the Administrator shall
consider an increase in each air pollutant referred to in clauses (i)
through (iv) as a separate violation of such prohibition, except that
the Administrator shall promulgate regulations to provide that any
increase in emissions of oxides of nitrogen resulting from adding
oxygenates to gasoline may be offset by an equivalent or greater
reduction (on a mass basis) in emissions of volatile organic compounds,
carbon monoxide, or toxic air pollutants, or any combination of the
foregoing.
(D) Compliance period
The Administrator shall promulgate an appropriate compliance period
or appropriate compliance periods to be used for assessing compliance
with the prohibition contained in subparagraph (A).
(E) Baseline for determining compliance
If the Administrator determines that no adequate and reliable data
exists regarding the composition of gasoline sold or introduced into
commerce by a refiner, blender, or importer in calendar year 1990, for
such refiner, blender, or importer, baseline gasoline shall be
substituted for such 1990 gasoline in determining compliance with
subparagraph (A).
(9) Emissions from entire vehicle
In applying the requirements of this subsection, the Administrator
shall take into account emissions from the entire motor vehicle,
including evaporative, running, refueling, and exhaust emissions.
(10) Definitions
For purposes of this subsection --
(A) Baseline vehicles
The term ''baseline vehicles'' mean representative model year 1990
vehicles.
(B) Baseline gasoline
(i) Summertime
The term ''baseline gasoline'' means in the case of gasoline sold
during the high ozone period (as defined by the Administrator) a
gasoline which meets the following specifications:
l BASELINE GASOLINE FUEL PROPERTIES
API Gravity 57.4 Sulfur, ppm 339 Benzene, % 1.53 RVP, psi 8.7
Octane, R+M/2 87.3 IBP, F 91 10%, F 128 50%, F 218 90%, F 330 End
Point, F 415 Aromatics, % 32.0 Olefins, % 9.2 Saturates, % 58.8
(ii) Wintertime
The Administrator shall establish the specifications of ''baseline
gasoline'' for gasoline sold at times other than the high ozone period
(as defined by the Administrator). Such specifications shall be the
specifications of 1990 industry average gasoline sold during such
period.
(C) Toxic air pollutants
The term ''toxic air pollutants'' means the aggregate emissions of
the following:
Benzene
1,3 Butadiene
Polycyclic organic matter (POM)
Acetaldehyde
Formaldehyde.
(D) Covered area
The 9 ozone nonattainment areas having a 1980 population in excess of
250,000 and having the highest ozone design value during the period 1987
through 1989 shall be ''covered areas'' for purposes of this subsection.
Effective one year after the reclassification of any ozone
nonattainment area as a Severe ozone nonattainment area under section
7511(b) of this title, such Severe area shall also be a ''covered area''
for purposes of this subsection.
(E) Reformulated gasoline
The term ''reformulated gasoline'' means any gasoline which is
certified by the Administrator under this section as complying with this
subsection.
(F) Conventional gasoline
The term ''conventional gasoline'' means any gasoline which does not
meet specifications set by a certification under this subsection.
(l) Detergents
Effective beginning January 1, 1995, no person may sell or dispense
to an ultimate consumer in the United States, and no refiner or marketer
may directly or indirectly sell or dispense to persons who sell or
dispense to ultimate consumers in the United States any gasoline which
does not contain additives to prevent the accumulation of deposits in
engines or fuel supply systems. Not later than 2 years after November
15, 1990, the Administrator shall promulgate a rule establishing
specifications for such additives.
(m) Oxygenated fuels
(1) Plan revisions for CO nonattainment areas
(A) Each State in which there is located all or part of an area which
is designated under subchapter I of this chapter as a nonattainment area
for carbon monoxide and which has a carbon monoxide design value of 9.5
parts per million (ppm) or above based on data for the 2-year period of
1988 and 1989 and calculated according to the most recent interpretation
methodology issued by the Administrator prior to November 15, 1990,
shall submit to the Administrator a State implementation plan revision
under section 7410 of this title and part D of subchapter I of this
chapter for such area which shall contain the provisions specified under
this subsection regarding oxygenated gasoline.
(B) A plan revision which contains such provisions shall also be
submitted by each State in which there is located any area which, for
any 2-year period after 1989 has a carbon monoxide design value of 9.5
ppm or above. The revision shall be submitted within 18 months after
such 2-year period.
(2) Oxygenated gasoline in CO nonattainment areas
Each plan revision under this subsection shall contain provisions to
require that any gasoline sold, or dispensed, to the ultimate consumer
in the carbon monoxide nonattainment area or sold or dispensed directly
or indirectly by fuel refiners or marketers to persons who sell or
dispense to ultimate consumers, in the larger of --
(A) the Consolidated Metropolitan Statistical Area (CMSA) in which
the area is located, or
(B) if the area is not located in a CMSA, the Metropolitan
Statistical Area in which the area is located,
be blended, during the portion of the year in which the area is prone
to high ambient concentrations of carbon monoxide to contain not less
than 2.7 percent oxygen by weight (subject to a testing tolerance
established by the Administrator). The portion of the year in which the
area is prone to high ambient concentrations of carbon monoxide shall be
as determined by the Administrator, but shall not be less than 4 months.
At the request of a State with respect to any area designated as
nonattainment for carbon monoxide, the Administrator may reduce the
period specified in the preceding sentence if the State can demonstrate
that because of meteorological conditions, a reduced period will assure
that there will be no exceedances of the carbon monoxide standard
outside of such reduced period. For areas with a carbon monoxide design
value of 9.5 ppm or more of /2/ November 15, 1990, the revision shall
provide that such requirement shall take effect no later than November
1, 1992 (or at such other date during 1992 as the Administrator
establishes under the preceding provisions of this paragraph). For
other areas, the revision shall provide that such requirement shall take
effect no later than November 1 of the third year after the last year of
the applicable 2-year period referred to in paragraph (1) (or at such
other date during such third year as the Administrator establishes under
the preceding provisions of this paragraph) and shall include a program
for implementation and enforcement of the requirement consistent with
guidance to be issued by the Administrator.
(3) Waivers
(A) The Administrator shall waive, in whole or in part, the
requirements of paragraph (2) upon a demonstration by the State to the
satisfaction of the Administrator that the use of oxygenated gasoline
would prevent or interfere with the attainment by the area of a national
primary ambient air quality standard (or a State or local ambient air
quality standard) for any air pollutant other than carbon monoxide.
(B) The Administrator shall, upon demonstration by the State
satisfactory to the Administrator, waive the requirement of paragraph
(2) where the Administrator determines that mobile sources of carbon
monoxide do not contribute significantly to carbon monoxide levels in an
area.
(C)(i) Any person may petition the Administrator to make a finding
that there is, or is likely to be, for any area, an inadequate domestic
supply of, or distribution capacity for, oxygenated gasoline meeting the
requirements of paragraph (2) or fuel additives (oxygenates) necessary
to meet such requirements. The Administrator shall act on such petition
within 6 months after receipt of the petition.
(ii) If the Administrator determines, in response to a petition under
clause (i), that there is an inadequate supply or capacity described in
clause (i), the Administrator shall delay the effective date of
paragraph (2) for 1 year. Upon petition, the Administrator may extend
such effective date for one additional year. No partial delay or lesser
waiver may be granted under this clause.
(iii) In granting waivers under this subparagraph the Administrator
shall consider distribution capacity separately from the adequacy of
domestic supply and shall grant such waivers in such manner as will
assure that, if supplies of oxygenated gasoline are limited, areas
having the highest design value for carbon monoxide will have a priority
in obtaining oxygenated gasoline which meets the requirements of
paragraph (2).
(iv) As used in this subparagraph, the term distribution capacity
includes capacity for transportation, storage, and blending.
(4) Fuel dispensing systems
Any person selling oxygenated gasoline at retail pursuant to this
subsection shall be required under regulations promulgated by the
Administrator to label the fuel dispensing system with a notice that the
gasoline is oxygenated and will reduce the carbon monoxide emissions
from the motor vehicle.
(5) Guidelines for credit
The Administrator shall promulgate guidelines, within 9 months after
November 15, 1990, allowing the use of marketable oxygen credits from
gasolines during that portion of the year specified in paragraph (2)
with higher oxygen content than required to offset the sale or use of
gasoline with a lower oxygen content than required. No credits may be
transferred between nonattainment areas.
(6) Attainment areas
Nothing in this subsection shall be interpreted as requiring an
oxygenated gasoline program in an area which is in attainment for carbon
monoxide, except that in a carbon monoxide nonattainment area which is
redesignated as attainment for carbon monoxide, the requirements of this
subsection shall remain in effect to the extent such program is
necessary to maintain such standard thereafter in the area.
(7) Failure to attain CO standard
If the Administrator determines under section 7512(b)(2) of this
title that the national primary ambient air quality standard for carbon
monoxide has not been attained in a Serious Area by the applicable
attainment date, the State shall submit a plan revision for the area
within 9 months after the date of such determination. The plan revision
shall provide that the minimum oxygen content of gasoline referred to in
paragraph (2) shall be 3.1 percent by weight unless such requirement is
waived in accordance with the provisions of this subsection.
(n) Prohibition on leaded gasoline for highway use
After December 31, 1995, it shall be unlawful for any person to sell,
offer for sale, supply, offer for supply, dispense, transport, or
introduce into commerce, for use as fuel in any motor vehicle (as
defined in section 7554(2) /3/ of this title) any gasoline which
contains lead or lead additives.
(o) Fuel and fuel additive importers and importation
For the purposes of this section, the term ''manufacturer'' includes
an importer and the term ''manufacture'' includes importation.
(July 14, 1955, ch. 360, title II, 211, formerly 210, as added Nov.
21, 1967, Pub. L. 90-148, 2, 81 Stat. 502, and renumbered and amended
Dec. 31, 1970, Pub. L. 91-604, 8(a), 9(a), 84 Stat. 1694, 1698; Nov.
18, 1971, Pub. L. 92-157, title III, 302(d), (e), 85 Stat. 464; Aug.
7, 1977, Pub. L. 95-95, title II, 222, 223, title IV, 401(e), 91
Stat. 762, 764, 791; Nov. 16, 1977, Pub. L. 95-190, 14(a)(73), (74),
91 Stat. 1403, 1404; Nov. 15, 1990, Pub. L. 101-549, title II,
212-221, 228(d), 104 Stat. 2488-2500, 2510.)
Section was formerly classified to section 1857f-6c of this title.
A prior section 211 of act July 14, 1955, as added Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 503, providing for a national emissions
standards study, was classified to section 1857f-6d of this title and
was repealed by section 8(a) of Pub. L. 91-604.
1990 -- Subsec. (a). Pub. L. 101-549, 212, inserted ''(including
any fuel or fuel additive used exclusively in nonroad engines or nonroad
vehicles)'' after ''fuel or fuel additive''.
Subsecs. (b)(2)(B), (c)(1). Pub. L. 101-549, 212(b), (c), inserted
reference to nonroad engine or nonroad vehicle.
Subsec. (c)(4)(A). Pub. L. 101-549, 213(a), substituted ''any
characteristic or component of a'' for ''use of a'', inserted ''of the
characteristic or component of a fuel or fuel additive'' after ''control
or prohibition'' in cl. (i), and inserted ''characteristic or component
of a'' after ''such'' in cl. (ii).
Subsec. (c)(4)(C). Pub. L. 101-549, 213(b), inserted last two
sentences, authorizing Administrator to make a finding that State
control or prohibition is necessary to achieve the standard.
Subsec. (d). Pub. L. 101-549, 228(d), amended subsec. (d)
generally. Prior to amendment, subsec. (d) read as follows: ''Any
person who violates subsection (a) or (f) of this section or the
regulations prescribed under subsection (c) of this section or who fails
to furnish any information required by the Administrator under
subsection (b) of this section shall forfeit and pay to the United
States a civil penalty of $10,000 for each and every day of the
continuance of such violation, which shall accrue to the United States
and be recovered in a civil suit in the name of the United States,
brought in the district where such person has his principal office or in
any district in which he does business. The Administrator may, upon
application therefor, remit or mitigate any forfeiture provided for in
this subsection and he shall have authority to determine the facts upon
all such applications.''
Subsec. (f)(1). Pub. L. 101-549, 214(a), designated existing
provisions as subpar. (A) and added subpar. (B).
Subsec. (f)(3). Pub. L. 101-549, 214(b), substituted reference to
paragraph (1)(A) for reference to paragraph (1).
Subsec. (g). Pub. L. 101-549, 215, amended subsec. (g) generally,
substituting present provisions for provisions which defined
''gasoline'', ''refinery'', and ''small refinery'' and which limited
Administrator's authority to require small refineries to reduce average
lead content per gallon of gasoline.
Subsec. (h). Pub. L. 101-549, 216, added subsec. (h).
Subsec. (i). Pub. L. 101-549, 217, added subsec. (i).
Subsec. (j). Pub. L. 101-549, 218(a), added subsec. (j).
Subsecs. (k) to (m). Pub. L. 101-549, 219, added subsecs. (k) to
(m).
Subsec. (n). Pub. L. 101-549, 220, added subsec. (n).
Subsec. (o). Pub. L. 101-549, 221, added subsec. (o).
1977 -- Subsec. (c)(1)(A). Pub. L. 95-95, 401(e), substituted ''if
in the judgment of the Administrator any emission product of such fuel
or fuel additive causes, or contributes, to air pollution which may
reasonably be anticipated to endanger'' for ''if any emission products
of such fuel or fuel additive will endanger''.
Subsec. (d). Pub. L. 95-95, 222(b), inserted ''or (f)'' after ''Any
person who violates subsection (a)''.
Subsecs. (e), (f). Pub. L. 95-95, 222(a), added subsecs. (e) and
(f).
Subsec. (f)(2). Pub. L. 95-190, 14(a)(73), inserted provision
relating to waiver under par. (4) of this subsec., and struck out
''first'' before ''introduce''.
Subsec. (f)(4). Pub. L. 95-190, 14(a)(74), inserted provision
relating to applicability of limitation specified under par. (2) of
this subsection.
Subsec. (g). Pub. L. 95-95, 223, added subsec. (g).
1971 -- Subsec. (c)(3)(A). Pub. L. 92-157, 302(d), substituted
''purpose of obtaining'' for ''purpose of''.
Subsec. (d). Pub. L. 92-157, 302(e), substituted ''subsection (b)''
for ''subsection (c)'' where appearing the second time.
1970 -- Subsec. (a). Pub. L. 91-604, 9(a), substituted
''Administrator'' for ''Secretary'' as the registering authority,
inserted references to fuel additives, and substituted the selling,
offering for sale, and introduction into commerce of fuel or fuel
additives, for the delivery for introduction into interstate commerce or
delivery to another person who can reasonably be expected to deliver
fuel into interstate commerce.
Subsec. (b). Pub. L. 91-604, 9(a), designated existing provisions as
pars. (1) and (3), added par. (2), and substituted ''Administrator''
for ''Secretary'' wherever appearing.
Subsec. (c). Pub. L. 91-604, 9(a), substituted provisions covering
the control or prohibition of offending fuels and fuel additives, for
provisions covering trade secrets and substituted ''Administrator'' for
''Secretary'' wherever appearing.
Subsec. (d). Pub. L. 91-604, 9(a), inserted references to failure to
obey regulations prescribed under subsec. (c) and failure to furnish
information required by the Administrator under subsec. (c), increased
the daily civil penalty from $1,000 to $10,000 and substituted
''Administrator'' for ''Secretary''.
Subsec. (e). Pub. L. 91-604, 9(a), struck out subsec. (e) which
directed the various United States Attorneys to prosecute for the
recovery of forfeitures.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Pub. L. 100-203, title I, 1508, Dec. 22, 1987, 101 Stat. 1330-29,
provided that:
''(a) Findings. -- Congress finds that --
''(1) the United States is dependent for a large and growing share of
its energy needs on the Middle East at a time when world petroleum
reserves are declining;
''(2) the burning of gasoline causes pollution;
''(3) ethanol can be blended with gasoline to produce a cleaner
source of fuel;
''(4) ethanol can be produced from grain, a renewable resource that
is in considerable surplus in the United States;
''(5) the conversion of grain into ethanol would reduce farm program
costs and grain surpluses; and
''(6) increasing the quantity of motor fuels that contain at least 10
percent ethanol from current levels to 50 percent by 1992 would create
thousands of new jobs in ethanol production facilities.
''(b) Sense of Congress. -- It is the sense of Congress that the
Administrator of the Environmental Protection Agency should use
authority provided under the Clean Air Act (42 U.S.C. 7401 et seq.) to
require greater use of ethanol as motor fuel.''
Pub. L. 99-198, title XVII, 1765, Dec. 23, 1985, 99 Stat. 1653,
directed Administrator of EPA and Secretary of Agriculture jointly to
conduct a study of use of fuel containing lead additives, and
alternative lubricating additives, in gasoline engines that are used in
agricultural machinery, and designed to combust fuel containing such
additives, study to analyze potential for mechanical problems (including
but not limited to valve recession) that may be associated with use of
other fuels in such engines, and not later than Jan. 1, 1987,
Administrator and Secretary to publish results of the study, with
Administrator to publish in Federal Register notice of publication of
such study and a summary thereof; directed Administrator, after notice
and opportunity for hearing, but not later than 6 months after
publication of the study, to make findings and recommendations on need
for lead additives in gasoline to be used on a farm for farming
purposes, including a determination of whether a modification of
regulations limiting lead content of gasoline would be appropriate in
the case of gasoline used on a farm for farming purposes, and submit to
President and Congress a report containing the study, a summary of
comments received during public hearing (including comments of
Secretary), and findings and recommendations of Administrator made in
accordance with clause (1), such report to be transmitted named
congressional committees; directed Administrator between Jan. 1, 1986,
and Dec. 31, 1987, to monitor actual lead content of leaded gasoline
sold in the United States, with Administrator to determine average lead
content of such gasoline for each 3-month period between Jan. 1, 1986,
and Dec. 31, 1987, and if actual lead content falls below an average of
0.2 of a gram of lead per gallon in any such 3-month period, to report
to Congress, and publish a notice thereof in Federal Register; provided
that until Jan. 1, 1988, no regulation of Administrator issued under
this section 211 could require an average lead content per gallon that
is less than 0.1 of a gram per gallon; and authorized an appropriation.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
/1/ So in original. Probably should be section ''7625-1''.
/2/ So in original. Probably should be ''as of''.
/3/ So in original. Probably should be section ''7550(2)''.
42 USC -- 7546. Repealed. Pub. L. 101-549, title II, 230(10), Nov.
15, 1990, 104 Stat. 2529
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, act July 14, 1955, ch. 360, title II, 212, as added Dec.
31, 1970, Pub. L. 91-604, 10(c), 84 Stat. 1700, and amended Dec. 31,
1970, Pub. L. 91-605, 202(a), 84 Stat. 1739; Apr. 9, 1973, Pub. L.
93-15, 1(b), 87 Stat. 11; June 22, 1974, Pub. L. 93-319, 13(b), 88
Stat. 265, related to low-emission vehicles.
A prior section 212 of act July 14, 1955, was renumbered section 213
by Pub. L. 91-604, renumbered section 214 by Pub. L. 93-319, and
renumbered section 216 by Pub. L. 95-95, and is classified to section
7550 of this title.
42 USC -- 7547. Nonroad engines and vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Emissions standards
(1) The Administrator shall conduct a study of emissions from nonroad
engines and nonroad vehicles (other than locomotives or engines used in
locomotives) to determine if such emissions cause, or significantly
contribute to, air pollution which may reasonably be anticipated to
endanger public health or welfare. Such study shall be completed within
12 months of November 15, 1990.
(2) After notice and opportunity for public hearing, the
Administrator shall determine within 12 months after completion of the
study under paragraph (1), based upon the results of such study, whether
emissions of carbon monoxide, oxides of nitrogen, and volatile organic
compounds from new and existing nonroad engines or nonroad vehicles
(other than locomotives or engines used in locomotives) are significant
contributors to ozone or carbon monoxide concentrations in more than 1
area which has failed to attain the national ambient air quality
standards for ozone or carbon monoxide. Such determination shall be
included in the regulations under paragraph (3).
(3) If the Administrator makes an affirmative determination under
paragraph (2) the Administrator shall, within 12 months after completion
of the study under paragraph (1), promulgate (and from time to time
revise) regulations containing standards applicable to emissions from
those classes or categories of new nonroad engines and new nonroad
vehicles (other than locomotives or engines used in locomotives) which
in the Administrator's judgment cause, or contribute to, such air
pollution. Such standards shall achieve the greatest degree of emission
reduction achievable through the application of technology which the
Administrator determines will be available for the engines or vehicles
to which such standards apply, giving appropriate consideration to the
cost of applying such technology within the period of time available to
manufacturers and to noise, energy, and safety factors associated with
the application of such technology. In determining what degree of
reduction will be available, the Administrator shall first consider
standards equivalent in stringency to standards for comparable motor
vehicles or engines (if any) regulated under section 7521 of this title,
taking into account the technological feasibility, costs, safety, noise,
and energy factors associated with achieving, as appropriate, standards
of such stringency and lead time. The regulations shall apply to the
useful life of the engines or vehicles (as determined by the
Administrator).
(4) If the Administrator determines that any emissions not referred
to in paragraph (2) from new nonroad engines or vehicles significantly
contribute to air pollution which may reasonably be anticipated to
endanger public health or welfare, the Administrator may promulgate (and
from time to time revise) such regulations as the Administrator deems
appropriate containing standards applicable to emissions from those
classes or categories of new nonroad engines and new nonroad vehicles
(other than locomotives or engines used in locomotives) which in the
Administrator's judgment cause, or contribute to, such air pollution,
taking into account costs, noise, safety, and energy factors associated
with the application of technology which the Administrator determines
will be available for the engines and vehicles to which such standards
apply. The regulations shall apply to the useful life of the engines or
vehicles (as determined by the Administrator).
(5) Within 5 years after November 15, 1990, the Administrator shall
promulgate regulations containing standards applicable to emissions from
new locomotives and new engines used in locomotives. Such standards
shall achieve the greatest degree of emission reduction achievable
through the application of technology which the Administrator determines
will be available for the locomotives or engines to which such standards
apply, giving appropriate consideration to the cost of applying such
technology within the period of time available to manufacturers and to
noise, energy, and safety factors associated with the application of
such technology.
(b) Effective date
Standards under this section shall take effect at the earliest
possible date considering the lead time necessary to permit the
development and application of the requisite technology, giving
appropriate consideration to the cost of compliance within such period
and energy and safety.
(c) Safe controls
Effective with respect to new engines or vehicles to which standards
under this section apply, no emission control device, system, or element
of design shall be used in such a new nonroad engine or new nonroad
vehicle for purposes of complying with such standards if such device,
system, or element of design will cause or contribute to an unreasonable
risk to public health, welfare, or safety in its operation or function.
In determining whether an unreasonable risk exists, the Administrator
shall consider factors including those described in section
7521(a)(4)(B) of this title.
(d) Enforcement
The standards under this section shall be subject to sections 7525,
7541, 7542, and 7543 of this title, with such modifications of the
applicable regulations implementing such sections as the Administrator
deems appropriate, and shall be enforced in the same manner as standards
prescribed under section 7521 of this title. The Administrator shall
revise or promulgate regulations as may be necessary to determine
compliance with, and enforce, standards in effect under this section.
(July 14, 1955, ch. 360, title II, 213, as added June 22, 1974, Pub.
L. 93-319, 10, 88 Stat. 261, and amended Nov. 15, 1990, Pub. L.
101-549, title II, 222(a), 104 Stat. 2500.)
Section was formerly classified to section 1857f-6f of this title.
A prior section 213 of act July 14, 1955, was renumbered section 214
by Pub. L. 93-319 and renumbered section 216 by Pub. L. 95-95, and is
classified to section 7550 of this title.
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions requiring Administrator and Secretary
of Transportation to conduct study on fuel economy improvement for new
motor vehicles manufactured during and after model year 1980.
42 USC -- 7548. Study of particulate emissions from motor vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Study and analysis
(1) The Administrator shall conduct a study concerning the effects on
health and welfare of particulate emissions from motor vehicles or motor
vehicle engines to which section 7521 of this title applies. Such study
shall characterize and quantify such emissions and analyze the
relationship of such emissions to various fuels and fuel additives.
(2) The study shall also include an analysis of particulate emissions
from mobile sources which are not related to engine emissions
(including, but not limited to tire debris, and asbestos from brake
lining).
(b) Report to Congress
The Administrator shall report to the Congress the findings and
results of the study conducted under subsection (a) of this section not
later than two years after August 7, 1977. Such report shall also
include recommendations for standards or methods to regulate particulate
emissions described in paragraph (2) of subsection (a) of this section.
(July 14, 1955, ch. 360, title II, 214, as added Aug. 7, 1977, Pub.
L. 95-95, title II, 224(d), 91 Stat. 767.)
A prior section 214 of act July 14, 1955, was renumbered section 216
by Pub. L. 95-95, and is classified to section 7550 of this title.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
Section 403(a) of Pub. L. 95-95 directed Administrator of EPA, not
later than 18 months after Aug. 7, 1977, in cooperation with National
Academy of Sciences, to study and report to Congress on relationship
between size, weight, and chemical composition of suspended particulate
matter and nature and degree of endangerment to public health or welfare
presented by such particulate matter and availability of technology for
controlling such particulate matter.
42 USC -- 7549. High altitude performance adjustments
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Instruction of the manufacturer
(1) Any action taken with respect to any element of design installed
on or in a motor vehicle or motor vehicle engine in compliance with
regulations under this subchapter (including any alteration or
adjustment of such element), shall be treated as not in violation of
section 7522(a) of this title if such action is performed in accordance
with high altitude adjustment instructions provided by the manufacturer
under subsection (b) of this section and approved by the Administrator.
(2) If the Administrator finds that adjustments or modifications made
pursuant to instructions of the manufacturer under paragraph (1) will
not insure emission control performance with respect to each standard
under section 7521 of this title at least equivalent to that which would
result if no such adjustments or modifications were made, he shall
disapprove such instructions. Such finding shall be based upon minimum
engineering evaluations consistent with good engineering practice.
(b) Regulations
(1) Instructions respecting each class or category of vehicles or
engines to which this title applies providing for such vehicle and
engine adjustments and modifications as may be necessary to insure
emission control performance at different altitudes shall be submitted
by the manufacturer to the Administrator pursuant to regulations
promulgated by the Administrator.
(2) Any knowing violation by a manufacturer of requirements of the
Administrator under paragraph (1) shall be treated as a violation by
such manufacturer of section 7522(a)(3) of this title for purposes of
the penalties contained in section 7524 of this title.
(3) Such instructions shall provide, in addition to other
adjustments, for adjustments for vehicles moving from high altitude
areas to low altitude areas after the initial registration of such
vehicles.
(c) Manufacturer parts
No instructions under this section respecting adjustments or
modifications may require the use of any manufacturer parts (as defined
in section 7522(a) of this title) unless the manufacturer demonstrates
to the satisfaction of the Administrator that the use of such
manufacturer parts is necessary to insure emission control performance.
(d) State inspection and maintenance programs
Before January 1, 1981 the authority provided by this section shall
be available in any high altitude State (as determined under regulations
of the Administrator under regulations promulgated before August 7,
1977) but after December 31, 1980, such authority shall be available
only in any such State in which an inspection and maintenance program
for the testing of motor vehicle emissions has been instituted for the
portions of the State where any national ambient air quality standard
for auto-related pollutants has not been attained.
(e) High altitude testing
(1) The Administrator shall promptly establish at least one testing
center (in addition to the testing centers existing on November 15,
1990) located at a site that represents high altitude conditions, to
ascertain in a reasonable manner whether, when in actual use throughout
their useful life (as determined under section 7521(d) of this title),
each class or category of vehicle and engines to which regulations under
section 7521 of this title apply conforms to the emissions standards
established by such regulations. For purposes of this subsection, the
term ''high altitude conditions'' refers to high altitude as defined in
regulations of the Administrator in effect as of November 15, 1990.
(2) The Administrator, in cooperation with the Secretary of Energy
and the Administrator of the Federal Transit Administration, and such
other agencies as the Administrator deems appropriate, shall establish a
research and technology assessment center to provide for the development
and evaluation of less-polluting heavy-duty engines and fuels for use in
buses, heavy-duty trucks, and non-road engines and vehicles, which shall
be located at a high-altitude site that represents high-altitude
conditions. In establishing and funding such a center, the
Administrator shall give preference to proposals which provide for local
cost-sharing of facilities and recovery of costs of operation through
utilization of such facility for the purposes of this section.
(3) The Administrator shall designate at least one center at
high-altitude conditions to provide research on after-market emission
components, dual-fueled vehicles and conversion kits, the effects of
tampering on emissions equipment, testing of alternate fuels and
conversion kits, and the development of curricula, training courses, and
materials to maximize the effectiveness of inspection and maintenance
programs as they relate to promoting effective control of vehicle
emissions at high-altitude elevations. Preference shall be given to
existing vehicle emissions testing and research centers that have
established reputations for vehicle emissions research and development
and training, and that possess in-house Federal Test Procedure capacity.
(July 14, 1955, ch. 360, title II, 215, as added Aug. 7, 1977, Pub.
L. 95-95, title II, 211(b), 91 Stat. 757, and amended Nov. 16, 1977,
Pub. L. 95-190, 14(a)(75), 91 Stat. 1404; Nov. 15, 1990, Pub. L.
101-549, title II, 224, 104 Stat. 2503; Dec. 18, 1991, Pub. L.
102-240, title III, 3004(b), 105 Stat. 2088.)
In subsec. (d), ''August 7, 1977'' substituted for ''the date of
enactment of this Act'' to reflect the probable intent of Congress that
such date of enactment meant the date of enactment of Pub. L. 95-95.
1990 -- Subsec. (e). Pub. L. 101-549 added subsec. (e).
1977 -- Subsec. (d). Pub. L. 95-190 substituted ''December 31,
1980'' for ''December 31, 1981''.
''Federal Transit Administration'' substituted for ''Urban Mass
Transit Administration'' in subsec. (e)(2) pursuant to section 3004(a)
of Pub. L. 102-240, set out as a note under section 107 of Title 49,
Transportation.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7550. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this part --
(1) The term ''manufacturer'' as used in sections 7521, 7522, 7525,
7541, and 7542 of this title means any person engaged in the
manufacturing or assembling of new motor vehicles, new motor vehicle
engines, new nonroad vehicles or new nonroad engines, or importing such
vehicles or engines for resale, or who acts for and is under the control
of any such person in connection with the distribution of new motor
vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad
engines, but shall not include any dealer with respect to new motor
vehicles, new motor vehicle engines, new nonroad vehicles or new nonroad
engines received by him in commerce.
(2) The term ''motor vehicle'' means any self-propelled vehicle
designed for transporting persons or property on a street or highway.
(3) Except with respect to vehicles or engines imported or offered
for importation, the term ''new motor vehicle'' means a motor vehicle
the equitable or legal title to which has never been transferred to an
ultimate purchaser; and the term ''new motor vehicle engine'' means an
engine in a new motor vehicle or a motor vehicle engine the equitable or
legal title to which has never been transferred to the ultimate
purchaser; and with respect to imported vehicles or engines, such terms
mean a motor vehicle and engine, respectively, manufactured after the
effective date of a regulation issued under section 7521 of this title
which is applicable to such vehicle or engine (or which would be
applicable to such vehicle or engine had it been manufactured for
importation into the United States).
(4) The term ''dealer'' means any person who is engaged in the sale
or the distribution of new motor vehicles or new motor vehicle engines
to the ultimate purchaser.
(5) The term ''ultimate purchaser'' means, with respect to any new
motor vehicle or new motor vehicle engine, the first person who in good
faith purchases such new motor vehicle or new engine for purposes other
than resale.
(6) The term ''commerce'' means (A) commerce between any place in any
State and any place outside thereof; and (B) commerce wholly within the
District of Columbia.
(7) Vehicle curb weight, gross vehicle weight rating, light-duty
truck, light-duty vehicle, and loaded vehicle weight. -- The terms
''vehicle curb weight'', ''gross vehicle weight rating'' (GVWR),
''light-duty truck'' (LDT), light-duty vehicle, /1/ and ''loaded vehicle
weight'' (LVW) have the meaning provided in regulations promulgated by
the Administrator and in effect as of November 15, 1990. The
abbreviations in parentheses corresponding to any term referred to in
this paragraph shall have the same meaning as the corresponding term.
(8) Test weight. -- The term ''test weight'' and the abbreviation
''tw'' mean the vehicle curb weight added to the gross vehicle weight
rating (gvwr) and divided by 2.
(9) Motor vehicle or engine part manufacturer. -- The term ''motor
vehicle or engine part manufacturer'' as used in sections 7541 and 7542
of this title means any person engaged in the manufacturing, assembling
or rebuilding of any device, system, part, component or element of
design which is installed in or on motor vehicles or motor vehicle
engines.
(10) Nonroad engine. -- The term ''nonroad engine'' means an internal
combustion engine (including the fuel system) that is not used in a
motor vehicle or a vehicle used solely for competition, or that is not
subject to standards promulgated under section 7411 of this title or
section 7521 of this title.
(11) Nonroad vehicle. -- The term ''nonroad vehicle'' means a vehicle
that is powered by a nonroad engine and that is not a motor vehicle or a
vehicle used solely for competition.
(July 14, 1955, ch. 360, title II, 216, formerly 208, as added Oct.
20, 1965, Pub. L. 89-272, title I, 101(8), 79 Stat. 994, renumbered
212, and amended Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 503,
renumbered 213, and amended Dec. 31, 1970, Pub. L. 91-604, 8(a),
10(d), 11(a)(2)(A), 84 Stat. 1694, 1703, 1705, renumbered 214, June 22,
1974, Pub. L. 93-319, 10, 88 Stat. 261, renumbered 216, Aug. 7, 1977,
Pub. L. 95-95, title II, 224(d), 91 Stat. 767; Nov. 15, 1990, Pub. L.
101-549, title II, 223, 104 Stat. 2503.)
Section was formerly classified to section 1857f-7 of this title.
1990 -- Par. (1). Pub. L. 101-549, 223(b), inserted references to
new nonroad vehicles or new nonroad engines.
Pars. (7) to (11). Pub. L. 101-549, 223(a), added pars. (7) to
(11).
1970 -- Pub. L. 91-604, 11(a)(2)(A), substituted ''part'' for
''subchapter''.
Par. (1). Pub. L. 91-604, 10(d)(1), inserted reference to section
7521 of this title.
Par. (3). Pub. L. 91-604, 10(d)(2), inserted provisions which
defined such terms with respect to imported vehicles or engines.
1967 -- Pub. L. 90-148 inserted ''as used in sections 7522, 7525,
7541, and 7542 of this title'' after ''manufacturer'' in par. (1).
/1/ So in original. Probably should be set off by quotation marks.
42 USC -- 7551. Study and report on fuel consumption
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Following each motor vehicle model year, the Administrator of the
Environmental Protection Agency shall report to the Congress respecting
the motor vehicle fuel consumption associated with the standards
applicable for the immediately preceding model year.
(Pub. L. 95-95, title II, 203, Aug. 7, 1977, 91 Stat. 754; Pub. L.
97-375, title I, 106(a), Dec. 21, 1982, 96 Stat. 1820.)
Section was enacted as part of the Clean Air Act Amendments of 1977,
and not as part of the Clean Air Act which comprises this chapter.
1982 -- Subsec. (a). Pub. L. 97-375, 106(a)(2), struck out subsec.
(a) designation.
Subsec. (b). Pub. L. 97-375, 106(a)(1), struck out subsec. (b)
which directed the Secretaries of Energy and Transportation each to
submit to Congress separate reports on fuel consumption as promptly as
practicable after the submission by the Administrator of the fuel
consumption report referred to in former subsec. (a) of this section.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7552. Motor vehicle compliance program fees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Fee collection
Consistent with section 9701 of title 31, the Administrator may
promulgate (and from time to time revise) regulations establishing fees
to recover all reasonable costs to the Administrator associated with --
(1) new vehicle or engine certification under section 7525(a) of this
title or part C of this subchapter,
(2) new vehicle or engine compliance monitoring and testing under
section 7525(b) of this title or part C of this subchapter, and
(3) in-use vehicle or engine compliance monitoring and testing under
section 7541(c) of this title or part C of this subchapter.
The Administrator may establish for all foreign and domestic
manufacturers a fee schedule based on such factors as the Administrator
finds appropriate and equitable and nondiscriminatory, including the
number of vehicles or engines produced under a certificate of
conformity. In the case of heavy-duty engine and vehicle manufacturers,
such fees shall not exceed a reasonable amount to recover an appropriate
portion of such reasonable costs.
(b) Special Treasury fund
Any fees collected under this section shall be deposited in a special
fund in the United States Treasury for licensing and other services
which thereafter shall be available for appropriation, to remain
available until expended, to carry out the Agency's activities for which
the fees were collected.
(c) Limitation on fund use
Moneys in the special fund referred to in subsection (b) of this
section shall not be used until after the first fiscal year commencing
after the first July 1 when fees are paid into the fund.
(d) Administrator's testing authority
Nothing in this subsection shall be construed to limit the
Administrator's authority to require manufacturer or confirmatory
testing as provided in this part.
(July 14, 1955, ch. 360, title II, 217, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 225, 104 Stat. 2504.)
42 USC -- 7553. Prohibition on production of engines requiring leaded
gasoline
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator shall promulgate regulations applicable to motor
vehicle engines and nonroad engines manufactured after model year 1992
that prohibit the manufacture, sale, or introduction into commerce of
any engine that requires leaded gasoline.
(July 14, 1955, ch. 360, title II, 218, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 226, 104 Stat. 2505.)
42 USC -- 7554. Urban bus standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Standards for model years after 1993
Not later than January 1, 1992, the Administrator shall promulgate
regulations under section 7521(a) of this title applicable to urban
buses for the model year 1994 and thereafter. Such standards shall be
based on the best technology that can reasonably be anticipated to be
available at the time such measures are to be implemented, taking costs,
safety, energy, lead time, and other relevant factors into account.
Such regulations shall require that such urban buses comply with the
provisions of subsection (b) of this section (and subsection (c) of this
subsection, /1/ if applicable) in addition to compliance with the
standards applicable under section 7521(a) of this title for heavy-duty
vehicles of the same type and model year.
(b) PM standard
(1) 50 percent reduction
The standards under section 7521(a) of this title applicable to urban
buses shall require that, effective for the model year 1994 and
thereafter, emissions of particulate matter (PM) from urban buses shall
not exceed 50 percent of the emissions of particulate matter (PM)
allowed under the emission standard applicable under section 7521(a) of
this title as of November 15, 1990, for particulate matter (PM) in the
case of heavy-duty diesel vehicles and engines manufactured in the model
year 1994.
(2) Revised reduction
The Administrator shall increase the level of emissions of
particulate matter allowed under the standard referred to in paragraph
(1) if the Administrator determines that the 50 percent reduction
referred to in paragraph (1) is not technologically achievable, taking
into account durability, costs, lead time, safety, and other relevant
factors. The Administrator may not increase such level of emissions
above 70 percent of the emissions of particulate matter (PM) allowed
under the emission standard applicable under section 7521(a) of this
title as of November 15, 1990, for particulate matter (PM) in the case
of heavy-duty diesel vehicles and engines manufactured in the model year
1994.
(3) Determination as part of rule
As part of the rulemaking under subsection (a) of this section, the
Administrator shall make a determination as to whether the 50 percent
reduction referred to in paragraph (1) is technologically achievable,
taking into account durability, costs, lead time, safety, and other
relevant factors.
(c) Low-polluting fuel requirement
(1) Annual testing
Beginning with model year 1994 buses, the Administrator shall conduct
annual tests of a representative sample of operating urban buses subject
to the particulate matter (PM) standard applicable pursuant to
subsection (b) of this section to determine whether such buses comply
with such standard in use over their full useful life.
(2) Promulgation of additional low-polluting fuel requirement
(A) If the Administrator determines, based on the testing under
paragraph (1), that urban buses subject to the particulate matter (PM)
standard applicable pursuant to subsection (b) of this section do not
comply with such standard in use over their full useful life, he shall
revise the standards applicable to such buses to require (in addition to
compliance with the PM standard applicable pursuant to subsection (b) of
this section) that all new urban buses purchased or placed into service
by owners or operators of urban buses in all metropolitan statistical
areas or consolidated metropolitan statistical areas with a 1980
population of 750,000 or more shall be capable of operating, and shall
be exclusively operated, on low-polluting fuels. The Administrator
shall establish the pass-fail rate for purposes of testing under this
subparagraph.
(B) The Administrator shall promulgate a schedule phasing in any
low-polluting fuel requirement established pursuant to this paragraph to
an increasing percentage of new urban buses purchased or placed into
service in each of the first 5 model years commencing 3 years after the
determination under subparagraph (A). Under such schedule 100 percent
of new urban buses placed into service in the fifth model year
commencing 3 years after the determination under subparagraph (A) shall
comply with the low-polluting fuel requirement established pursuant to
this paragraph.
(C) The Administrator may extend the requirements of this paragraph
to metropolitan statistical areas or consolidated metropolitan
statistical areas with a 1980 population of less than 750,000, if the
Administrator determines that a significant benefit to public health
could be expected to result from such extension.
(d) Retrofit requirements
Not later than 12 months after November 15, 1990, the Administrator
shall promulgate regulations under section 7521(a) of this title
requiring that urban buses which --
(1) are operating in areas referred to in subparagraph (A) of
subsection (c)(2) of this section (or subparagraph (C) of subsection
(c)(2) of this section if the Administrator has taken action under that
subparagraph);
(2) were not subject to standards in effect under the regulations
under subsection (a) of this section; and
(3) have their engines replaced or rebuilt after January 1, 1995,
shall comply with an emissions standard or emissions control
technology requirement established by the Administrator in such
regulations. Such emissions standard or emissions control technology
requirement shall reflect the best retrofit technology and maintenance
practices reasonably achievable.
(e) Procedures for administration and enforcement
The Administrator shall establish, within 18 months after November
15, 1990, and in accordance with section 7525(h) of this title,
procedures for the administration and enforcement of standards for buses
subject to standards under this section, testing procedures, sampling
protocols, in-use compliance requirements, and criteria governing
evaluation of buses. Procedures for testing (including, but not limited
to, certification testing) shall reflect actual operating conditions.
(f) Definitions
For purposes of this section --
(1) Urban bus
The term ''urban bus'' has the meaning provided under regulations of
the Administrator promulgated under section 7521(a) of this title.
(2) Low-polluting fuel
The term ''low-polluting fuel'' means methanol, ethanol, propane, or
natural gas, or any comparably low-polluting fuel. In determining
whether a fuel is comparably low-polluting, the Administrator shall
consider both the level of emissions of air pollutants from vehicles
using the fuel and the contribution of such emissions to ambient levels
of air pollutants. For purposes of this paragraph, the term
''methanol'' includes any fuel which contains at least 85 percent
methanol unless the Administrator increases such percentage as he deems
appropriate to protect public health and welfare.
(July 14, 1955, ch. 360, title II, 219, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 227((a)), 104 Stat. 2505.)
/1/ So in original. Probably should be ''section,''.
42 USC -- Part B -- Aircraft Emission Standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7571. Establishment of standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Study; proposed standards; hearings; issuance of regulations
(1) Within 90 days after December 31, 1970, the Administrator shall
commence a study and investigation of emissions of air pollutants from
aircraft in order to determine --
(A) the extent to which such emissions affect air quality in air
quality control regions throughout the United States, and
(B) the technological feasibility of controlling such emissions.
(2) The Administrator shall, from time to time, issue proposed
emission standards applicable to the emission of any air pollutant from
any class or classes of aircraft engines which in his judgment causes,
or contributes to, air pollution which may reasonably be anticipated to
endanger public health or welfare.
(3) The Administrator shall hold public hearings with respect to such
proposed standards. Such hearings shall, to the extent practicable, be
held in air quality control regions which are most seriously affected by
aircraft emissions. Within 90 days after the issuance of such proposed
regulations, he shall issue such regulations with such modifications as
he deems appropriate. Such regulations may be revised from time to
time.
(b) Effective date of regulations
Any regulation prescribed under this section (and any revision
thereof) shall take effect after such period as the Administrator finds
necessary (after consultation with the Secretary of Transportation) to
permit the development and application of the requisite technology,
giving appropriate consideration to the cost of compliance within such
period.
(c) Regulations which create hazards to aircraft safety
Any regulations in effect under this section on August 7, 1977, or
proposed or promulgated thereafter, or amendments thereto, with respect
to aircraft shall not apply if disapproved by the President, after
notice and opportunity for public hearing, on the basis of a finding by
the Secretary of Transportation that any such regulation would create a
hazard to aircraft safety. Any such finding shall include a reasonably
specific statement of the basis upon which the finding was made.
(July 14, 1955, ch. 360, title II, 231, as added Dec. 31, 1970, Pub.
L. 91-604, 11(a)(1), 84 Stat. 1703, and amended Aug. 7, 1977, Pub. L.
95-95, title II, 225, title IV, 401(f), 91 Stat. 769, 791.)
Section was formerly classified to section 1857f-9 of this title.
1977 -- Subsec. (a)(2). Pub. L. 95-95, 401(f), substituted ''The
Administrator shall, from time to time, issue proposed emission
standards applicable to the emission of any air pollutant from any class
or classes of aircraft engines which in his judgment causes, or
contributes to, air pollution which may reasonably be anticipated to
endanger public health or welfare'' for ''Within 180 days after
commencing such study and investigation, the Administrator shall publish
a report of such study and investigation and shall issue proposed
emission standards applicable to emissions of any air pollutant from any
class or classes of aircraft or aircraft engines which in his judgment
cause or contribute to or are likely to cause or contribute to air
pollution which endangers the public health or welfare''.
Subsec. (c). Pub. L. 95-95, 225, substituted ''Any regulations in
effect under this section on August 7, 1977, or proposed or promulgated
thereafter, or amendments thereto, with respect to aircraft shall not
apply if disapproved by the President, after notice and opportunity for
public hearing, on the basis of a finding by the Secretary of
Transportation that any such regulation would create a hazard to
aircraft safety'' for ''Any regulations under this section, or
amendments thereto, with respect to aircraft, shall be prescribed only
after consultation with the Secretary of Transportation in order to
assure appropriate consideration for aircraft safety'' and inserted
provision that findings include a reasonably specific statement of the
basis upon which the finding was made.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
Pub. L. 101-549, title II, 233, Nov. 15, 1990, 104 Stat. 2529,
provided that:
''(a) Study. -- The Administrator of the Environmental Protection
Agency and the Secretary of Transportation, in consultation with the
Secretary of Defense, shall commence a study and investigation of the
testing of uninstalled aircraft engines in enclosed test cells that
shall address at a minimum the following issues and such other issues as
they shall deem appropriate --
''(1) whether technologies exist to control some or all emissions of
oxides of nitrogen from test cells;
''(2) the effectiveness of such technologies;
''(3) the cost of implementing such technologies;
''(4) whether such technologies affect the safety, design, structure,
operation, or performance of aircraft engines;
''(5) whether such technologies impair the effectiveness and accuracy
of aircraft engine safety design, and performance tests conducted in
test cells; and
''(6) the impact of not controlling such oxides of nitrogen in the
applicable nonattainment areas and on other sources, stationary and
mobile, on oxides of nitrogen in such areas.
''(b) Report, Authority To Regulate. -- Not later than 24 months
after enactment of the Clean Air Act Amendments of 1990 (Nov. 15, 1990),
the Administrator of the Environmental Protection Agency and the
Secretary of Transportation shall submit to Congress a report of the
study conducted under this section. Following the completion of such
study, any of the States may adopt or enforce any standard for emissions
of oxides of nitrogen from test cells only after issuing a public notice
stating whether such standards are in accordance with the findings of
the study.''
42 USC -- 7572. Enforcement of standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations to insure compliance with standards
The Secretary of Transportation, after consultation with the
Administrator, shall prescribe regulations to insure compliance with all
standards prescribed under section 7571 of this title by the
Administrator. The regulations of the Secretary of Transportation shall
include provisions making such standards applicable in the issuance,
amendment, modification, suspension, or revocation of any certificate
authorized by the Federal Aviation Act (49 App. U.S.C. 1301 et seq.) or
the Department of Transportation Act. Such Secretary shall insure that
all necessary inspections are accomplished, and, /1/ may execute any
power or duty vested in him by any other provision of law in the
execution of all powers and duties vested in him under this section.
(b) Notice and appeal rights
In any action to amend, modify, suspend, or revoke a certificate in
which violation of an emission standard prescribed under section 7571 of
this title or of a regulation prescribed under subsection (a) of this
section is at issue, the certificate holder shall have the same notice
and appeal rights as are prescribed for such holders in the Federal
Aviation Act of 1958 (49 App. U.S.C. 1301 et seq.) or the Department of
Transportation Act, except that in any appeal to the National
Transportation Safety Board, the Board may amend, modify, or revoke the
order of the Secretary of Transportation only if it finds no violation
of such standard or regulation and that such amendment, modification, or
revocation is consistent with safety in air transportation.
(July 14, 1955, ch. 360, title II, 232, as added Dec. 31, 1970, Pub.
L. 91-604, 11(a)(1), 84 Stat. 1704.)
The Federal Aviation Act and the Federal Aviation Act of 1958,
referred to in subsecs. (a) and (b), is Pub. L. 85-726, Aug. 23,
1958, 72 Stat. 731, as amended, which is classified principally to
chapter 20 ( 1301 et seq.) of Title 49, Appendix, Transportation. For
complete classification of this Act to the Code, see Short Title note
set out under section 1301 of Title 49, Appendix, and Tables.
The Department of Transportation Act, referred to in subsecs. (a)
and (b), is Pub. L. 89-670, Oct. 15, 1966, 80 Stat. 931, as amended,
which was classified principally to chapter 23 ( 1651 et seq.) of former
Title 49, Transportation. The Act was substantially repealed and the
provisions thereof reenacted in subtitle I ( 101 et seq.) of Title 49,
Transportation, by Pub. L. 97-449, Jan. 12, 1983, 96 Stat. 2413.
Section was formerly classified to section 1857f-10 of this title.
/1/ So in original. The comma probably should not appear.
42 USC -- 7573. State standards and controls
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
No State or political subdivision thereof may adopt or attempt to
enforce any standard respecting emissions of any air pollutant from any
aircraft or engine thereof unless such standard is identical to a
standard applicable to such aircraft under this part.
(July 14, 1955, ch. 360, title II, 233, as added Dec. 31, 1970, Pub.
L. 91-604, 11(a)(1), 84 Stat. 1704.)
Section was formerly classified to section 1857f-11 of this title.
42 USC -- 7574. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Terms used in this part (other than Administrator) shall have the
same meaning as such terms have under section 1301 of title 49,
Appendix.
(July 14, 1955, ch. 360, title II, 234, as added Dec. 31, 1970, Pub.
L. 91-604, 11(a)(1), 84 Stat. 1705.)
Section was formerly classified to section 1857f-12 of this title.
42 USC -- Part C -- Clean Fuel Vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7581. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this part --
(1) Terms defined in part A
The definitions applicable to part A under section 7550 of this title
shall also apply for purposes of this part.
(2) Clean alternative fuel
The term ''clean alternative fuel'' means any fuel (including
methanol, ethanol, or other alcohols (including any mixture thereof
containing 85 percent or more by volume of such alcohol with gasoline or
other fuels), reformulated gasoline, diesel, natural gas, liquefied
petroleum gas, and hydrogen) or power source (including electricity)
used in a clean-fuel vehicle that complies with the standards and
requirements applicable to such vehicle under this subchapter when using
such fuel or power source. In the case of any flexible fuel vehicle or
dual fuel vehicle, the term ''clean alternative fuel'' means only a fuel
with respect to which such vehicle was certified as a clean-fuel vehicle
meeting the standards applicable to clean-fuel vehicles under section
7583(d)(2) of this title when operating on clean alternative fuel (or
any CARB standards which replaces such standards pursuant to section
7583(e) of this title).
(3) NMOG
The term nonmethane organic gas (''NMOG'') means the sum of
nonoxygenated and oxygenated hydrocarbons contained in a gas sample,
including, at a minimum, all oxygenated organic gases containing 5 or
fewer carbon atoms (i.e., aldehydes, ketones, alcohols, ethers, etc.),
and all known alkanes, alkenes, alkynes, and aromatics containing 12 or
fewer carbon atoms. To demonstrate compliance with a NMOG standard,
NMOG emissions shall be measured in accordance with the ''California
Non-Methane Organic Gas Test Procedures''. In the case of vehicles
using fuels other than base gasoline, the level of NMOG emissions shall
be adjusted based on the reactivity of the emissions relative to
vehicles using base gasoline.
(4) Base gasoline
The term ''base gasoline'' means gasoline which meets the following
specifications:
Specifications of Base Gasoline Used
as Basis for Reactivity Readjustment: API gravity 57.8 Sulfur,
ppm 317 Color Purple Benzene, vol. % 1.35 Reid vapor pressure 8.7
Drivability 1195 Antiknock index 87.3 Distillation, D-86 F IBP 92
10% 126 50% 219 90% 327 EP 414 Hydrocarbon Type, Vol. % FIA:
Aromatics 30.9 Olefins 8.2 Saturates 60.9
The Administrator shall modify the definitions of NMOG, base
gasoline, and the methods for making reactivity adjustments, to conform
to the definitions and method used in California under the Low-Emission
Vehicle and Clean Fuel Regulations of the California Air Resources
Board, so long as the California definitions are, in the aggregate, at
least as protective of public health and welfare as the definitions in
this section.
(5) Covered fleet
The term ''covered fleet'' means 10 or more motor vehicles which are
owned or operated by a single person. In determining the number of
vehicles owned or operated by a single person for purposes of this
paragraph, all motor vehicles owned or operated, leased or otherwise
controlled by such person, by any person who controls such person, by
any person controlled by such person, and by any person under common
control with such person shall be treated as owned by such person. The
term ''covered fleet'' shall not include motor vehicles held for lease
or rental to the general public, motor vehicles held for sale by motor
vehicle dealers (including demonstration vehicles), motor vehicles used
for motor vehicle manufacturer product evaluations or tests, law
enforcement and other emergency vehicles, or nonroad vehicles (including
farm and construction vehicles).
(6) Covered fleet vehicle
The term ''covered fleet vehicle'' means only a motor vehicle which
is --
(i) in a vehicle class for which standards are applicable under this
part; and
(ii) in a covered fleet which is centrally fueled (or capable of
being centrally fueled).
No vehicle which under normal operations is garaged at a personal
residence at night shall be considered to be a vehicle which is capable
of being centrally fueled within the meaning of this paragraph.
(7) Clean-fuel vehicle
The term ''clean-fuel vehicle'' means a vehicle in a class or
category of vehicles which has been certified to meet for any model year
the clean-fuel vehicle standards applicable under this part for that
model year to clean-fuel vehicles in that class or category.
(July 14, 1955, ch. 360, title II, 241, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2511.)
42 USC -- 7582. Requirements applicable to clean-fuel vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Promulgation of standards
Not later than 24 months after November 15, 1990, the Administrator
shall promulgate regulations under this part containing clean-fuel
vehicle standards for the clean-fuel vehicles specified in this part.
(b) Other requirements
Clean-fuel vehicles of up to 8,500 gvwr subject to standards set
forth in this part shall comply with all motor vehicle requirements of
this subchapter (such as requirements relating to on-board diagnostics,
evaporative emissions, etc.) which are applicable to conventional
gasoline-fueled vehicles of the same category and model year, except as
provided in section 7584 of this title with respect to administration
and enforcement, and except to the extent that any such requirement is
in conflict with the provisions of this part. Clean-fuel vehicles of
8,500 gvwr or greater subject to standards set forth in this part shall
comply with all requirements of this subchapter which are applicable in
the case of conventional gasoline-fueled or diesel fueled vehicles of
the same category and model year, except as provided in section 7584 of
this title with respect to administration and enforcement, and except to
the extent that any such requirement is in conflict with the provisions
of this part.
(c) In-use useful life and testing
(1) In the case of light-duty vehicles and light-duty trucks up to
6,000 lbs gvwr, the useful life for purposes of determining in-use
compliance with the standards under section 7583 of this title shall be
--
(A) a period of 5 years or 50,000 miles (or the equivalent) whichever
first occurs, in the case of standards applicable for purposes of
certification at 50,000 miles; and
(B) a period of 10 years or 100,000 miles (or the equivalent)
whichever first occurs, in the case of standards applicable for purposes
of certification at 100,000 miles, except that in-use testing shall not
be done for a period beyond 7 years or 75,000 miles (or the equivalent)
whichever first occurs.
(2) In the case of light-duty trucks of more than 6,000 lbs gvwr, the
useful life for purposes of determining in-use compliance with the
standards under section 7583 of this title shall be --
(A) a period of 5 years or 50,000 miles (or the equivalent) whichever
first occurs in the case of standards applicable for purposes of
certification at 50,000 miles; and
(B) a period of 11 years or 120,000 miles (or the equivalent)
whichever first occurs in the case of standards applicable for purposes
of certification at 120,000 miles, except that in-use testing shall not
be done for a period beyond 7 years or 90,000 miles (or the equivalent)
whichever first occurs.
(July 14, 1955, ch. 360, title II, 242, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2513.)
42 USC -- 7583. Standards for light-duty clean-fuel vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Exhaust standards for light-duty vehicles and certain light-duty
trucks
The standards set forth in this subsection shall apply in the case of
clean-fuel vehicles which are light-duty trucks of up to 6,000 lbs.
gross vehicle weight rating (gvwr) (but not including light-duty trucks
of more than 3,750 lbs. loaded vehicle weight (lvw)) or light-duty
vehicles:
(1) Phase I
Beginning with model year 1996, for the air pollutants specified in
the following table, the clean-fuel vehicle standards under this section
shall provide that vehicle exhaust emissions shall not exceed the levels
specified in the following table:
6,000 Lbs. GVWR and Light-Duty Vehicles
(2) Phase II
Beginning with model year 2001, for air pollutants specified in the
following table, the clean-fuel vehicle standards under this section
shall provide that vehicle exhaust emissions shall not exceed the levels
specified in the following table.
6,000 Lbs. GVWR and Light-Duty Vehicles
(b) Exhaust standards for light-duty trucks of more than 3,750 lbs.
LVW and up to 5,750 lbs. LVW and up to 6,000 lbs. GVWR
The standards set forth in this paragraph shall apply in the case of
clean-fuel vehicles which are light-duty trucks of more than 3,750 lbs.
loaded vehicle weight (lvw) but not more than 5,750 lbs. lvw and not
more than 6,000 lbs. gross weight rating (GVWR):
(1) Phase I
Beginning with model year 1996, for the air pollutants specified in
the following table, the clean-fuel vehicle standards under this section
shall provide that vehicle exhaust emissions shall not exceed the levels
specified in the following table.
5,750 Lbs. LVW and up to 6,000 Lbs. GVWR
(2) Phase II
Beginning with model year 2001, for the air pollutants specified in
the following table, the clean-fuel vehicle standards under this section
shall provide that vehicle exhaust emissions shall not exceed the levels
specified in the following table.
to 5,750 Lbs. LVW and up to 6,000 Lbs. GVWR
(c) Exhaust standards for light-duty trucks greater than 6,000 lbs.
GVWR
The standards set forth in this subsection shall apply in the case of
clean-fuel vehicles which are light-duty trucks of more than 6,000 lbs.
gross weight rating (GVWR) and less than or equal to 8,500 lbs. GVWR,
beginning with model year 1998. For the air pollutants specified in the
following table, the clean-fuel vehicle standards under this section
shall provide that vehicle exhaust emissions of vehicles within the test
weight categories specified in the following table shall not exceed the
levels specified in such table.
lbs. tw
lbs. gvwr
(d) Flexible and dual-fuel vehicles
(1) In general
The Administrator shall establish standards and requirements under
this section for the model year 1996 and thereafter for vehicles
weighing not more than 8,500 lbs. gvwr which are capable of operating
on more than one fuel. Such standards shall require that such vehicles
meet the exhaust standards applicable under subsection /1/ (a), (b), and
(c) of this section for CO, NOx, and HCHO, and if appropriate, PM for
single-fuel vehicles of the same vehicle category and model year.
(2) Exhaust NMOG standard for operation on clean alternative fuel
In addition to standards for the pollutants referred to in paragraph
(1), the standards established under paragraph (1) shall require that
vehicle exhaust emissions of NMOG not exceed the levels (expressed in
grams per mile) specified in the tables below when the vehicle is
operated on the clean alternative fuel for which such vehicle is
certified:
vehicles
(3) NMOG standard for operation on conventional fuel
In addition to the standards referred to in paragraph (1), the
standards established under paragraph (1) shall require that vehicle
exhaust emissions of NMOG not exceed the levels (expressed in grams per
mile) specified in the tables below:
Light-duty vehicles
(e) Replacement by CARB standards
(1) Single set of CARB standards
If the State of California promulgates regulations establishing and
implementing a single set of standards applicable in California pursuant
to a waiver approved under section 7543 of this title to any category of
vehicles referred to in subsection (a), (b), (c), or (d) of this section
and such set of standards is, in the aggregate, at least as protective
of public health and welfare as the otherwise applicable standards set
forth in section 7582 of this title and subsection (a), (b), (c), or (d)
of this section, such set of California standards shall apply to
clean-fuel vehicles in such category in lieu of the standards otherwise
applicable under section 7582 of this title and subsection (a), (b),
(c), or (d) of this section, as the case may be.
(2) Multiple sets of CARB standards
If the State of California promulgates regulations establishing and
implementing several different sets of standards applicable in
California pursuant to a waiver approved under section 7543 of this
title to any category of vehicles referred to in subsection (a), (b),
(c), or (d) of this section and each of such sets of California
standards is, in the aggregate, at least as protective of public health
and welfare as the otherwise applicable standards set forth in section
7582 of this title and subsection (a), (b), (c), or (d) of this section,
such standards shall be treated as ''qualifying California standards''
for purposes of this paragraph. Where more than one set of qualifying
standards are established and administered by the State of California,
the least stringent set of qualifying California standards shall apply
to the clean-fuel vehicles concerned in lieu of the standards otherwise
applicable to such vehicles under section 7582 of this title and this
section.
(f) Less stringent CARB standards
If the Low-Emission Vehicle and Clean Fuels Regulations of the
California Air Resources Board applicable to any category of vehicles
referred to in subsection (a), (b), (c), or (d) of this section are
modified after November 15, 1990, to provide an emissions standard which
is less stringent than the otherwise applicable standard set forth in
subsection (a), (b), (c), or (d) of this section, or if any effective
date contained in such regulations is delayed, such modified standards
or such delay (or both, as the case may be) shall apply, for an interim
period, in lieu of the standard or effective date otherwise applicable
under subsection (a), (b), (c), or (d) of this section to any vehicles
covered by such modified standard or delayed effective date. The
interim period shall be a period of not more than 2 model years from the
effective date otherwise applicable under subsection (a), (b), (c), or
(d) of this section. After such interim period, the otherwise
applicable standard set forth in subsection (a), (b), (c), or (d) of
this section shall take effect with respect to such vehicles (unless
subsequently replaced under subsection (e) of this section).
(g) Not applicable to heavy-duty vehicles
Notwithstanding any provision of the Low-Emission Vehicle and Clean
Fuels Regulations of the California Air Resources Board nothing in this
section shall apply to heavy-duty engines in vehicles of more than 8,500
lbs. GVWR.
(July 14, 1955, ch. 360, title II, 243, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2514.)
/1/ So in original. Probably should be ''subsections''.
42 USC -- 7584. Administration and enforcement as per California
standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Where the numerical clean-fuel vehicle standards applicable under
this part to vehicles of not more than 8,500 lbs. GVWR are the same as
numerical emission standards applicable in California under the
Low-Emission Vehicle and Clean Fuels Regulations of the California Air
Resources Board (''CARB''), such standards shall be administered and
enforced by the Administrator --
(1) in the same manner and with the same flexibility as the State of
California administers and enforces corresponding standards applicable
under the Low-Emission Vehicle and Clean Fuels Regulations of the
California Air Resources Board (''CARB''); and
(2) subject to the same requirements, and utilizing the same
interpretations and policy judgments, as are applicable in the case of
such CARB standards, including, but not limited to, requirements
regarding certification, production-line testing, and in-use compliance,
unless the Administrator determines (in promulgating the rules
establishing the clean fuel vehicle program under this section) that any
such administration and enforcement would not meet the criteria for a
waiver under section 7543 of this title. Nothing in this section shall
apply in the case of standards under section 7585 of this title for
heavy-duty vehicles.
(July 14, 1955, ch. 360, title II, 244, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2519.)
42 USC -- 7585. Standards for heavy-duty clean-fuel vehicles (GVWR
above 8,500 up to 26,000 lbs.)
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Model years after 1997; combined NOx and NMHC standard
For classes or categories of heavy-duty vehicles or engines
manufactured for the model year 1998 or thereafter and having a GVWR
greater than 8,500 lbs. and up to 26,000 lbs. GVWR, the standards
under this part for clean-fuel vehicles shall require that combined
emissions of oxides of nitrogen (NOx) and nonmethane hydrocarbons (NMHC)
shall not exceed 3.15 grams per brake horsepower hour (equivalent to 50
percent of the combined emission standards applicable under section 7521
of this title for such air pollutants in the case of a conventional
model year 1994 heavy-duty diesel-fueled vehicle or engine). No
standard shall be promulgated as provided in this section for any
heavy-duty vehicle of more than 26,000 lbs. GVWR.
(b) Revised standards that are less stringent
(1) The Administrator may promulgate a revised less stringent
standard for the vehicles or engines referred to in subsection (a) of
this section if the Administrator determines that the 50 percent
reduction required under subsection (a) of this section is not
technologically feasible for clean diesel-fueled vehicles and engines,
taking into account durability, costs, lead time, safety, and other
relevant factors. To provide adequate lead time the Administrator shall
make a determination with regard to the technological feasibility of
such 50 percent reduction before December 31, 1993.
(2) Any person may at any time petition the Administrator to make a
determination under paragraph (1). The Administrator shall act on such
a petition within 6 months after the petition is filed.
(3) Any revised less stringent standards promulgated as provided in
this subsection shall require at least a 30 percent reduction in lieu of
the 50 percent reduction referred to in paragraph (1).
(July 14, 1955, ch. 360, title II, 245, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2519.)
42 USC -- 7586. Centrally fueled fleets
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Fleet program required for certain nonattainment areas
(1) SIP revision
Each State in which there is located all or part of a covered area
(as defined in paragraph (2)) shall submit, within 42 months after
November 15, 1990, a State implementation plan revision under section
7410 of this title and part D of subchapter I of this chapter to
establish a clean-fuel vehicle program for fleets under this section.
(2) Covered areas
For purposes of this subsection, each of the following shall be a
''covered area'':
(A) Ozone nonattainment areas
Any ozone nonattainment area with a 1980 population of 250,000 or
more classified under subpart 2 of part D of subchapter I of this
chapter as Serious, Severe, or Extreme based on data for the calendar
years 1987, 1988, and 1989. In determining the ozone nonattainment
areas to be treated as covered areas pursuant to this subparagraph, the
Administrator shall use the most recent interpretation methodology
issued by the Administrator prior to November 15, 1990.
(B) Carbon monoxide nonattainment areas
Any carbon monoxide nonattainment area with a 1980 population of
250,000 or more and a carbon monoxide design value at or above 16.0
parts per million based on data for calendar years 1988 and 1989 (as
calculated according to the most recent interpretation methodology
issued prior to November 15, 1990, by the United States Environmental
Protection Agency), excluding those carbon monoxide nonattainment areas
in which mobile sources do not contribute significantly to carbon
monoxide exceedances.
(3) Plan revisions for reclassified areas
In the case of ozone nonattainment areas reclassified as Serious,
Severe, or Extreme under part D of subchapter I of this chapter with a
1980 population of 250,000 or more, the State shall submit a plan
revision meeting the requirements of this subsection within 1 year after
reclassification. Such plan revision shall implement the requirements
applicable under this subsection at the time of reclassification and
thereafter, except that the Administrator may adjust for a limited
period the deadlines for compliance where compliance with such deadlines
would be infeasible.
(4) Consultation; consideration of factors
Each State required to submit an implementation plan revision under
this subsection shall develop such revision in consultation with fleet
operators, vehicle manufacturers, fuel producers and distributors, motor
vehicle fuel, and other interested parties, taking into consideration
operational range, specialty uses, vehicle and fuel availability, costs,
safety, resale values of vehicles and equipment and other relevant
factors.
(b) Phase-in of requirements
The plan revision required under this section shall contain
provisions requiring that at least a specified percentage of all new
covered fleet vehicles in model year 1998 and thereafter purchased by
each covered fleet operator in each covered area shall be clean-fuel
vehicles and shall use clean alternative fuels when operating in the
covered area. For the applicable model years (MY) specified in the
following table and thereafter, the specified percentage shall be as
provided in the table for the vehicle types set forth in the table:
(c) Accelerated standard for light-duty trucks up to 6,000 lbs. GVWR
and light-duty vehicles
Notwithstanding the model years for which clean-fuel vehicle
standards are applicable as provided in section 7583 of this title, for
purposes of this section, light duty /1/ trucks of up to 6,000 lbs.
GVWR and light-duty vehicles manufactured in model years 1998 through
model year 2000 shall be treated as clean-fuel vehicles only if such
vehicles comply with the standards applicable under section 7583 of this
title for vehicles in the same class for the model year 2001. The
requirements of subsection (b) of this section shall take effect on the
earlier of the following:
(1) The first model year after model year 1997 in which new
light-duty trucks up to 6,000 lbs. GVWR and light-duty vehicles which
comply with the model year 2001 standards under section 7583 of this
title are offered for sale in California.
(2) Model year 2001.
Whenever the effective date of subsection (b) of this section is
delayed pursuant to paragraph (1) of this subsection, the phase-in
schedule under subsection (b) of this section shall be modified to
commence with the model year referred to in paragraph (1) in lieu of
model year 1998.
(d) Choice of vehicles and fuel
The plan revision under this subsection shall provide that the choice
of clean-fuel vehicles and clean alternative fuels shall be made by the
covered fleet operator subject to the requirements of this subsection.
(e) Availability of clean alternative fuel
The plan revision shall require fuel providers to make clean
alternative fuel available to covered fleet operators at locations at
which covered fleet vehicles are centrally fueled.
(f) Credits
(1) Issuance of credits
The State plan revision required under this section shall provide for
the issuance by the State of appropriate credits to a fleet operator for
any of the following (or any combination thereof):
(A) The purchase of more clean-fuel vehicles than required under this
section.
(B) The purchase of clean fuel /2/ vehicles which meet more stringent
standards established by the Administrator pursuant to paragraph (4).
(C) The purchase of vehicles in categories which are not covered by
this section but which meet standards established for such vehicles
under paragraph (4).
(2) Use of credits; limitations based on weight classes
(A) Use of credits
Credits under this subsection may be used by the person holding such
credits to demonstrate compliance with this section or may be traded or
sold for use by any other person to demonstrate compliance with other
requirements applicable under this section in the same nonattainment
area. Credits obtained at any time may be held or banked for use at any
later time, and when so used, such credits shall maintain the same value
as if used at an earlier date.
(B) Limitations based on weight classes
Credits issued with respect to the purchase of vehicles of up to
8,500 lbs. GVWR may not be used to demonstrate compliance by any person
with the requirements applicable under this subsection to vehicles of
more than 8,500 lbs. GVWR. Credits issued with respect to the purchase
of vehicles of more than 8,500 lbs. GVWR may not be used to demonstrate
compliance by any person with the requirements applicable under this
subsection to vehicles weighing up to 8,500 lbs. GVWR.
(C) Weighting
Credits issued for purchase of a clean fuel /2/ vehicle under this
subsection shall be adjusted with appropriate weighting to reflect the
level of emission reduction achieved by the vehicle.
(3) Regulations and administration
Within 12 months after November 15, 1990, the Administrator shall
promulgate regulations for such credit program. The State shall
administer the credit program established under this subsection.
(4) Standards for issuing credits for cleaner vehicles
Solely for purposes of issuing credits under paragraph (1)(B), the
Administrator shall establish under this paragraph standards for
Ultra-Low Emission Vehicles (''ULEV''s) and Zero Emissions Vehicles
(''ZEV''s) which shall be more stringent than those otherwise applicable
to clean-fuel vehicles under this part. The Administrator shall certify
clean fuel /2/ vehicles as complying with such more stringent standards,
and administer and enforce such more stringent standards, in the same
manner as in the case of the otherwise applicable clean-fuel vehicle
standards established under this section. The standards established by
the Administrator under this paragraph for vehicles under 8,500 lbs.
GVWR or greater shall conform as closely as possible to standards which
are established by the State of California for ULEV and ZEV vehicles in
the same class. For vehicles of 8,500 lbs. GVWR or more, the
Administrator shall promulgate comparable standards for purposes of this
subsection.
(5) Early fleet credits
The State plan revision shall provide credits under this subsection
to fleet operators that purchase vehicles certified to meet clean-fuel
vehicle standards under this part during any period after approval of
the plan revision and prior to the effective date of the fleet program
under this section.
(g) Availability to public
At any facility owned or operated by a department, agency, or
instrumentality of the United States where vehicles subject to this
subsection are supplied with clean alternative fuel, such fuel shall be
offered for sale to the public for use in other vehicles during
reasonable business times and subject to national security concerns,
unless such fuel is commercially available for vehicles in the vicinity
of such Federal facilities.
(h) Transportation control measures
The Administrator shall by rule, within 1 year after November 15,
1990, ensure that certain transportation control measures including
time-of-day or day-of-week restrictions, and other similar measures that
restrict vehicle usage, do not apply to any clean-fuel vehicle that
meets the requirements of this section. This subsection shall apply
notwithstanding subchapter I of this chapter.
(July 14, 1955, ch. 360, title II, 246, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2520.)
/1/ So in original. Probably should be ''light-duty''.
/2/ So in original. Probably should be ''clean-fuel''.
42 USC -- 7587. Vehicle conversions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Conversion of existing and new conventional vehicles to
clean-fuel vehicles
The requirements of section 7586 of this title may be met through the
conversion of existing or new gasoline or diesel-powered vehicles to
clean-fuel vehicles which comply with the applicable requirements of
that section. For purposes of such provisions the conversion of a
vehicle to clean fuel /1/ vehicle shall be treated as the purchase of a
clean fuel /1/ vehicle. Nothing in this part shall be construed to
provide that any covered fleet operator subject to fleet vehicle
purchase requirements under section 7586 of this title shall be required
to convert existing or new gasoline or diesel-powered vehicles to
clean-fuel vehicles or to purchase converted vehicles.
(b) Regulations
The Administrator shall, within 24 months after November 15, 1990,
consistent with the requirements of this subchapter applicable to new
vehicles, promulgate regulations governing conversions of conventional
vehicles to clean-fuel vehicles. Such regulations shall establish
criteria for such conversions which will ensure that a converted vehicle
will comply with the standards applicable under this part to clean-fuel
vehicles. Such regulations shall provide for the application to such
conversions of the same provisions of this subchapter (including
provisions relating to administration enforcement) as are applicable to
standards under section /2/ 7582, 7583, 7584, and 7585 of this title,
except that in the case of conversions the Administrator may modify the
applicable regulations implementing such provisions as the Administrator
deems necessary to implement this part.
(c) Enforcement
Any person who converts conventional vehicles to clean fuel /1/
vehicles pursuant to subsection (b) of this section, shall be considered
a manufacturer for purposes of sections 7525 and 7541 of this title and
related enforcement provisions. Nothing in the preceding sentence shall
require a person who performs such conversions to warrant any part or
operation of a vehicle other than as required under this part. Nothing
in this paragraph shall limit the applicability of any other warranty to
unrelated parts or operations.
(d) Tampering
The conversion from a vehicle capable of operating on gasoline or
diesel fuel only to a clean-fuel vehicle shall not be considered a
violation of section 7522(a)(3) of this title if such conversion
complies with the regulations promulgated under subsection (b) of this
section.
(e) Safety
The Secretary of Transportation shall, if necessary, promulgate rules
under applicable motor vehicle laws regarding the safety of vehicles
converted from existing and new vehicles to clean-fuel vehicles.
(July 14, 1955, ch. 360, title II, 247, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2523.)
/1/ So in original. Probably should be ''clean-fuel''.
/2/ So in original. Probably should be ''sections''.
42 USC -- 7588. Federal agency fleets
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Additional provisions applicable
The provisions of this section shall apply, in addition to the other
provisions of this part, in the case of covered fleet vehicles owned or
operated by an agency, department, or instrumentality of the United
States, except as otherwise provided in subsection (e) of this section.
(b) Cost of vehicles to Federal agency
Notwithstanding the provisions of section 491 of title 40, the
Administrator of General Services shall not include the incremental
costs of clean-fuel vehicles in the amount to be reimbursed by Federal
agencies if the Administrator of General Services determines that
appropriations provided pursuant to this paragraph are sufficient to
provide for the incremental cost of such vehicles over the cost of
comparable conventional vehicles.
(c) Limitations on appropriations
Funds appropriated pursuant to the authorization under this paragraph
shall be applicable only --
(1) to the portion of the cost of acquisition, maintenance and
operation of vehicles acquired under this subparagraph which exceeds the
cost of acquisition, maintenance and operation of comparable
conventional vehicles;
(2) to the portion of the costs of fuel storage and dispensing
equipment attributable to such vehicles which exceeds the costs for such
purposes required for conventional vehicles; and
(3) to the portion of the costs of acquisition of clean-fuel vehicles
which represents a reduction in revenue from the disposal of such
vehicles as compared to revenue resulting from the disposal of
comparable conventional vehicles.
(d) Vehicle costs
The incremental cost of vehicles acquired under this part over the
cost of comparable conventional vehicles shall not be applied to any
calculation with respect to a limitation under law on the maximum cost
of individual vehicles which may be required by the United States.
(e) Exemptions
The requirements of this part shall not apply to vehicles with
respect to which the Secretary of Defense has certified to the
Administrator that an exemption is needed based on national security
consideration.
(f) Acquisition requirement
Federal agencies, to the extent practicable, shall obtain clean-fuel
vehicles from original equipment manufacturers.
(g) Authorization of appropriations
There are authorized to be appropriated such sums as may be required
to carry out the provisions of this section: Provided, That such sums
as are appropriated for the Administrator of General Services pursuant
to the authorization under this section shall be added to the General
Supply Fund established in section 756 of title 40.
(July 14, 1955, ch. 360, title II, 248, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2524.)
42 USC -- 7589. California pilot test program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment
The Administrator shall establish a pilot program in the State of
California to demonstrate the effectiveness of clean-fuel vehicles in
controlling air pollution in ozone nonattainment areas.
(b) Applicability
The provisions of this section shall only apply to light-duty trucks
and light-duty vehicles, and such provisions shall apply only in the
State of California, except as provided in subsection (f) of this
section.
(c) Program requirements
Not later than 24 months after November 15, 1990, the Administrator
shall promulgate regulations establishing requirements under this
section applicable in the State of California. The regulations shall
provide the following:
(1) Clean-fuel vehicles
Clean-fuel vehicles shall be produced, sold, and distributed (in
accordance with normal business practices and applicable franchise
agreements) to ultimate purchasers in California (including owners of
covered fleets referred to in section 7586 of this title) in numbers
that meet or exceed the following schedule:
(2) Clean alternative fuels
(A) Within 2 years after November 15, 1990, the State of California
shall submit a revision of the applicable implementation plan under part
D of subchapter I of this chapter and section 7410 of this title
containing a clean fuel plan that requires that clean alternative fuels
on which the clean-fuel vehicles required under this paragraph can
operate shall be produced and distributed by fuel suppliers and made
available in California. At a minimum, sufficient clean alternative
fuels shall be produced, distributed and made available to assure that
all clean-fuel vehicles required under this section can operate, to the
maximum extent practicable, exclusively on such fuels in California.
The State shall require that clean alternative fuels be made available
and offered for sale at an adequate number of locations with sufficient
geographic distribution to ensure convenient refueling with clean
alternative fuels, considering the number of, and type of, such vehicles
sold and the geographic distribution of such vehicles within the State.
The State shall determine the clean alternative fuels to be produced,
distributed, and made available based on motor vehicle manufacturers'
projections of future sales of such vehicles and consultations with the
affected local governments and fuel suppliers.
(B) The State may by regulation grant persons subject to the
requirements prescribed under this paragraph an appropriate amount of
credits for exceeding such requirements, and any person granted credits
may transfer some or all of the credits for use by one or more persons
in demonstrating compliance with such requirements. The State may make
the credits available for use after consideration of enforceability,
environmental, and economic factors and upon such terms and conditions
as the State finds appropriate.
(C) The State may also by regulation establish specifications for any
clean alternative fuel produced and made available under this paragraph
as the State finds necessary to reduce or eliminate an unreasonable risk
to public health, welfare, or safety associated with its use or to
ensure acceptable vehicle maintenance and performance characteristics.
(D) If a retail gasoline dispensing facility would have to remove or
replace one or more motor vehicle fuel underground storage tanks and
accompanying piping in order to comply with the provisions of this
section, and it had removed and replaced such tank or tanks and
accompanying piping in order to comply with subtitle I of the Solid
Waste Disposal Act (42 U.S.C. 6991 et seq.) prior to November 15, 1990,
it shall not be required to comply with this subsection until a period
of 7 years has passed from the date of the removal and replacement of
such tank or tanks.
(E) Nothing in this section authorizes any State other than
California to adopt provisions regarding clean alternative fuels.
(F) If the State of California fails to adopt a clean fuel program
that meets the requirements of this paragraph, the Administrator shall,
within 4 years after November 15, 1990, establish a clean fuel program
for the State of California under this paragraph and section 7410(c) of
this title that meets the requirements of this paragraph.
(d) Credits for motor vehicle manufacturers
(1) The Administrator may (by regulation) grant a motor vehicle
manufacturer an appropriate amount of credits toward fulfillment of such
manufacturer's share of the requirements of subsection (c)(1) of this
section for any of the following (or any combination thereof):
(A) The sale of more clean-fuel vehicles than required under
subsection (c)(1) of this section.
(B) The sale of clean fuel /1/ vehicles which meet standards
established by the Administrator as provided in paragraph (3) which are
more stringent than the clean-fuel vehicle standards otherwise
applicable to such clean-fuel vehicle. A manufacturer granted credits
under this paragraph may transfer some or all of the credits for use by
one or more other manufacturers in demonstrating compliance with the
requirements prescribed under this paragraph. The Administrator may
make the credits available for use after consideration of
enforceability, environmental, and economic factors and upon such terms
and conditions as he finds appropriate. The Administrator shall grant
credits in accordance with this paragraph, notwithstanding any
requirements of State law or any credits granted with respect to the
same vehicles under any State law, rule, or regulation.
(2) Regulations and administration. -- The Administrator shall
administer the credit program established under this subsection. Within
12 months after November 15, 1990, the Administrator shall promulgate
regulations for such credit program.
(3) Standards for issuing credits for cleaner vehicles. -- The more
stringent standards and other requirements (including requirements
relating to the weighting of credits) established by the Administrator
for purposes of the credit program under 7585(e) /2/ of this title
(relating to credits for clean fuel /1/ vehicles in the fleets program)
shall also apply for purposes of the credit program under this
paragraph.
(e) Program evaluation
(1) Not later than June 30, 1994 and again in connection with the
report under paragraph (2), the Administrator shall provide a report to
the Congress on the status of the California Air Resources Board
Low-Emissions Vehicles and Clean Fuels Program. Such report shall
examine the capability, from a technological standpoint, of motor
vehicle manufacturers and motor vehicle fuel suppliers to comply with
the requirements of such program and with the requirements of the
California Pilot Program under this section.
(2) Not later than June 30, 1998, the Administrator shall complete
and submit a report to Congress on the effectiveness of the California
pilot program under this section. The report shall evaluate the level
of emission reductions achieved under the program, the costs of the
program, the advantages and disadvantages of extending the program to
other nonattainment areas, and desirability of continuing or expanding
the program in California.
(3) The program under this section cannot be extended or terminated
by the Administrator except by Act of Congress enacted after November
15, 1990. Section 7507 of this title does not apply to the program
under this section.
(f) Voluntary opt-in for other States
(1) EPA regulations
Not later than 2 years after November 15, 1990, the Administrator
shall promulgate regulations establishing a voluntary opt-in program
under this subsection pursuant to which --
(A) clean-fuel vehicles which are required to be produced, sold, and
distributed in the State of California under this section, and
(B) clean alternative fuels required to be produced and distributed
under this section by fuel suppliers and made available in California
/3/
may also be sold and used in other States which submit plan revisions
under paragraph (2).
(2) Plan revisions
Any State in which there is located all or part of an ozone
nonattainment area classified under subpart D of subchapter I of this
chapter as Serious, Severe, or Extreme may submit a revision of the
applicable implementation plan under part D of subchapter I of this
chapter and section 7410 of this title to provide incentives for the
sale or use in such an area or State of clean-fuel vehicles which are
required to be produced, sold, and distributed in the State of
California, and for the use in such an area or State of clean
alternative fuels required to be produced and distributed by fuel
suppliers and made available in California. Such plan provisions shall
not take effect until 1 year after the State has provided notice of such
provisions to motor vehicle manufacturers and to fuel suppliers.
(3) Incentives
The incentives referred to in paragraph (2) may include any or all of
the following:
(A) A State registration fee on new motor vehicles registered in the
State which are not clean-fuel vehicles in the amount of at least 1
percent of the cost of the vehicle. The proceeds of such fee shall be
used to provide financial incentives to purchasers of clean-fuel
vehicles and to vehicle dealers who sell high volumes or high
percentages of clean-fuel vehicles and to defray the administrative
costs of the incentive program.
(B) Provisions to exempt clean-fuel vehicles from high occupancy
vehicle or trip reduction requirements.
(C) Provisions to provide preference in the use of existing parking
spaces for clean-fuel vehicles.
The incentives under this paragraph shall not apply in the case of
covered fleet vehicles.
(4) No sales or production mandate
The regulations and plan revisions under paragraphs (1) and (2) shall
not include any production or sales mandate for clean-fuel vehicles or
clean alternative fuels. Such regulations and plan revisions shall also
provide that vehicle manufacturers and fuel suppliers may not be subject
to penalties or sanctions for failing to produce or sell clean-fuel
vehicles or clean alternative fuels.
(July 14, 1955, ch. 360, title II, 249, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2525.)
The Solid Waste Disposal Act, referred to in subsec. (c)(2)(D), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, 2, Oct. 21, 1976, 90 Stat. 2795.
Subtitle I of the Act is classified generally to subchapter IX ( 6991 et
seq.) of chapter 82 of this title. For complete classification of this
Act to the Code, see Short Title note set out under section 6901 of this
title and Tables.
November 15, 1990, referred to in subsec. (e)(3), was in the
original ''the date of the Clean Air Act Amendments of 1990'', which was
translated as meaning the date of enactment of Pub. L. 101-549, which
enacted this section, to reflect the probable intent of Congress.
/1/ So in original. Probably should be ''clean-fuel''.
/2/ So in original. Probably should be ''section 7586(f)''.
/3/ So in original. Probably should be followed by a comma.
42 USC -- 7590. General provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State refueling facilities
If any State adopts enforceable provisions in an implementation plan
applicable to a nonattainment area which provides that existing State
refueling facilities will be made available to the public for the
purchase of clean alternative fuels or that State-operated refueling
facilities for such fuels will be constructed and operated by the State
and made available to the public at reasonable times, taking into
consideration safety, costs, and other relevant factors, in approving
such plan under section 7410 of this title and part D, /1/ the
Administrator may credit a State with the emission reductions for
purposes of part D /1/ attributable to such actions.
(b) No production mandate
The Administrator shall have no authority under this part to mandate
the production of clean-fuel vehicles except as provided in the
California pilot test program or to specify as applicable the models,
lines, or types of, or marketing or price practices, policies, or
strategies for, vehicles subject to this part. Nothing in this part
shall be construed to give the Administrator authority to mandate
marketing or pricing practices, policies, or strategies for fuels.
(c) Tank and fuel system safety
The Secretary of Transportation shall, in accordance with the
National Motor Vehicle Traffic Safety Act of 1966 (15 U.S.C. 1381 et
seq.), promulgate applicable regulations regarding the safety and use of
fuel storage cylinders and fuel systems, including appropriate testing
and retesting, in conversions of motor vehicles.
(d) Consultation with Department of Energy and Department of
Transportation
The Administrator shall coordinate with the Secretaries of the
Department of Energy and the Department of Transportation in carrying
out the Administrator's duties under this part.
(July 14, 1955, ch. 360, title II, 250, as added Nov. 15, 1990, Pub.
L. 101-549, title II, 229(a), 104 Stat. 2528.)
The National Motor Vehicle Traffic Safety Act of 1966, referred to in
subsec. (c), probably means the National Motor Vehicle Traffic Safety
Act of 1966, Pub. L. 89-563, Sept. 9, 1966, 80 Stat. 718, as amended,
which is classified generally to chapter 38 ( 1381 et seq.) of Title 15,
Commerce and Trade. For complete classification of this Act to the
Code, see Short Title note set out under section 1381 of Title 15 and
Tables.
/1/ So in original. Probably should be ''part D of subchapter I of
this chapter''.
42 USC -- SUBCHAPTER III -- GENERAL PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7601. Administration
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations; delegation of powers and duties; regional officers
and employees
(1) The Administrator is authorized to prescribe such regulations as
are necessary to carry out his functions under this chapter. The
Administrator may delegate to any officer or employee of the
Environmental Protection Agency such of his powers and duties under this
chapter, except the making of regulations subject to section 7607(d) of
this title, as he may deem necessary or expedient.
(2) Not later than one year after August 7, 1977, the Administrator
shall promulgate regulations establishing general applicable procedures
and policies for regional officers and employees (including the Regional
Administrator) to follow in carrying out a delegation under paragraph
(1), if any. Such regulations shall be designed --
(A) to assure fairness and uniformity in the criteria, procedures,
and policies applied by the various regions in implementing and
enforcing the chapter;
(B) to assure at least an adequate quality audit of each State's
performance and adherence to the requirements of this chapter in
implementing and enforcing the chapter, particularly in the review of
new sources and in enforcement of the chapter; and
(C) to provide a mechanism for identifying and standardizing
inconsistent or varying criteria, procedures, and policies being
employed by such officers and employees in implementing and enforcing
the chapter.
(b) Detail of Environmental Protection Agency personnel to air
pollution control agencies
Upon the request of an air pollution control agency, personnel of the
Environmental Protection Agency may be detailed to such agency for the
purpose of carrying out the provisions of this chapter.
(c) Payments under grants; installments; advances or reimbursements
Payments under grants made under this chapter may be made in
installments, and in advance or by way of reimbursement, as may be
determined by the Administrator.
(d) Tribal authority
(1) Subject to the provisions of paragraph (2), the Administrator --
(A) is authorized to treat Indian tribes as States under this
chapter, except for purposes of the requirement that makes available for
application by each State no less than one-half of 1 percent of annual
appropriations under section 7405 of this title; and
(B) may provide any such Indian tribe grant and contract assistance
to carry out functions provided by this chapter.
(2) The Administrator shall promulgate regulations within 18 months
after November 15, 1990, specifying those provisions of this chapter for
which it is appropriate to treat Indian tribes as States. Such
treatment shall be authorized only if --
(A) the Indian tribe has a governing body carrying out substantial
governmental duties and powers;
(B) the functions to be exercised by the Indian tribe pertain to the
management and protection of air resources within the exterior
boundaries of the reservation or other areas within the tribe's
jurisdiction; and
(C) the Indian tribe is reasonably expected to be capable, in the
judgment of the Administrator, of carrying out the functions to be
exercised in a manner consistent with the terms and purposes of this
chapter and all applicable regulations.
(3) The Administrator may promulgate regulations which establish the
elements of tribal implementation plans and procedures for approval or
disapproval of tribal implementation plans and portions thereof.
(4) In any case in which the Administrator determines that the
treatment of Indian tribes as identical to States is inappropriate or
administratively infeasible, the Administrator may provide, by
regulation, other means by which the Administrator will directly
administer such provisions so as to achieve the appropriate purpose.
(5) Until such time as the Administrator promulgates regulations
pursuant to this subsection, the Administrator may continue to provide
financial assistance to eligible Indian tribes under section 7405 of
this title.
(July 14, 1955, ch. 360, title III, 301, formerly 8, as added Dec.
17, 1963, Pub. L. 88-206, 1, 77 Stat. 400, renumbered Oct. 20, 1965,
Pub. L. 89-272, title I, 101(4), 79 Stat. 992, and amended Nov. 21,
1967, Pub. L. 90-148, 2, 81 Stat. 504; Dec. 31, 1970, Pub. L. 91-604,
3(b)(2), 15(c)(2), 84 Stat. 1677, 1713; Aug. 7, 1977, Pub. L. 95-95,
title III, 305(e), 91 Stat. 776; Nov. 15, 1990, Pub. L. 101-549,
title I, 107(d), 108(i), 104 Stat. 2464, 2467.)
Section was formerly classified to section 1857g of this title.
1990 -- Subsec. (a)(1). Pub. L. 101-549, 108(i), inserted ''subject
to section 7607(d) of this title'' after ''regulations''.
Subsec. (d). Pub. L. 101-549, 107(d), added subsec. (d).
1977 -- Subsec. (a). Pub. L. 95-95 designated existing provisions as
par. (1) and added par. (2).
1970 -- Subsec. (a). Pub. L. 91-604, 15(c)(2), substituted
''Administrator'' for ''Secretary'' and ''Environmental Protection
Agency'' for ''Department of Health, Education, and Welfare''.
Subsec. (b). Pub. L. 91-604, 3(b)(2), substituted ''Environmental
Protection Agency'' for ''Public Health Service'' and struck out
provisions covering the payment of salaries and allowances.
Subsec. (c). Pub. L. 91-604, 15(c)(2), substituted ''Administrator''
for ''Secretary''.
1967 -- Pub. L. 90-148 reenacted section without change.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
Prohibited
Title X of Pub. L. 101-549 provided that:
''SEC. 1001. DISADVANTAGED BUSINESS CONCERNS.
''(a) In General. -- In providing for any research relating to the
requirements of the amendments made by the Clean Air Act Amendments of
1990 (Pub. L. 101-549, see Tables for classification) which uses funds
of the Environmental Protection Agency, the Administrator of the
Environmental Protection Agency shall, to the extent practicable,
require that not less than 10 percent of total Federal funding for such
research will be made available to disadvantaged business concerns.
''(b) Definition. --
''(1)(A) For purposes of subsection (a), the term 'disadvantaged
business concern' means a concern --
''(i) which is at least 51 percent owned by one or more socially and
economically disadvantaged individuals or, in the case of a publicly
traded company, at least 51 percent of the stock of which is owned by
one or more socially and economically disadvantaged individuals; and
''(ii) the management and daily business operations of which are
controlled by such individuals.
''(B)(i) A for-profit business concern is presumed to be a
disadvantaged business concern for purposes of subsection (a) if it is
at least 51 percent owned by, or in the case of a concern which is a
publicly traded company at least 51 percent of the stock of the company
is owned by, one or more individuals who are members of the following
groups:
''(I) Black Americans.
''(II) Hispanic Americans.
''(III) Native Americans.
''(IV) Asian Americans.
''(V) Women.
''(VI) Disabled Americans.
''(ii) The presumption established by clause (i) may be rebutted with
respect to a particular business concern if it is reasonably established
that the individual or individuals referred to in that clause with
respect to that business concern are not experiencing impediments to
establishing or developing such concern as a result of the individual's
identification as a member of a group specified in that clause.
''(C) The following institutions are presumed to be disadvantaged
business concerns for purposes of subsection (a):
''(i) Historically black colleges and universities, and colleges and
universities having a student body in which 40 percent of the students
are Hispanic.
''(ii) Minority institutions (as that term is defined by the
Secretary of Education pursuant to the General Education Provision Act
(20 U.S.C. 1221 et seq.)).
''(iii) Private and voluntary organizations controlled by individuals
who are socially and economically disadvantaged.
''(D) A joint venture may be considered to be a disadvantaged
business concern under subsection (a), notwithstanding the size of such
joint venture, if --
''(i) a party to the joint venture is a disadvantaged business
concern; and
''(ii) that party owns at least 51 percent of the joint venture.
A person who is not an economically disadvantaged individual or a
disadvantaged business concern, as a party to a joint venture, may not
be a party to more than 2 awarded contracts in a fiscal year solely by
reason of this subparagraph.
''(E) Nothing in this paragraph shall prohibit any member of a racial
or ethnic group that is not listed in subparagraph (B)(i) from
establishing that they have been impeded in establishing or developing a
business concern as a result of racial or ethnic discrimination.
''Sec. 1002. Use of Quotas Prohibited. -- Nothing in this title shall
permit or require the use of quotas or a requirement that has the effect
of a quota in determining eligibility under section 1001.''
42 USC -- 7602. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
When used in this chapter --
(a) The term ''Administrator'' means the Administrator of the
Environmental Protection Agency.
(b) The term ''air pollution control agency'' means any of the
following:
(1) A single State agency designated by the Governor of that State as
the official State air pollution control agency for purposes of this
chapter.
(2) An agency established by two or more States and having
substantial powers or duties pertaining to the prevention and control of
air pollution.
(3) A city, county, or other local government health authority, or,
in the case of any city, county, or other local government in which
there is an agency other than the health authority charged with
responsibility for enforcing ordinances or laws relating to the
prevention and control of air pollution, such other agency.
(4) An agency of two or more municipalities located in the same State
or in different States and having substantial powers or duties
pertaining to the prevention and control of air pollution.
(5) An agency of an Indian tribe.
(c) The term ''interstate air pollution control agency'' means --
(1) an air pollution control agency established by two or more
States, or
(2) an air pollution control agency of two or more municipalities
located in different States.
(d) The term ''State'' means a State, the District of Columbia, the
Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American
Samoa and includes the Commonwealth of the Northern Mariana Islands.
(e) The term ''person'' includes an individual, corporation,
partnership, association, State, municipality, political subdivision of
a State, and any agency, department, or instrumentality of the United
States and any officer, agent, or employee thereof.
(f) The term ''municipality'' means a city, town, borough, county,
parish, district, or other public body created by or pursuant to State
law.
(g) The term ''air pollutant'' means any air pollution agent or
combination of such agents, including any physical, chemical,
biological, radioactive (including source material, special nuclear
material, and byproduct material) substance or matter which is emitted
into or otherwise enters the ambient air. Such term includes any
precursors to the formation of any air pollutant, to the extent the
Administrator has identified such precursor or precursors for the
particular purpose for which the term ''air pollutant'' is used.
(h) All language referring to effects on welfare includes, but is not
limited to, effects on soils, water, crops, vegetation, manmade
materials, animals, wildlife, weather, visibility, and climate, damage
to and deterioration of property, and hazards to transportation, as well
as effects on economic values and on personal comfort and well-being,
whether caused by transformation, conversion, or combination with other
air pollutants.
(i) The term ''Federal land manager'' means, with respect to any
lands in the United States, the Secretary of the department with
authority over such lands.
(j) Except as otherwise expressly provided, the terms ''major
stationary source'' and ''major emitting facility'' mean any stationary
facility or source of air pollutants which directly emits, or has the
potential to emit, one hundred tons per year or more of any air
pollutant (including any major emitting facility or source of fugitive
emissions of any such pollutant, as determined by rule by the
Administrator).
(k) The terms ''emission limitation'' and ''emission standard'' mean
a requirement established by the State or the Administrator which limits
the quantity, rate, or concentration of emissions of air pollutants on a
continuous basis, including any requirement relating to the operation or
maintenance of a source to assure continuous emission reduction, and any
design, equipment, work practice or operational standard promulgated
under this chapter.. /1/
(l) The term ''standard of performance'' means a requirement of
continuous emission reduction, including any requirement relating to the
operation or maintenance of a source to assure continuous emission
reduction.
(m) The term ''means of emission limitation'' means a system of
continuous emission reduction (including the use of specific technology
or fuels with specified pollution characteristics).
(n) The term ''primary standard attainment date'' means the date
specified in the applicable implementation plan for the attainment of a
national primary ambient air quality standard for any air pollutant.
(o) The term ''delayed compliance order'' means an order issued by
the State or by the Administrator to an existing stationary source,
postponing the date required under an applicable implementation plan for
compliance by such source with any requirement of such plan.
(p) The term ''schedule and timetable of compliance'' means a
schedule of required measures including an enforceable sequence of
actions or operations leading to compliance with an emission limitation,
other limitation, prohibition, or standard.
(q) For purposes of this chapter, the term ''applicable
implementation plan'' means the portion (or portions) of the
implementation plan, or most recent revision thereof, which has been
approved under section 7410 of this title, or promulgated under section
7410(c) of this title, or promulgated or approved pursuant to
regulations promulgated under section 7601(d) of this title and which
implements the relevant requirements of this chapter.
(r) Indian Tribe. -- The term ''Indian tribe'' means any Indian
tribe, band, nation, or other organized group or community, including
any Alaska Native village, which is Federally recognized as eligible for
the special programs and services provided by the United States to
Indians because of their status as Indians.
(s) VOC. -- The term ''VOC'' means volatile organic compound, as
defined by the Administrator.
(t) PM-10. -- The term ''PM-10'' means particulate matter with an
aerodynamic diameter less than or equal to a nominal ten micrometers, as
measured by such method as the Administrator may determine.
(u) NAAQS and CTG. -- The term ''NAAQS'' means national ambient air
quality standard. The term ''CTG'' means a Control Technique Guideline
published by the Administrator under section 7408 of this title.
(v) NOx. -- The term ''NOx'' means oxides of nitrogen.
(w) CO. -- The term ''CO'' means carbon monoxide.
(x) Small Source. -- The term ''small source'' means a source that
emits less than 100 tons of regulated pollutants per year, or any class
of persons that the Administrator determines, through regulation,
generally lack technical ability or knowledge regarding control of air
pollution.
(y) Federal Implementation Plan. -- The term ''Federal implementation
plan'' means a plan (or portion thereof) promulgated by the
Administrator to fill all or a portion of a gap or otherwise correct all
or a portion of an inadequacy in a State implementation plan, and which
includes enforceable emission limitations or other control measures,
means or techniques (including economic incentives, such as marketable
permits or auctions of emissions allowances), and provides for
attainment of the relevant national ambient air quality standard.
(z) Stationary Source. -- The term ''stationary source'' means
generally any source of an air pollutant except those emissions
resulting directly from an internal combustion engine for transportation
purposes or from a nonroad engine or nonroad vehicle as defined in
section 7550 of this title.
(July 14, 1955, ch. 360, title III, 302, formerly 9, as added Dec.
17, 1963, Pub. L. 88-206, 1, 77 Stat. 400, renumbered Oct. 20, 1965,
Pub. L. 89-272, title I, 101(4), 79 Stat. 992, and amended Nov. 21,
1967, Pub. L. 90-148, 2, 81 Stat. 504; Dec. 31, 1970, Pub. L. 91-604,
15(a)(1), (c)(1), 84 Stat. 1710, 1713; Aug. 7, 1977, Pub. L. 95-95,
title II, 218(c), title III, 301, 91 Stat. 761, 769; Nov. 16, 1977,
Pub. L. 95-190, 14(a)(76), 91 Stat. 1404; Nov. 15, 1990, Pub. L.
101-549, title I, 101(d)(4), 107(a), (b), 108(j), 109(b), title III,
302(e), title VII, 709, 104 Stat. 2409, 2464, 2468, 2470, 2574, 2684.)
Section was formerly classified to section 1857h of this title.
Provisions similar to those comprising subsecs. (b) and (d) of this
section were contained in a prior section 1857e, act July 14, 1955, ch.
360, 6, 69 Stat. 323, prior to the general amendment of this chapter
by Pub. L. 88-206.
1990 -- Subsec. (b)(1) to (3). Pub. L. 101-549, 107(a)(1), (2),
struck out ''or'' at end of par. (3) and substituted periods for
semicolons at end of pars. (1) to (3).
Subsec. (b)(5). Pub. L. 101-549, 107(a)(3), added par. (5).
Subsec. (g). Pub. L. 101-549, 108(j)(2), inserted at end ''Such term
includes any precursors to the formation of any air pollutant, to the
extent the Administrator has identified such precursor or precursors for
the particular purpose for which the term 'air pollutant' is used.''
Subsec. (h). Pub. L. 101-549, 109(b), inserted before period at end
'', whether caused by transformation, conversion, or combination with
other air pollutants''.
Subsec. (k). Pub. L. 101-549, 303(e), inserted before period at end
'', and any design, equipment, work practice or operational standard
promulgated under this chapter.''
Subsec. (q). Pub. L. 101-549, 101(d)(4), added subsec. (q).
Subsec. (r). Pub. L. 101-549, 107(b), added subsec. (r).
Subsecs. (s) to (y). Pub. L. 101-549, 108(j)(1), added subsecs.
(s) to (y).
Subsec. (z). Pub. L. 101-549, 709, added subsec. (z).
1977 -- Subsec. (d). Pub. L. 95-95, 218(c), inserted ''and includes
the Commonwealth of the Northern Mariana Islands'' after ''American
Samoa''.
Subsec. (e). Pub. L. 95-190 substituted ''individual, corporation''
for ''individual corporation''.
Pub. L. 95-95, 301(b), expanded definition of ''person'' to include
agencies, departments, and instrumentalities of the United States and
officers, agents, and employees thereof.
Subsec. (g). Pub. L. 95-95, 301(c), expanded definition of ''air
pollutant'' so as, expressly, to include physical, chemical, biological,
and radioactive substances or matter emitted into or otherwise entering
the ambient air.
Subsecs. (i) to (p). Pub. L. 95-95, 301(a), added subsecs. (i) to
(p).
1970 -- Subsec. (a). Pub. L. 91-604, 15(c)(1), substituted
definition of ''Administrator'' as meaning Administrator of the
Environmental Protection Agency for definition of ''Secretary'' as
meaning Secretary of Health, Education, and Welfare.
Subsecs. (g), (h). Pub. L. 91-604, 15(a)(1), added subsec. (g)
defining ''air pollutant'', redesignated former subsec. (g) as (h) and
substituted references to effects on soil, water, crops, vegetation,
manmade materials, animals, wildlife, weather, visibility, and climate
for references to injury to agricultural crops and livestock, and
inserted references to effects on economic values and on personal
comfort and well being.
1967 -- Pub. L. 90-148 reenacted section without change.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
section 169.
/1/ So in original.
42 USC -- 7603. Emergency powers
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Notwithstanding any other provision of this chapter, the
Administrator, upon receipt of evidence that a pollution source or
combination of sources (including moving sources) is presenting an
imminent and substantial endangerment to public health or welfare, or
the environment, may bring suit on behalf of the United States in the
appropriate United States district court to immediately restrain any
person causing or contributing to the alleged pollution to stop the
emission of air pollutants causing or contributing to such pollution or
to take such other action as may be necessary. If it is not practicable
to assure prompt protection of public health or welfare or the
environment by commencement of such a civil action, the Administrator
may issue such orders as may be necessary to protect public health or
welfare or the environment. Prior to taking any action under this
section, the Administrator shall consult with appropriate State and
local authorities and attempt to confirm the accuracy of the information
on which the action proposed to be taken is based. Any order issued by
the Administrator under this section shall be effective upon issuance
and shall remain in effect for a period of not more than 60 days, unless
the Administrator brings an action pursuant to the first sentence of
this section before the expiration of that period. Whenever the
Administrator brings such an action within the 60-day period, such order
shall remain in effect for an additional 14 days or for such longer
period as may be authorized by the court in which such action is
brought.
(July 14, 1955, ch. 360, title III, 303, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1705, and amended Aug. 7, 1977, Pub.
L. 95-95, title III, 302(a), 91 Stat. 770; Nov. 15, 1990, Pub. L.
101-549, title VII, 704, 104 Stat. 2681.)
Section was formerly classified to section 1857h-1 of this title.
A prior section 303 of act July 14, 1955, was renumbered section 310
by Pub. L. 91-604, and is classified to section 7610 of this title.
1990 -- Pub. L. 101-549, 704(2)-(5), struck out subsec. (a)
designation before ''Notwithstanding any other'', struck out subsec.
(b) which related to violation of or failure or refusal to comply with
subsec. (a) orders, and substituted new provisions for provisions
following first sentence which read as follows: ''If it is not
practicable to assure prompt protection of the health of persons solely
by commencement of such a civil action, the Administrator may issue such
orders as may be necessary to protect the health of persons who are, or
may be, affected by such pollution source (or sources). Prior to taking
any action under this section, the Administrator shall consult with the
State and local authorities in order to confirm the correctness of the
information on which the action proposed to be taken is based and to
ascertain the action which such authorities are, or will be, taking.
Such order shall be effective for a period of not more than twenty-four
hours unless the Administrator brings an action under the first sentence
of this subsection before the expiration of such period. Whenever the
Administrator brings such an action within such period, such order shall
be effective for a period of forty-eight hours or such longer period as
may be authorized by the court pending litigation or thereafter.''
Pub. L. 101-549, 704(1), which directed that ''public health or
welfare, or the environment'' be substituted for ''the health of persons
and that appropriate State or local authorities have not acted to abate
such sources'', was executed by making the substitution for ''the health
of persons, and that appropriate State or local authorities have not
acted to abate such sources'' to reflect the probable intent of
Congress.
1977 -- Pub. L. 95-95 designated existing provisions as subsec.
(a), inserted provisions that, if it is not practicable to assure prompt
protection of the health of persons solely by commencement of a civil
action, the Administrator may issue such orders as may be necessary to
protect the health of persons who are, or may be, affected by such
pollution source (or sources), that, prior to taking any action under
this section, the Administrator consult with the State and local
authorities in order to confirm the correctness of the information on
which the action proposed to be taken is based and to ascertain the
action which such authorities are, or will be, taking, that the order be
effective for a period of not more than twenty-four hours unless the
Administrator brings an action under the first sentence of this
subsection before the expiration of such period, and that, whenever the
Administrator brings such an action within such period, such order be
effective for a period of forty-eight hours or such longer period as may
be authorized by the court pending litigation or thereafter, and added
subsec. (b).
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Suits, actions, and other proceedings lawfully commenced by or
against the Administrator or any other officer or employee of the United
States in his official capacity or in relation to the discharge of his
official duties under act July 14, 1955, the Clean Air Act, as in effect
immediately prior to the enactment of Pub. L. 95-95 (Aug. 7, 1977),
not to abate by reason of the taking effect of Pub. L. 95-95, see
section 406(a) of Pub. L. 95-95, set out as an Effective Date of 1977
Amendment note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
section 717z.
42 USC -- 7604. Citizen suits
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority to bring civil action; jurisdiction
Except as provided in subsection (b) of this section, any person may
commence a civil action on his own behalf --
(1) against any person (including (i) the United States, and (ii) any
other governmental instrumentality or agency to the extent permitted by
the Eleventh Amendment to the Constitution) who is alleged to be in
violation of (A) an emission standard or limitation under this chapter
or (B) an order issued by the Administrator or a State with respect to
such a standard or limitation,
(2) against the Administrator where there is alleged a failure of the
Administrator to perform any act or duty under this chapter which is not
discretionary with the Administrator, or
(3) against any person who proposes to construct or constructs any
new or modified major emitting facility without a permit required under
part C of subchapter I of this chapter (relating to significant
deterioration of air quality) or part D of subchapter I of this chapter
(relating to nonattainment) or who is alleged to be in violation of any
condition of such permit.
The district courts shall have jurisdiction, without regard to the
amount in controversy or the citizenship of the parties, to enforce such
an emission standard or limitation, or such an order, or to order the
Administrator to perform such act or duty, as the case may be, and to
apply any appropriate civil penalties (except for actions under
paragraph (2)). The district courts of the United States shall have
jurisdiction to compel (consistent with paragraph (2) of this
subsection) agency action unreasonably delayed, except that an action to
compel agency action referred to in section 7607(b) of this title which
is unreasonably delayed may only be filed in a United States District
Court within the circuit in which such action would be reviewable under
section 7607(b) of this title. In any such action for unreasonable
delay, notice to the entities referred to in subsection (b)(1)(A) of
this section shall be provided 180 days before commencing such action.
(b) Notice
No action may be commenced --
(1) under subsection (a)(1) of this section --
(A) prior to 60 days after the plaintiff has given notice of the
violation (i) to the Administrator, (ii) to the State in which the
violation occurs, and (iii) to any alleged violator of the standard,
limitation, or order, or
(B) if the Administrator or State has commenced and is diligently
prosecuting a civil action in a court of the United States or a State to
require compliance with the standard, limitation, or order, but in any
such action in a court of the United States any person may intervene as
a matter of right.
(2) under subsection (a)(2) of the section prior to 60 days after the
plaintiff has given notice of such action to the Administrator,
except that such action may be brought immediately after such
notification in the case of an action under this section respecting a
violation of section 7412(i)(3)(A) or (f)(4) of this title or an order
issued by the Administrator pursuant to section 7413(a) of this title.
Notice under this subsection shall be given in such manner as the
Administrator shall prescribe by regulation.
(c) Venue; intervention by Administrator; service of complaint;
consent judgment
(1) Any action respecting a violation by a stationary source of an
emission standard or limitation or an order respecting such standard or
limitation may be brought only in the judicial district in which such
source is located.
(2) In any action under this section, the Administrator, if not a
party, may intervene as a matter of right at any time in the proceeding.
A judgment in an action under this section to which the United States
is not a party shall not, however, have any binding effect upon the
United States.
(3) Whenever any action is brought under this section the plaintiff
shall serve a copy of the complaint on the Attorney General of the
United States and on the Administrator. No consent judgment shall be
entered in an action brought under this section in which the United
States is not a party prior to 45 days following the receipt of a copy
of the proposed consent judgment by the Attorney General and the
Administrator during which time the Government may submit its comments
on the proposed consent judgment to the court and parties or may
intervene as a matter of right.
(d) Award of costs; security
The court, in issuing any final order in any action brought pursuant
to subsection (a) of this section, may award costs of litigation
(including reasonable attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate. The court may,
if a temporary restraining order or preliminary injunction is sought,
require the filing of a bond or equivalent security in accordance with
the Federal Rules of Civil Procedure.
(e) Nonrestriction of other rights
Nothing in this section shall restrict any right which any person (or
class of persons) may have under any statute or common law to seek
enforcement of any emission standard or limitation or to seek any other
relief (including relief against the Administrator or a State agency).
Nothing in this section or in any other law of the United States shall
be construed to prohibit, exclude, or restrict any State, local, or
interstate authority from --
(1) bringing any enforcement action or obtaining any judicial remedy
or sanction in any State or local court, or
(2) bringing any administrative enforcement action or obtaining any
administrative remedy or sanction in any State or local administrative
agency, department or instrumentality,
against the United States, any department, agency, or instrumentality
thereof, or any officer, agent, or employee thereof under State or local
law respecting control and abatement of air pollution. For provisions
requiring compliance by the United States, departments, agencies,
instrumentalities, officers, agents, and employees in the same manner as
nongovernmental entities, see section 7418 of this title.
(f) ''Emission standard or limitation under this chapter'' defined
For purposes of this section, the term ''emission standard or
limitation under this chapter'' means --
(1) a schedule or timetable of compliance, emission limitation,
standard of performance or emission standard,
(2) a control or prohibition respecting a motor vehicle fuel or fuel
additive, or /1/
(3) any condition or requirement of a permit under part C of
subchapter I of this chapter (relating to significant deterioration of
air quality) or part D of subchapter I of this chapter (relating to
nonattainment),, /2/ section 7419 of this title (relating to primary
nonferrous smelter orders), any condition or requirement under an
applicable implementation plan relating to transportation control
measures, air quality maintenance plans, vehicle inspection and
maintenance programs or vapor recovery requirements, section 7545(e) and
(f) of this title (relating to fuels and fuel additives), section 7491
of this title (relating to visibility protection), any condition or
requirement under subchapter VI of this chapter (relating to ozone
protection), or any requirement under section 7411 or 7412 of this title
(without regard to whether such requirement is expressed as an emission
standard or otherwise); /3/ or
(4) any other standard, limitation, or schedule established under any
permit issued pursuant to subchapter V of this chapter or under any
applicable State implementation plan approved by the Administrator, any
permit term or condition, and any requirement to obtain a permit as a
condition of operations. /4/
which is in effect under this chapter (including a requirement
applicable by reason of section 7418 of this title) or under an
applicable implementation plan.
(g) Penalty fund
(1) Penalties received under subsection (a) of this section shall be
deposited in a special fund in the United States Treasury for licensing
and other services. Amounts in such fund are authorized to be
appropriated and shall remain available until expended, for use by the
Administrator to finance air compliance and enforcement activities. The
Administrator shall annually report to the Congress about the sums
deposited into the fund, the sources thereof, and the actual and
proposed uses thereof.
(2) Notwithstanding paragraph (1) the court in any action under this
subsection to apply civil penalties shall have discretion to order that
such civil penalties, in lieu of being deposited in the fund referred to
in paragraph (1), be used in beneficial mitigation projects which are
consistent with this chapter and enhance the public health or the
environment. The court shall obtain the view of the Administrator in
exercising such discretion and selecting any such projects. The amount
of any such payment in any such action shall not exceed $100,000.
(July 14, 1955, ch. 360, title III, 304, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1706, and amended Aug. 7, 1977, Pub.
L. 95-95, title III, 303(a)-(c), 91 Stat. 771, 772; Nov. 16, 1977,
Pub. L. 95-190, 14(a) (77), (78), 91 Stat. 1404; Nov. 15, 1990, Pub.
L. 101-549, title III, 302(f), title VII, 707(a)-(g), 104 Stat. 2574,
2682, 2683.)
Pub. L. 101-549, title VII, 707(g), Nov. 15, 1990, 104 Stat. 2683,
provided that, effective with respect to actions brought after the date
2 years after Nov. 15, 1990, subsection (a) of this section is amended
by inserting immediately before ''to be in violation'' in paragraphs (1)
and (3) ''to have violated (if there is evidence that the alleged
violation has been repeated) or''.
The Federal Rules of Civil Procedure, referred to in subsec. (d),
are set out in the Appendix to Title 28, Judiciary and Judicial
Procedure.
Section was formerly classified to section 1857h-2 of this title.
A prior section 304 of act July 14, 1955, was renumbered section 311
by Pub. L. 91-604, and is classified to section 7611 of this title.
1990 -- Subsec. (a). Pub. L. 101-549, 707(a), (f), in closing
provisions, inserted before period at end '', and to apply any
appropriate civil penalties (except for actions under paragraph (2))''
and inserted sentences at end giving courts jurisdiction to compel
agency action unreasonably delayed and requiring 180 days notice prior
to commencement of action.
Subsec. (b). Pub. L. 101-549, 302(f), substituted ''section
7412(i)(3)(A) or (f)(4)'' for ''section 7412(c)(1)(B)'' in closing
provisions.
Subsec. (c)(2). Pub. L. 101-549, 707(c), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''In such
action under this section, the Administrator, if not a party, may
intervene as a matter of right.''
Subsec. (c)(3). Pub. L. 101-549, 707(d), added subsec. (c)(3).
Subsec. (f)(3). Pub. L. 101-549, 707(e), struck out ''any condition
or requirement of section 7413(d) of this title (relating to certain
enforcement orders)'' before '', section 7419 of this title'',
substituted ''subchapter VI of this chapter'' for ''part B of subchapter
I of this chapter'', and substituted ''; or'' for period at end.
Subsec. (f)(4). Pub. L. 101-549, 707(e), which directed that par.
(4) be added at end of subsec. (f), was executed by adding par. (4)
after par. (3), to reflect the probable intent of Congress.
Subsec. (g). Pub. L. 101-549, 707(b), added subsec. (g).
1977 -- Subsec. (a)(3). Pub. L. 95-190, 14(a)(77), inserted ''or
modified'' after ''new''.
Pub. L. 95-95, 303(a), added subsec. (a)(3).
Subsec. (e). Pub. L. 95-95, 303(c), inserted provisions which
prohibited any construction of this section or any other law of the
United States which would prohibit, exclude, or restrict any State,
local, or interstate authority from bringing any enforcement action or
obtaining any judicial remedy or sanction in any State or local court
against the United States or bringing any administrative enforcement
action or obtaining any administrative remedy or sanction against the
United States in any State or local administrative agency, department,
or instrumentality under State or local law.
Subsec. (f)(3). Pub. L. 95-190, 14(a)(78), inserted '', or'' after
''(relating to ozone protection)'', substituted ''any condition or
requirement under an'' for ''requirements under an'', and struck out
''or'' before ''section 7491''.
Pub. L. 95-95, 303(b), added par. (3).
Section 707(g) of Pub. L. 101-549 provided that: ''The amendment
made by this subsection (amending this section) shall take effect with
respect to actions brought after the date 2 years after the enactment of
the Clean Air Act Amendments of 1990 (Nov. 15, 1990).''
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Suits, actions, and other proceedings lawfully commenced by or
against the Administrator or any other officer or employee of the United
States in his official capacity or in relation to the discharge of his
official duties under act July 14, 1955, the Clean Air Act, as in effect
immediately prior to the enactment of Pub. L. 95-95 (Aug. 7, 1977),
not to abate by reason of the taking effect of Pub. L. 95-95, see
section 406(a) of Pub. L. 95-95, set out as an Effective Date of 1977
Amendment note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued made, or taken by or pursuant to act July 14, 1955, the Clean Air
Act, as in effect immediately prior to the date of enactment of Pub. L.
95-95 (Aug. 7, 1977) to continue in full force and effect until modified
or rescinded in accordance with act July 14, 1955, as amended by Pub.
L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95, set out
as an Effective Date of 1977 Amendment note under section 7401 of this
title.
/1/ So in original. The word ''or'' probably should not appear.
/2/ So in original.
/3/ So in original. The semicolon probably should be a comma.
/4/ So in original. The period probably should be a comma.
42 USC -- 7605. Representation in litigation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Attorney General; attorneys appointed by Administrator
The Administrator shall request the Attorney General to appear and
represent him in any civil action instituted under this chapter to which
the Administrator is a party. Unless the Attorney General notifies the
Administrator that he will appear in such action, within a reasonable
time, attorneys appointed by the Administrator shall appear and
represent him.
(b) Memorandum of understanding regarding legal representation
In the event the Attorney General agrees to appear and represent the
Administrator in any such action, such representation shall be conducted
in accordance with, and shall include participation by, attorneys
appointed by the Administrator to the extent authorized by, the
memorandum of understanding between the Department of Justice and the
Environmental Protection Agency, dated June 13, 1977, respecting
representation of the agency by the department in civil litigation.
(July 14, 1955, ch. 360, title III, 305, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1707, and amended Aug. 7, 1977, Pub.
L. 95-95, title III, 304(a), 91 Stat. 772.)
Section was formerly classified to section 1857h-3 of this title.
A prior section 305 of act July 14, 1955, as added Nov. 21, 1967,
Pub. L. 90-148, 2, 81 Stat. 505, was renumbered section 312 by Pub.
L. 91-604, and is classified to section 7612 of this title.
Another prior section 305 of act July 14, 1955, ch. 360, title III,
formerly 12, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77 Stat.
401, was renumbered section 305 by Pub. L. 89-272, renumbered section
308 by Pub. L. 90-148, and renumbered section 315 by Pub. L. 91-604,
and is classified to section 7615 of this title.
1977 -- Pub. L. 95-95 designated existing provisions as subsec. (a)
and added subsec. (b).
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Suits, actions, and other proceedings lawfully commenced by or
against the Administrator or any other officer or employee of the United
States in his official capacity or in relation to the discharge of his
official duties under act July 14, 1955, the Clean Air Act, as in effect
immediately prior to the enactment of Pub. L. 95-95 (Aug. 7, 1977),
not to abate by reason of the taking effect of Pub. L. 95-95, see
section 406(a) of Pub. L. 95-95, set out as an Effective Date of 1977
Amendment note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
42 USC -- 7606. Federal procurement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Contracts with violators prohibited
No Federal agency may enter into any contract with any person who is
convicted of any offense under section 7413(c) of this title for the
procurement of goods, materials, and services to perform such contract
at any facility at which the violation which gave rise to such
conviction occurred if such facility is owned, leased, or supervised by
such person. The prohibition in the preceding sentence shall continue
until the Administrator certifies that the condition giving rise to such
a conviction has been corrected. For convictions arising under section
7413(c)(2) of this title, the condition giving rise to the conviction
also shall be considered to include any substantive violation of this
chapter associated with the violation of 7413(c)(2) of this title. The
Administrator may extend this prohibition to other facilities owned or
operated by the convicted person.
(b) Notification procedures
The Administrator shall establish procedures to provide all Federal
agencies with the notification necessary for the purposes of subsection
(a) of this section.
(c) Federal agency contracts
In order to implement the purposes and policy of this chapter to
protect and enhance the quality of the Nation's air, the President
shall, not more than 180 days after December 31, 1970, cause to be
issued an order (1) requiring each Federal agency authorized to enter
into contracts and each Federal agency which is empowered to extend
Federal assistance by way of grant, loan, or contract to effectuate the
purpose and policy of this chapter in such contracting or assistance
activities, and (2) setting forth procedures, sanctions, penalties, and
such other provisions, as the President determines necessary to carry
out such requirement.
(d) Exemptions; notification to Congress
The President may exempt any contract, loan, or grant from all or
part of the provisions of this section where he determines such
exemption is necessary in the paramount interest of the United States
and he shall notify the Congress of such exemption.
(e) Annual report to Congress
The President shall annually report to the Congress on measures taken
toward implementing the purpose and intent of this section, including
but not limited to the progress and problems associated with
implementation of this section.
(July 14, 1955, ch. 360, title III, 306, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1707, and amended Nov. 15, 1990, Pub.
L. 101-549, title VII, 705, 104 Stat. 2682.)
Section was formerly classified to section 1857h-4 of this title.
A prior section 306 of act July 14, 1955, ch. 360, title III, as
added Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 506, was renumbered
section 313 by Pub. L. 91-604, and is classified to section 7613 of
this title.
Another prior section 306 of act July 14, 1955, ch. 360, title III,
formerly 13, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77 Stat.
401, renumbered 306, Oct. 20, 1965, Pub. L. 89-272, title I, 101(4),
79 Stat. 992, renumbered 309, Nov. 21, 1967, Pub. L. 90-148, 2, 81
Stat. 506, renumbered 316, Dec. 31, 1970, Pub. L. 91-604, 12(a),
84 Stat. 1705, which related to appropriations, was classified to prior
section 1857l of this title and was repealed by section 306 of Pub. L.
95-95. See section 7626 of this title.
1990 -- Subsec. (a). Pub. L. 101-549 substituted ''section 7413(c)''
for ''section 7413(c)(1)'' and inserted sentences at end relating to
convictions arising under section 7413(c)(2) of this title and extension
of prohibition to other facilities owned by convicted persons.
Ex. Ord. No. 11602, June 29, 1971, 36 F.R. 12475, which related to
the administration of the Clean Air Act with respect to Federal
contracts, grants, or loans, was superseded by Ex. Ord. No. 11738,
Sept. 10, 1973, 38 F.R. 25161, set out below.
Ex. Ord. No. 11738, Sept. 10, 1973, 38 F.R. 25161, provided:
By virtue of the authority vested in me by the provisions of the
Clean Air Act, as amended (42 U.S.C. 1857 et seq.) (42 U.S.C. 7401 et
seq.), particularly section 306 of that Act as added by the Clean Air
Amendments of 1970 (Public Law 91-604) (this section), and the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), particularly
section 508 of that Act as added by the Federal Water Pollution Control
Act Amendments of 1972 (Public Law 92-500) (33 U.S.C. 1368), it is
hereby ordered as follows:
Section 1. Policy. It is the policy of the Federal Government to
improve and enhance environmental quality. In furtherance of that
policy, the program prescribed in this Order is instituted to assure
that each Federal agency empowered to enter into contracts for the
procurement of goods, materials, or services and each Federal agency
empowered to extend Federal assistance by way of grant, loan, or
contract shall undertake such procurement and assistance activities in a
manner that will result in effective enforcement of the Clean Air Act
(this chapter) (hereinafter referred to as ''the Air Act'') and the
Federal Water Pollution Control Act (hereinafter referred to as ''the
Water Act'') (33 U.S.C. 1251 et seq.).
Sec. 2. Designation of Facilities. (a) The Administrator of the
Environmental Protection Agency (hereinafter referred to as ''the
Administrator'') shall be responsible for the attainment of the purposes
and objectives of this Order.
(b) In carrying out his responsibilities under this Order, the
Administrator shall, in conformity with all applicable requirements of
law, designate facilities which have given rise to a conviction for an
offense under section 113(c)(1) of the Air Act (42 U.S.C. 7413(c)(1)) or
section 309(c) of the Water Act (33 U.S.C. 1319(c)). The Administrator
shall, from time to time, publish and circulate to all Federal agencies
lists of those facilities, together with the names and addresses of the
persons who have been convicted of such offenses. Whenever the
Administrator determines that the condition which gave rise to a
conviction has been corrected, he shall promptly remove the facility and
the name and address of the person concerned from the list.
Sec. 3. Contracts, Grants, or Loans. (a) Except as provided in
section 8 of this Order, no Federal agency shall enter into any contract
for the procurement of goods, materials, or services which is to be
performed in whole or in part in a facility then designated by the
Administrator pursuant to section 2.
(b) Except as provided in section 8 of this Order, no Federal agency
authorized to extend Federal assistance by way of grant, loan, or
contract shall extend such assistance in any case in which it is to be
used to support any activity or program involving the use of a facility
then designated by the Administrator pursuant to section 2.
Sec. 4. Procurement, Grant, and Loan Regulations. The Federal
Procurement Regulations, the Armed Services Procurement Regulations, and
to the extent necessary, any supplemental or comparable regulations
issued by any agency of the Executive Branch shall, following
consultation with the Administrator, be amended to require, as a
condition of entering into, renewing, or extending any contract for the
procurement of goods, materials, or services or extending any assistance
by way of grant, loan, or contract, inclusion of a provision requiring
compliance with the Air Act, the Water Act, and standards issued
pursuant thereto in the facilities in which the contract is to be
performed, or which are involved in the activity or program to receive
assistance.
Sec. 5. Rules and Regulations. The Administrator shall issue such
rules, regulations, standards, and guidelines as he may deem necessary
or appropriate to carry out the purposes of this Order.
Sec. 6. Cooperation and Assistance. The head of each Federal agency
shall take such steps as may be necessary to insure that all officers
and employees of this agency whose duties entail compliance or
comparable functions with respect to contracts, grants, and loans are
familiar with the provisions of this Order. In addition to any other
appropriate action, such officers and employees shall report promptly
any condition in a facility which may involve noncompliance with the Air
Act or the Water Act or any rules, regulations, standards, or guidelines
issued pursuant to this Order to the head of the agency, who shall
transmit such reports to the Administrator.
Sec. 7. Enforcement. The Administrator may recommend to the
Department of Justice or other appropriate agency that legal proceedings
be brought or other appropriate action be taken whenever he becomes
aware of a breach of any provision required, under the amendments issued
pursuant to section 4 of this Order, to be included in a contract or
other agreement.
Sec. 8. Exemptions -- Reports to Congress. (a) Upon a determination
that the paramount interest of the United States so requires --
(1) The head of a Federal agency may exempt any contract, grant, or
loan, and, following consultation with the Administrator, any class of
contracts, grants or loans from the provisions of this Order. In any
such case, the head of the Federal agency granting such exemption shall
(A) promptly notify the Administrator of such exemption and the
justification therefor; (B) review the necessity for each such
exemption annually; and (C) report to the Administrator annually all
such exemptions in effect. Exemptions granted pursuant to this section
shall be for a period not to exceed one year. Additional exemptions may
be granted for periods not to exceed one year upon the making of a new
determination by the head of the Federal agency concerned.
(2) The Administrator may, by rule or regulation, exempt any or all
Federal agencies from any or all of the provisions of this Order with
respect to any class or classes of contracts, grants, or loans, which
(A) involve less than specified dollar amounts, or (B) have a minimal
potential impact upon the environment, or (C) involve persons who are
not prime contractors or direct recipients of Federal assistance by way
of contracts, grants, or loans.
(b) Federal agencies shall reconsider any exemption granted under
subsection (a) whenever requested to do so by the Administrator.
(c) The Administrator shall annually notify the President and the
Congress of all exemptions granted, or in effect, under this Order
during the preceding year.
Sec. 9. Related Actions. The imposition of any sanction or penalty
under or pursuant to this Order shall not relieve any person of any
legal duty to comply with any provisions of the Air Act or the Water
Act.
Sec. 10. Applicability. This Order shall not apply to contracts,
grants, or loans involving the use of facilities located outside the
United States.
Sec. 11. Uniformity. Rules, regulations, standards, and guidelines
issued pursuant to this order and section 508 of the Water Act (33
U.S.C. 1368) shall, to the maximum extent feasible, be uniform with
regulations issued pursuant to this order, Executive Order No. 11602 of
June 29, 1971 (formerly set out as a note above), and section 306 of the
Air Act (this section).
Sec. 12. Order Superseded. Executive Order No. 11602 of June 29,
1971, is hereby superseded.
Richard Nixon.
42 USC -- 7607. Administrative proceedings and judicial review
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Administrative subpenas; confidentiality; witnesses
In connection with any determination under section 7410(f) of this
title, or for purposes of obtaining information under section 7521(b)(4)
/1/ or 7545(c)(3) of this title, any investigation, monitoring,
reporting requirement, entry, compliance inspection, or administrative
enforcement proceeding under the /2/ chapter (including but not limited
to section 7413, section 7414, section 7420, section 7429, section 7477,
section 7524, section 7525, section 7542, section 7603, or section 7606
of this title),, /3/ the Administrator may issue subpenas for the
attendance and testimony of witnesses and the production of relevant
papers, books, and documents, and he may administer oaths. Except for
emission data, upon a showing satisfactory to the Administrator by such
owner or operator that such papers, books, documents, or information or
particular part thereof, if made public, would divulge trade secrets or
secret processes of such owner or operator, the Administrator shall
consider such record, report, or information or particular portion
thereof confidential in accordance with the purposes of section 1905 of
title 18, except that such paper, book, document, or information may be
disclosed to other officers, employees, or authorized representatives of
the United States concerned with carrying out this chapter, to persons
carrying out the National Academy of Sciences' study and investigation
provided for in section 7521(c) of this title, or when relevant in any
proceeding under this chapter. Witnesses summoned shall be paid the
same fees and mileage that are paid witnesses in the courts of the
United States. In case of contumacy or refusal to obey a subpena served
upon any person under this subparagraph, the district court of the
United States for any district in which such person is found or resides
or transacts business, upon application by the United States and after
notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the
Administrator to appear and produce papers, books, and documents before
the Administrator, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(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 title (other
than a standard required to be prescribed under section 7521(b)(1) of
this title), any determination under section 7521(b)(5) /1/ 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,, /3/
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
(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).
(c) Additional evidence
In any judicial proceeding in which review is sought of a
determination under this chapter required to be made on the record after
notice and opportunity for hearing, if any party applies to the court
for leave to adduce additional evidence, and shows to the satisfaction
of the court that such additional evidence is material and that there
were reasonable grounds for the failure to adduce such evidence in the
proceeding before the Administrator, the court may order such additional
evidence (and evidence in rebuttal thereof) to be taken before the
Administrator, in such manner and upon such terms and conditions as to
/4/ the court may deem proper. The Administrator may modify his
findings as to the facts, or make new findings, by reason of the
additional evidence so taken and he shall file such modified or new
findings, and his recommendation, if any, for the modification or
setting aside of his original determination, with the return of such
additional evidence.
(d) Rulemaking
(1) This subsection applies to --
(A) the promulgation or revision of any national ambient air quality
standard under section 7409 of this title,
(B) the promulgation or revision of an implementation plan by the
Administrator under section 7410(c) of this title,
(C) the promulgation or revision of any standard of performance under
section 7411 of this title, or emission standard or limitation under
section 7412(d) of this title, any standard under section 7412(f) of
this title, or any regulation under section 7412(g)(1)(D) and (F) of
this title, or any regulation under section 7412(m) or (n) of this
title,
(D) the promulgation of any requirement for solid waste combustion
under section 7429 of this title,
(E) the promulgation or revision of any regulation pertaining to any
fuel or fuel additive under section 7545 of this title,
(F) the promulgation or revision of any aircraft emission standard
under section 7571 of this title,
(G) the promulgation or revision of any regulation under subchapter
IV-A of this chapter (relating to control of acid deposition),
(H) promulgation or revision of regulations pertaining to primary
nonferrous smelter orders under section 7419 of this title (but not
including the granting or denying of any such order),
(I) promulgation or revision of regulations under subchapter VI of
this chapter (relating to stratosphere and ozone protection),
(J) promulgation or revision of regulations under part C of
subchapter I of this chapter (relating to prevention of significant
deterioration of air quality and protection of visibility),
(K) promulgation or revision of regulations under section 7521 of
this title and test procedures for new motor vehicles or engines under
section 7525 of this title, and the revision of a standard under section
7521(a)(3) of this title,
(L) promulgation or revision of regulations for noncompliance
penalties under section 7420 of this title,
(M) promulgation or revision of any regulations promulgated under
section 7541 of this title (relating to warranties and compliance by
vehicles in actual use),
(N) action of the Administrator under section 7426 of this title
(relating to interstate pollution abatement),
(O) the promulgation or revision of any regulation pertaining to
consumer and commercial products under section 7511b(e) of this title,
(P) the promulgation or revision of any regulation pertaining to
field citations under section 7413(d)(3) of this title,
(Q) the promulgation or revision of any regulation pertaining to
urban buses or the clean-fuel vehicle, clean-fuel fleet, and clean fuel
programs under part C of subchapter II of this chapter,
(R) the promulgation or revision of any regulation pertaining to
nonroad engines or nonroad vehicles under section 7547 of this title,
(S) the promulgation or revision of any regulation relating to motor
vehicle compliance program fees under section 7552 of this title,
(T) the promulgation or revision of any regulation under subchapter
IV-A of this chapter (relating to acid deposition),
(U) the promulgation or revision of any regulation under section
7511b(f) of this title pertaining to marine vessels, and
(V) such other actions as the Administrator may determine.
The provisions of section 553 through 557 and section 706 of title 5
shall not, except as expressly provided in this subsection, apply to
actions to which this subsection applies. This subsection shall not
apply in the case of any rule or circumstance referred to in
subparagraphs (A) or (B) of subsection 553(b) of title 5.
(2) Not later than the date of proposal of any action to which this
subsection applies, the Administrator shall establish a rulemaking
docket for such action (hereinafter in this subsection referred to as a
''rule''). Whenever a rule applies only within a particular State, a
second (identical) docket shall be simultaneously established in the
appropriate regional office of the Environmental Protection Agency.
(3) In the case of any rule to which this subsection applies, notice
of proposed rulemaking shall be published in the Federal Register, as
provided under section 553(b) of title 5, shall be accompanied by a
statement of its basis and purpose and shall specify the period
available for public comment (hereinafter referred to as the ''comment
period''). The notice of proposed rulemaking shall also state the
docket number, the location or locations of the docket, and the times it
will be open to public inspection. The statement of basis and purpose
shall include a summary of --
(A) the factual data on which the proposed rule is based;
(B) the methodology used in obtaining the data and in analyzing the
data; and
(C) the major legal interpretations and policy considerations
underlying the proposed rule.
The statement shall also set forth or summarize and provide a
reference to any pertinent findings, recommendations, and comments by
the Scientific Review Committee established under section 7409(d) of
this title and the National Academy of Sciences, and, if the proposal
differs in any important respect from any of these recommendations, an
explanation of the reasons for such differences. All data, information,
and documents referred to in this paragraph on which the proposed rule
relies shall be included in the docket on the date of publication of the
proposed rule.
(4)(A) The rulemaking docket required under paragraph (2) shall be
open for inspection by the public at reasonable times specified in the
notice of proposed rulemaking. Any person may copy documents contained
in the docket. The Administrator shall provide copying facilities which
may be used at the expense of the person seeking copies, but the
Administrator may waive or reduce such expenses in such instances as the
public interest requires. Any person may request copies by mail if the
person pays the expenses, including personnel costs to do the copying.
(B)(i) Promptly upon receipt by the agency, all written comments and
documentary information on the proposed rule received from any person
for inclusion in the docket during the comment period shall be placed in
the docket. The transcript of public hearings, if any, on the proposed
rule shall also be included in the docket promptly upon receipt from the
person who transcribed such hearings. All documents which become
available after the proposed rule has been published and which the
Administrator determines are of central relevance to the rulemaking
shall be placed in the docket as soon as possible after their
availability.
(ii) The drafts of proposed rules submitted by the Administrator to
the Office of Management and Budget for any interagency review process
prior to proposal of any such rule, all documents accompanying such
drafts, and all written comments thereon by other agencies and all
written responses to such written comments by the Administrator shall be
placed in the docket no later than the date of proposal of the rule.
The drafts of the final rule submitted for such review process prior to
promulgation and all such written comments thereon, all documents
accompanying such drafts, and written responses thereto shall be placed
in the docket no later than the date of promulgation.
(5) In promulgating a rule to which this subsection applies (i) the
Administrator shall allow any person to submit written comments, data,
or documentary information; (ii) the Administrator shall give
interested persons an opportunity for the oral presentation of data,
views, or arguments, in addition to an opportunity to make written
submissions; (iii) a transcript shall be kept of any oral presentation;
and (iv) the Administrator shall keep the record of such proceeding
open for thirty days after completion of the proceeding to provide an
opportunity for submission of rebuttal and supplementary information.
(6)(A) The promulgated rule shall be accompanied by (i) a statement
of basis and purpose like that referred to in paragraph (3) with respect
to a proposed rule and (ii) an explanation of the reasons for any major
changes in the promulgated rule from the proposed rule.
(B) The promulgated rule shall also be accompanied by a response to
each of the significant comments, criticisms, and new data submitted in
written or oral presentations during the comment period.
(C) The promulgated rule may not be based (in part or whole) on any
information or data which has not been placed in the docket as of the
date of such promulgation.
(7)(A) The record for judicial review shall consist exclusively of
the material referred to in paragraph (3), clause (i) of paragraph
(4)(B), and subparagraphs (A) and (B) of paragraph (6).
(B) Only an objection to a rule or procedure which was raised with
reasonable specificity during the period for public comment (including
any public hearing) may be raised during judicial review. If the person
raising an objection can demonstrate to the Administrator that it was
impracticable to raise such objection within such time or if the grounds
for such objection arose after the period for public comment (but within
the time specified for judicial review) and if such objection is of
central relevance to the outcome of the rule, the Administrator shall
convene a proceeding for reconsideration of the rule and provide the
same procedural rights as would have been afforded had the information
been available at the time the rule was proposed. If the Administrator
refuses to convene such a proceeding, such person may seek review of
such refusal in the United States court of appeals for the appropriate
circuit (as provided in subsection (b) of this section). Such
reconsideration shall not postpone the effectiveness of the rule. The
effectiveness of the rule may be stayed during such reconsideration,
however, by the Administrator or the court for a period not to exceed
three months.
(8) The sole forum for challenging procedural determinations made by
the Administrator under this subsection shall be in the United States
court of appeals for the appropriate circuit (as provided in subsection
(b) of this section) at the time of the substantive review of the rule.
No interlocutory appeals shall be permitted with respect to such
procedural determinations. In reviewing alleged procedural errors, the
court may invalidate the rule only if the errors were so serious and
related to matters of such central relevance to the rule that there is a
substantial likelihood that the rule would have been significantly
changed if such errors had not been made.
(9) In the case of review of any action of the Administrator to which
this subsection applies, the court may reverse any such action found to
be --
(A) arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations,
or short of statutory right; or
(D) without observance of procedure required by law, if (i) such
failure to observe such procedure is arbitrary or capricious, (ii) the
requirement of paragraph (7)(B) has been met, and (iii) the condition of
the last sentence of paragraph (8) is met.
(10) Each statutory deadline for promulgation of rules to which this
subsection applies which requires promulgation less than six months
after date of proposal may be extended to not more than six months after
date of proposal by the Administrator upon a determination that such
extension is necessary to afford the public, and the agency, adequate
opportunity to carry out the purposes of this subsection.
(11) The requirements of this subsection shall take effect with
respect to any rule the proposal of which occurs after ninety days after
August 7, 1977.
(e) Other methods of judicial review not authorized
Nothing in this chapter shall be construed to authorize judicial
review of regulations or orders of the Administrator under this chapter,
except as provided in this section.
(f) Costs
In any judicial proceeding under this section, the court may award
costs of litigation (including reasonable attorney and expert witness
fees) whenever it determines that such award is appropriate.
(g) Stay, injunction, or similar relief in proceedings relating to
noncompliance penalties
In any action respecting the promulgation of regulations under
section 7420 of this title or the administration or enforcement of
section 7420 of this title no court shall grant any stay, injunctive, or
similar relief before final judgment by such court in such action.
(h) Public participation
It is the intent of Congress that, consistent with the policy of
subchapter II of chapter 5 of title 5, the Administrator in promulgating
any regulation under this chapter, including a regulation subject to a
deadline, shall ensure a reasonable period for public participation of
at least 30 days, except as otherwise expressly provided in section /5/
7407(d), 7502(a), 7511(a) and (b), and 7512(a) and (b) of this title.
(July 14, 1955, ch. 360, title III, 307, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1707, and amended Nov. 18, 1971, Pub.
L. 92-157, title III, 302(a), 85 Stat. 464; June 22, 1974, Pub. L.
93-319, 6(c), 88 Stat. 259; Aug. 7, 1977, Pub. L. 95-95, title III,
303(d), 305(a), (c), (f)-(h), 91 Stat. 772, 776, 777; Nov. 16, 1977,
Pub. L. 95-190, 14(a)(79), (80), 91 Stat. 1404; Nov. 15, 1990, Pub. L.
101-549, title I, 108(p), 110(5), title III, 302(g), (h), title VII,
702(c), 703, 706, 707(h), 710(b), 104 Stat. 2469, 2470, 2574,
2681-2684.)
Section 7521(b)(4) of this title, referred to in subsec. (a), was
repealed by Pub. L. 101-549, title II, 203(2), Nov. 15, 1990, 104
Stat. 2529.
Section 7521(b)(5) of this title, referred to in subsec. (b)(1), was
repealed by Pub. L. 101-549, title II, 203(3), Nov. 15, 1990, 104
Stat. 2529.
Section 1857c-10(c)(2)(A), (B), or (C) of this title (as in effect
before August 7, 1977), referred to in subsec. (b)(1), was in the
original ''section 119(c)(2)(A), (B), or (C) (as in effect before the
date of enactment of the Clean Air Act Amendments of 1977)'', meaning
section 119 of act July 14, 1955, ch. 360, title I, as added June 22,
1974, Pub. L. 93-319, 3, 88 Stat. 248, (which was classified to
section 1857c-10 of this title) as in effect prior to the enactment of
Pub. L. 95-95, Aug. 7, 1977, 91 Stat. 691, effective Aug. 7, 1977.
Section 112(b)(1) of Pub. L. 95-95 repealed section 119 of act July 14,
1955, ch. 360, title I, as added by Pub. L. 93-319, and provided that
all references to such section 119 in any subsequent enactment which
supersedes Pub. L. 93-319 shall be construed to refer to section 113(d)
of the Clean Air Act and to paragraph (5) thereof in particular which is
classified to subsec. (d)(5) of section 7413 of this title. Section
7413(d) of this title was subsequently amended generally by Pub. L.
101-549, title VII, 701, Nov. 15, 1990, 104 Stat. 2672, and, as so
amended, no longer relates to final compliance orders. Section 117(b)
of Pub. L. 95-95 added a new section 119 of act July 14, 1955, which is
classified to section 7419 of this title.
Part C of subchapter I of this chapter, referred to in subsec.
(d)(1)(J), was in the original ''subtitle C of title I'', and was
translated as reading ''part C of title I'' to reflect the probable
intent of Congress, because title I does not contain subtitles.
In subsec. (h), ''subchapter II of chapter 5 of title 5'' was
substituted for ''the Administrative Procedures Act'' on authority of
Pub. L. 89-554, 7(b), Sept. 6, 1966, 80 Stat. 631, the first section
of which enacted Title 5, Government Organization and Employees.
Section was formerly classified to section 1857h-5 of this title.
A prior section 307 of act July 14, 1955, was renumbered section 314
by Pub. L. 91-604, and is classified to section 7614 of this title.
Another prior section 307 of act July 14, 1955, ch. 360, title III,
formerly 14, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77 Stat.
401, was renumbered section 307 by Pub. L. 89-272, renumbered section
310 by Pub. L. 90-148, and renumbered section 317 by Pub. L. 91-604,
and is set out as a Short Title note under section 7401 of this title.
1990 -- Subsec. (a). Pub. L. 101-549, 703, struck out par. (1)
designation at beginning, inserted provisions authorizing issuance of
subpoenas and administration of oaths for purposes of investigations,
monitoring, reporting requirements, entries, compliance inspections, or
administrative enforcement proceedings under this chapter, and struck
out ''or section 7521(b)(5)'' after ''section 7410(f)''.
Subsec. (b)(1). Pub. L. 101-549, 706, struck out ''under section
7413(d) of this title'' before '', under section 7419 of this title''
and inserted at end: ''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.''
Pub. L. 101-549, 702(c), inserted ''or revising regulations for
enhanced monitoring and compliance certification programs under section
7414(a)(3) of this title,'' before ''or any other final action of the
Administrator''.
Pub. L. 101-549, 302(g), substituted ''section 7412'' for ''section
7412(c)''.
Subsec. (b)(2). Pub. L. 101-549, 707(h), inserted sentence at end
authorizing challenge to deferrals of performance of nondiscretionary
statutory actions.
Subsec. (d)(1)(C). Pub. L. 101-549, 110(5)(A), amended subpar. (C)
generally. Prior to amendment, subpar. (C) read as follows: ''the
promulgation or revision of any standard of performance under section
7411 of this title or emission standard under section 7412 of this
title,''.
Subsec. (d)(1)(D), (E). Pub. L. 101-549, 302(h), added subpar. (D)
and redesignated former subpar. (D) as (E). Former subpar. (E)
redesignated (F).
Subsec. (d)(1)(F). Pub. L. 101-549, 302(h), redesignated subpar.
(E) as (F). Former subpar. (F) redesignated (G).
Pub. L. 101-549, 110(5)(B), amended subpar. (F) generally. Prior
to amendment, subpar. (F) read as follows: ''promulgation or revision
of regulations pertaining to orders for coal conversion under section
7413(d)(5) of this title (but not including orders granting or denying
any such orders),''.
Subsec. (d)(1)(G), (H). Pub. L. 101-549, 302(h), redesignated
subpars. (F) and (G) as (G) and (H), respectively. Former subpar. (H)
redesignated (I).
Subsec. (d)(1)(I). Pub. L. 101-549, 710(b), which directed that
subpar. (H) be amended by substituting ''subchapter VI of this
chapter'' for ''part B of subchapter I of this chapter'', was executed
by making the substitution in subpar. (I), to reflect the probable
intent of Congress and the intervening redesignation of subpar. (H) as
(I) by Pub. L. 101-549, 302(h), see below.
Pub. L. 101-549, 302(h), redesignated subpar. (H) as (I). Former
subpar. (I) redesignated (J).
Subsec. (d)(1)(J) to (M). Pub. L. 101-549, 302(h), redesignated
subpars. (I) to (L) as (J) to (M), respectively. Former subpar. (M)
redesignated (N).
Subsec. (d)(1)(N). Pub. L. 101-549, 302(h), redesignated subpar.
(M) as (N). Former subpar. (N) redesignated (O).
Pub. L. 101-549, 110(5)(C), added subpar. (N) and redesignated
former subpar. (N) as (U).
Subsec. (d)(1)(O) to (T). Pub. L. 101-549, 302(h), redesignated
subpars. (N) to (S) as (O) to (T), respectively. Former subpar. (T)
redesignated (U).
Pub. L. 101-549, 110(5)(C), added subpars. (O) to (T).
Subsec. (d)(1)(U). Pub. L. 101-549, 302(h), redesignated subpar.
(T) as (U). Former subpar. (U) redesignated (V).
Pub. L. 101-549, 110(5)(C), redesignated former subpar. (N) as (U).
Subsec. (d)(1)(V). Pub. L. 101-549, 302(h), redesignated subpar.
(U) as (V).
Subsec. (h). Pub. L. 101-549, 108(p), added subsec. (h).
1977 -- Subsec. (b)(1). Pub. L. 95-190 in text relating to filing of
petitions for review in the United States Court of Appeals for the
District of Columbia inserted provision respecting requirements under
sections 7411 and 7412 of this title, and substituted provisions
authorizing review of any rule issued under section 7413, 7419, or 7420
of this title, for provisions authorizing review of any rule or order
issued under section 7420 of this title, relating to noncompliance
penalties, and in text relating to filing of petitions for review in the
United States Court of Appeals for the appropriate circuit inserted
provision respecting review under section 7411(j), 7412(c), 7413(d), or
7419 of this title, provision authorizing review under section
1857c-10(c)(2)(A), (B), or (C) to the period prior to Aug. 7, 1977, and
provisions authorizing review of denials or disapprovals by the
Administrator under subchapter I of this chapter.
Pub. L. 95-95, 305(c), (h), inserted rules or orders issued under
section 7420 of this title (relating to noncompliance penalties) and any
other nationally applicable regulations promulgated, or final action
taken, by the Administrator under this chapter to the enumeration of
actions of the Administrator for which a petition for review may be
filed only in the United States Court of Appeals for the District of
Columbia, added the approval or promulgation by the Administrator of
orders under section 7420 of this title, or any other final action of
the Administrator under this chapter which is locally or regionally
applicable to the enumeration of actions by the Administrator for which
a petition for review may be filed only in the United States Court of
Appeals for the appropriate circuit, inserted provision that petitions
otherwise capable of being filed in the Court of Appeals for the
appropriate circuit may be filed only in the Court of Appeals for the
District of Columbia if the action is based on a determination of
nationwide scope, and increased from 30 days to 60 days the period
during which the petition must be filed.
Subsec. (d). Pub. L. 95-95, 305(a), added subsec. (d).
Subsec. (e). Pub. L. 95-95, 303(d), added subsec. (e).
Subsec. (f). Pub. L. 95-95, 305(f), added subsec. (f).
Subsec. (g). Pub. L. 95-95, 305(g), added subsec. (g).
1974 -- Subsec. (b)(1). Pub. L. 93-319 inserted reference to the
Administrator's action under section 1857c-10(c)(2)(A), (B), or (C) of
this title or under regulations thereunder and substituted reference to
the filing of a petition within 30 days from the date of promulgation,
approval, or action for reference to the filing of a petition within 30
days from the date of promulgation or approval.
1971 -- Subsec. (a)(1). Pub. L. 92-157 substituted reference to
section ''7545(c)(3)'' for ''7545(c)(4)'' of this title.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Advisory committees established after Jan. 5, 1973, to terminate not
later than the expiration of the 2-year period beginning on the date of
their establishment, unless, in the case of a committee established by
the President or an officer of the Federal Government, such committee is
renewed by appropriate action prior to the expiration of such 2-year
period, or in the case of a committee established by the Congress, its
duration is otherwise provided for by law. See section 14 of Pub. L.
92-463, Oct. 6, 1972, 86 Stat. 776, set out in the Appendix to Title
5, Government Organization and Employees.
Suits, actions, and other proceedings lawfully commenced by or
against the Administrator or any other officer or employee of the United
States in his official capacity or in relation to the discharge of his
official duties under act July 14, 1955, the Clean Air Act, as in effect
immediately prior to the enactment of Pub. L. 95-95 (Aug. 7, 1977),
not to abate by reason of the taking effect of Pub. L. 95-95, see
section 406(a) of Pub. L. 95-95, set out as an Effective Date of 1977
Amendment note under section 7401 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
/1/ See References in Text note below.
/2/ So in original. Probably should be ''this''.
/3/ So in original.
/4/ So in original. The word ''to'' probably should not appear.
/5/ So in original. Probably should be ''sections''.
42 USC -- 7608. Mandatory licensing
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Whenever the Attorney General determines, upon application of the
Administrator --
(1) that --
(A) in the implementation of the requirements of section 7411, 7412,
or 7521 of this title, a right under any United States letters patent,
which is being used or intended for public or commercial use and not
otherwise reasonably available, is necessary to enable any person
required to comply with such limitation to so comply, and
(B) there are no reasonable alternative methods to accomplish such
purpose, and
(2) that the unavailability of such right may result in a substantial
lessening of competition or tendency to create a monopoly in any line of
commerce in any section of the country,
the Attorney General may so certify to a district court of the United
States, which may issue an order requiring the person who owns such
patent to license it on such reasonable terms and conditions as the
court, after hearing, may determine. Such certification may be made to
the district court for the district in which the person owning the
patent resides, does business, or is found.
(July 14, 1955, ch. 360, title III, 308, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1708.)
Section was formerly classified to section 1857h-6 of this title.
A prior section 308 of act July 14, 1955, was renumbered section 315
by Pub. L. 91-604, and is classified to section 7615 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
42 USC -- 7609. Policy review
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Environmental impact
The Administrator shall review and comment in writing on the
environmental impact of any matter relating to duties and
responsibilities granted pursuant to this chapter or other provisions of
the authority of the Administrator, contained in any (1) legislation
proposed by any Federal department or agency, (2) newly authorized
Federal projects for construction and any major Federal agency action
(other than a project for construction) to which section 4332(2)(C) of
this title applies, and (3) proposed regulations published by any
department or agency of the Federal Government. Such written comment
shall be made public at the conclusion of any such review.
(b) Unsatisfactory legislation, action, or regulation
In the event the Administrator determines that any such legislation,
action, or regulation is unsatisfactory from the standpoint of public
health or welfare or environmental quality, he shall publish his
determination and the matter shall be referred to the Council on
Environmental Quality.
(July 14, 1955, ch. 360, title III, 309, as added Dec. 31, 1970,
Pub. L. 91-604, 12(a), 84 Stat. 1709.)
Section was formerly classified to section 1857h-7 of this title.
A prior section 309 of act July 14, 1955, ch. 360, title III,
formerly 13, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77 Stat.
401; renumbered 306, Oct. 20, 1965, Pub. L. 89-272, title I,
101(4), 79 Stat. 992; renumbered 309, Nov. 21, 1967, Pub. L.
90-148, 2, 81 Stat. 506; renumbered 316, Dec. 31, 1970, Pub. L.
91-604, 12(a), 84 Stat. 1705, which related to appropriations, was
classified to section 1857l of this title and was repealed by section
306 of Pub. L. 95-95. See section 7626 of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
42 USC -- 7610. Other authority
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority and responsibilities under other laws not affected
Except as provided in subsection (b) of this section, this chapter
shall not be construed as superseding or limiting the authorities and
responsibilities, under any other provision of law, of the Administrator
or any other Federal officer, department, or agency.
(b) Nonduplication of appropriations
No appropriation shall be authorized or made under section 241, 243,
or 246 of this title for any fiscal year after the fiscal year ending
June 30, 1964, for any purpose for which appropriations may be made
under authority of this chapter.
(July 14, 1955, ch. 360, title III, 310, formerly 10, as added Dec.
17, 1963, Pub. L. 88-206, 1, 77 Stat. 401; renumbered 303, Oct. 20,
1965, Pub. L. 89-272, title I, 101(4), 79 Stat. 992; amended Nov. 21,
1967, Pub. L. 90-148, 2, 81 Stat. 505; renumbered 310 and amended
Dec. 31, 1970, Pub. L. 91-604, 12(a), 15(c)(2), 84 Stat. 1705, 1713.)
Section was formerly classified to section 1857i of this title.
A prior section 310 of act July 14, 1955, was renumbered section 317
by Pub. L. 91-604, and is set out as a Short Title note under section
7401 of this title.
Provisions similar to those comprising subsec. (a) of this section
were contained in a prior section 1857f of this title, act July 14,
1955, ch. 360, 7, 69 Stat. 323, prior to the general amendment of
this chapter by Pub. L. 88-206.
1970 -- Subsec. (a). Pub. L. 91-604, 15(c)(2), substituted
''Administrator'' for ''Secretary''.
1967 -- Subsec. (b). Pub. L. 90-148 substituted reference to section
246 of this title for reference to section 246(c) of this title.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
42 USC -- 7611. Records and audit
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Recipients of assistance to keep prescribed records
Each recipient of assistance under this chapter shall keep such
records as the Administrator shall prescribe, including records which
fully disclose the amount and disposition by such recipient of the
proceeds of such assistance, the total cost of the project or
undertaking in connection with which such assistance is given or used,
and the amount of that portion of the cost of the project or undertaking
supplied by other sources, and such other records as will facilitate an
effective audit.
(b) Audits
The Administrator and the Comptroller General of the United States,
or any of their duly authorized representatives, shall have access for
the purpose of audit and examinations to any books, documents, papers,
and records of the recipients that are pertinent to the grants received
under this chapter.
(July 14, 1955, ch. 360, title III, 311, formerly 11, as added Dec.
17, 1963, Pub. L. 88-206, 1, 77 Stat. 401; renumbered 304, Oct. 20,
1965, Pub. L. 89-272, title I, 101(4), 79 Stat. 992; amended Nov. 21,
1967, Pub. L. 90-148, 2, 81 Stat. 505; renumbered 311 and amended
Dec. 31, 1970, Pub. L. 91-604, 12(a), 15(c)(2), 84 Stat. 1705, 1713.)
Section was formerly classified to section 1857j of this title.
1970 -- Pub. L. 91-604, 15(c)(2), substituted ''Administrator'' for
''Secretary'' and ''Secretary of Health, Education, and Welfare''.
1967 -- Pub. L. 90-148 reenacted section without change.
All rules, regulations, orders, determinations, contracts,
certifications, authorizations, delegations, or other actions duly
issued, made, or taken by or pursuant to act July 14, 1955, the Clean
Air Act, as in effect immediately prior to the date of enactment of Pub.
L. 95-95 (Aug. 7, 1977) to continue in full force and effect until
modified or rescinded in accordance with act July 14, 1955, as amended
by Pub. L. 95-95 (this chapter), see section 406(b) of Pub. L. 95-95,
set out as an Effective Date of 1977 Amendment note under section 7401
of this title.
42 USC -- 7612. Economic impact analyses
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Cost-benefit analysis
The Administrator, in consultation with the Secretary of Commerce,
the Secretary of Labor, and the Council on Clean Air Compliance Analysis
(as established under subsection (f) of this section), shall conduct a
comprehensive analysis of the impact of this chapter on the public
health, economy, and environment of the United States. In performing
such analysis, the Administrator should consider the costs, benefits and
other effects associated with compliance with each standard issued for
--
(1) a criteria air pollutant subject to a standard issued under
section 7409 of this title;
(2) a hazardous air pollutant listed under section 7412 of this
title, including any technology-based standard and any risk-based
standard for such pollutant;
(3) emissions from mobile sources regulated under subchapter II of
this chapter;
(4) a limitation under this chapter for emissions of sulfur dioxide
or nitrogen oxides;
(5) a limitation under subchapter VI of this chapter on the
production of any ozone-depleting substance; and
(6) any other section of this chapter.
(b) Benefits
In describing the benefits of a standard described in subsection (a)
of this section, the Administrator shall consider all of the economic,
public health, and environmental benefits of efforts to comply with such
standard. In any case where numerical values are assigned to such
benefits, a default assumption of zero value shall not be assigned to
such benefits unless supported by specific data. The Administrator
shall assess how benefits are measured in order to assure that damage to
human health and the environment is more accurately measured and taken
into account.
(c) Costs
In describing the costs of a standard described in subsection (a) of
this section, the Administrator shall consider the effects of such
standard on employment, productivity, cost of living, economic growth,
and the overall economy of the United States.
(d) Initial report
Not later than 12 months after November 15, 1990, the Administrator,
in consultation with the Secretary of Commerce, the Secretary of Labor,
and the Council on Clean Air Compliance Analysis, shall submit a report
to the Congress that summarizes the results of the analysis described in
subsection (a) of this section, which reports --
(1) all costs incurred previous to November 15, 1990, in the effort
to comply with such standards; and
(2) all benefits that have accrued to the United States as a result
of such costs.
(e) Biennial updates; future projections
Not later than 24 months after November 15, 1990, and every 24 months
thereafter, the Administrator, in consultation with the Secretary of
Commerce, the Secretary of Labor, and the Council on Clean Air
Compliance Analysis, shall submit a report to the Congress that updates
the report issued pursuant to subsection (d) of this section, and which,
in addition, makes projections into the future regarding expected costs,
benefits, and other effects of compliance with standards pursuant to
this chapter as listed in subsection (a) of this section.
(f) Appointment of Advisory Council on Clean Air Compliance Analysis
Not later than 6 months after November 15, 1990, the Administrator,
in consultation with the Secretary of Commerce and the Secretary of
Labor, shall appoint an Advisory Council on Clean Air Compliance
Analysis of not less than nine members (hereafter in this section
referred to as the ''Council''). In appointing such members, the
Administrator shall appoint recognized experts in the fields of the
health and environmental effects of air pollution, economic analysis,
environmental sciences, and such other fields that the Administrator
determines to be appropriate.
(g) Duties of Advisory Council
The Council shall --
(1) review the data to be used for any analysis required under this
section and make recommendations to the Administrator on the use of such
data;
(2) review the methodology used to analyze such data and make
recommendations to the Administrator on the use of such methodology;
and
(3) prior to the issuance of a report required under subsection (d)
or (e) of this section, review the findings of such report, and make
recommendations to the Administrator concerning the validity and utility
of such findings.
(July 14, 1955, ch. 360, title III, 312, formerly 305, as added
Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 505; renumbered 312 and
amended Dec. 31, 1970, Pub. L. 91-604, 12(a), 15(c)(2), 84 Stat.
1705, 1713; Aug. 7, 1977, Pub. L. 95-95, title II, 224(c), 91 Stat.
767; Nov. 15, 1990, Pub. L. 101-549, title VIII, 812(a), 104 Stat.
2691.)
Section was formerly classified to section 1857j-1 of this title.
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions which related to: in subsec. (a),
detailed cost estimate, comprehensive cost and economic impact studies,
and annual reevaluation; in subsec. (b), personnel study and report to
President and Congress; and in subsec. (c), cost-effectiveness
analyses.
1977 -- Subsec. (c). Pub. L. 95-95 added subsec. (c).
1970 -- Pub. L. 91-604, 15(c)(2), substituted ''Administrator'' for
''Secretary'' wherever appearing.
Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as
otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set
out as a note under section 7401 of this title.
Advisory councils established after Jan. 5, 1973, to terminate not
later than the expiration of the 2-year period beginning on the date of
their establishment, unless, in the case of a council established by the
President or an officer of the Federal Government, such council is
renewed by appropriate action prior to the expiration of such 2-year
period, or in the case of a council established by Congress, its
duration is otherwise provided by law. See sections 3(2) and 14 of Pub.
L. 92-463, Oct. 6, 1972, 86 Stat. 770, 776, set out in the Appendix
to Title 5, Government Organization and Employees.
Section 811 of Pub. L. 101-549 provided that:
''(a) Findings. -- The Congress finds that --
''(1) all nations have the responsibility to adopt and enforce
effective air quality standards and requirements and the United States,
in enacting this Act (see Tables for classification), is carrying out
its responsibility in this regard;
''(2) as a result of complying with this Act, businesses in the
United States will make significant capital investments and incur
incremental costs in implementing control technology standards;
''(3) such compliance may impair the competitiveness of certain
United States jobs, production, processes, and products if foreign goods
are produced under less costly environmental standards and requirements
than are United States goods; and
''(4) mechanisms should be sought through which the United States and
its trading partners can agree to eliminate or reduce competitive
disadvantages.
''(b) Action by the President. --
''(1) In general. -- Within 18 months after the date of the enactment
of the Clean Air Act Amendments of 1990 (Nov. 15, 1990), the President
shall submit to the Congress a report --
''(A) identifying and evaluating the economic effects of --
''(i) the significant air quality standards and controls required
under this Act, and
''(ii) the differences between the significant standards and controls
required under this Act and similar standards and controls adopted and
enforced by the major trading partners of the United States,
on the international competitiveness of United States
manufacturers; and
''(B) containing a strategy for addressing such economic effects
through trade consultations and negotiations.
''(2) Additional reporting requirements. -- (A) The evaluation
required under paragraph (1)(A) shall examine the extent to which the
significant air quality standards and controls required under this Act
are comparable to existing internationally-agreed norms.
''(B) The strategy required to be developed under paragraph (1)(B)
shall include recommended options (such as the harmonization of
standards and trade adjustment measures) for reducing or eliminating
competitive disadvantages caused by differences in standards and
controls between the United States and each of its major trading
partners.
''(3) Public comment. -- Interested parties shall be given an
opportunity to submit comments regarding the evaluations and strategy
required in the report under paragraph (1). The President shall take
any such comment into account in preparing the report.
''(4) Interim report. -- Within 9 months after the date of the
enactment of the Clean Air Act Amendments of 1990 (Nov. 15, 1990), the
President shall submit to the Congress an interim report on the progress
being made in complying with paragraph (1).''
Section 812(b) of Pub. L. 101-549 provided that: ''Commencing on
the second year after the date of the enactment of the Clean Air Act
Amendments of 1990 (Nov. 15, 1990) and annually thereafter, the
Comptroller General of the General Accounting Office, in consultation
with other agencies, such as the Environmental Protection Agency, the
Department of Labor, the Department of Commerce, the United States Trade
Representative, the National Academy of Sciences, the Office of
Technology Assessment, the National Academy of Engineering, the Council
on Environmental Quality, and the Surgeon General, shall provide a
report to the Congress on the incremental human health and environmental
benefits, and incremental costs beyond current clean air requirements of
the new control strategies and technologies required by this Act (see
Tables for classification). The report shall include, for such
strategies and technologies, an analysis of the actual emissions
reductions beyond existing practice, the effects on human life, human
health and the environment (including both positive impacts and those
that may be detrimental to jobs and communities resulting from loss of
employers and employment, etc.), the energy security impacts, and the
effect on United States products and industrial competitiveness in
national and international markets.''
42 USC -- 7613. Repealed. Pub. L. 101-549, title VIII, 803, Nov. 15,
1990, 104 Stat. 2689
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, act July 14, 1955, ch. 360, title III, 313, formerly 306,
as added Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 506; renumbered
313 and amended Dec. 31, 1970, Pub. L. 91-604, 12(a), 15(c)(2), 84
Stat. 1705, 1713; Aug. 7, 1977, Pub. L. 95-95, title III, 302(b), 91
Stat. 771, required annual report to Congress on progress of programs
under this chapter.
42 USC -- 7614. Labor standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Administrator shall take such action as may be necessary to
insure that all laborers and mechanics employed by contractors or
subcontractors on projects assisted under this chapter shall be paid
wages at rates not less than those prevailing for the same type of work
on similar construction in the locality as determined by the Secretary
of Labor, in accordance with the Act of March 3, 1931, as amended, known
as the Davis-Bacon Act (46 Stat. 1494; 40 U.S.C. 276a -- 276a-5). The
Secretary of Labor shall have, with respect to the labor standards
specified in this subsection, the authority and functions set forth in
Reorganization Plan Numbered 14 of 1950 (15 F.R. 3176; 64 Stat. 1267)
and section 276c of title 40.
(July 14, 1955, ch. 360, title III, 314, formerly 307, as added
Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 506; renumbered 314 and
amended Dec. 31, 1970, Pub. L. 91-604, 12(a), 15(c)(2), 84 Stat.
1705, 1713.)
The Davis-Bacon Act, referred to in text, is act Mar. 3, 1931, ch.
411, 46 Stat. 1494, as amended, which is classified generally to
sections 276a to 276a-5 of Title 40, Public Buildings, Property, and
Works. For complete classification of this Act to the Code, see Short
Title note set out under section 276a of Title 40 and Tables.
Reorganization Plan Numbered 14 of 1950, referred to in text, is set
out in the Appendix to Title 5, Government Organization and Employees.
Section was formerly classified to section 1857j-3 of this title.
1970 -- Pub. L. 91-604, 15(c)(2), substituted ''Administrator'' for
''Secretary'' meaning the Secretary of Health, Education, and Welfare.
42 USC -- 7615. Separability
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
If any provision of this chapter, or the application of any provision
of this chapter to any person or circumstance, is held invalid, the
application of such provision to other persons or circumstances, and the
remainder of this chapter shall not be affected thereby.
(July 14, 1955, ch. 360, title III, 315, formerly 12, as added Dec.
17, 1963, Pub. L. 88-206, 1, 77 Stat. 401, renumbered 305, Oct. 20,
1965, Pub. L. 89-272, title I, 101(4), 79 Stat. 992, amended and
renumbered 308, Nov. 21, 1967, Pub. L. 90-148, 2, 81 Stat. 506, and
renumbered 315, Dec. 31, 1970, Pub. L. 91-604, 12(a), 84 Stat. 1705.)
Section was formerly classified to section 1857k of this title.
1967 -- Pub. L. 90-148 reenacted section without change.
42 USC -- 7616. Sewage treatment grants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Construction
No grant which the Administrator is authorized to make to any
applicant for construction of sewage treatment works in any area in any
State may be withheld, conditioned, or restricted by the Administrator
on the basis of any requirement of this chapter except as provided in
subsection (b) of this section.
(b) Withholding, conditioning, or restriction of construction grants
The Administrator may withhold, condition, or restrict the making of
any grant for construction referred to in subsection (a) of this section
only if he determines that --
(1) such treatment works will not comply with applicable standards
under section 7411 or 7412 of this title,
(2) the State does not have in effect, or is not carrying out, a
State implementation plan approved by the Administrator which expressly
quantifies and provides for the increase in emissions of each air
pollutant (from stationary and mobile sources in any area to which
either part C or part D of subchapter I of this chapter applies for such
pollutant) which increase may reasonably be anticipated to result
directly or indirectly from the new sewage treatment capacity which
would be created by such construction.
(3) the construction of such treatment works would create new sewage
treatment capacity which --
(A) may reasonably be anticipated to cause or contribute to, directly
or indirectly, an increase in emissions of any air pollutant in excess
of the increase provided for under the provisions referred to in
paragraph (2) for any such area, or
(B) would otherwise not be in conformity with the applicable
implementation plan, or
(4) such increase in emissions would interfere with, or be
inconsistent with, the applicable implementation plan for any other
State.
In the case of construction of a treatment works which would result,
directly or indirectly, in an increase in emissions of any air pollutant
from stationary and mobile sources in an area to which part D of
subchapter I of this chapter applies, the quantification of emissions
referred to in paragraph (2) shall include the emissions of any such
pollutant resulting directly or indirectly from areawide and nonmajor
stationary source growth (mobile and stationary) for each such area.
(c) National Environmental Policy Act
Nothing in this section shall be construed to amend or alter any
provision of the National Environmental Policy Act (42 U.S.C. 4321 et
seq.) or to affect any determination as to whether or not the
requirements of such Act have been met in the case of the construction
of any sewage treatment works.
(July 14, 1955, ch. 360, title III, 316, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 306, 91 Stat. 777.)
The National Environmental Policy Act, referred to in subsec. (c),
probably means the National Environmental Policy Act of 1969, Pub. L.
91-190, Jan. 1, 1970, 83 Stat. 852, as amended, which is classified
generally to chapter 55 ( 4321 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 4321 of this title and Tables.
A prior section 316 of act July 14, 1955, ch. 360, title III,
formerly 13, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77 Stat.
401; renumbered 306 and amended Oct. 20, 1965, Pub. L. 89-272, title
I, 101(4), (6), (7), 79 Stat. 992; Oct. 15, 1966, Pub. L. 89-675,
2(a), 80 Stat. 954; renumbered 309 and amended Nov. 21, 1967, Pub.
L. 90-148, 2, 81 Stat. 506; renumbered 316 and amended Dec. 31,
1970, Pub. L. 91-604, 12(a), 13(b), 84 Stat. 1705, 1709; Apr. 9,
1973, Pub. L. 93-15, 1(c), 87 Stat. 11; June 22, 1974, Pub. L.
93-319, 13(c), 88 Stat. 265, which authorized appropriations for air
pollution control, was repealed by section 306 of Pub. L. 95-95. See
section 7626 of this title.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7617. Economic impact assessment
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Notice of proposed rulemaking; substantial revisions
This section applies to action of the Administrator in promulgating
or revising --
(1) any new source standard of performance under section 7411 of this
title,
(2) any regulation under section 7411(d) of this title,
(3) any regulation under part B /1/ of subchapter I of this chapter
(relating to ozone and stratosphere protection),
(4) any regulation under part C of subchapter I of this chapter
(relating to prevention of significant deterioration of air quality),
(5) any regulation establishing emission standards under section 7521
of this title and any other regulation promulgated under that section,
(6) any regulation controlling or prohibiting any fuel or fuel
additive under section 7545(c) of this title, and
(7) any aircraft emission standard under section 7571 of this title.
Nothing in this section shall apply to any standard or regulation
described in paragraphs (1) through (7) of this subsection unless the
notice of proposed rulemaking in connection with such standard or
regulation is published in the Federal Register after the date ninety
days after August 7, 1977. In the case of revisions of such standards
or regulations, this section shall apply only to revisions which the
Administrator determines to be substantial revisions.
(b) Preparation of assessment by Administrator
Before publication of notice of proposed rulemaking with respect to
any standard or regulation to which this section applies, the
Administrator shall prepare an economic impact assessment respecting
such standard or regulation. Such assessment shall be included in the
docket required under section 7607(d)(2) of this title and shall be
available to the public as provided in section 7607(d)(4) of this title.
Notice of proposed rulemaking shall include notice of such availability
together with an explanation of the extent and manner in which the
Administrator has considered the analysis contained in such economic
impact assessment in proposing the action. The Administrator shall also
provide such an explanation in his notice of promulgation of any
regulation or standard referred to in subsection (a) of this section.
Each such explanation shall be part of the statements of basis and
purpose required under sections 7607(d)(3) and 7607(d)(6) of this title.
(c) Analysis
Subject to subsection (d) of this section, the assessment required
under this section with respect to any standard or regulation shall
contain an analysis of --
(1) the costs of compliance with any such standard or regulation,
including extent to which the costs of compliance will vary depending on
(A) the effective date of the standard or regulation, and (B) the
development of less expensive, more efficient means or methods of
compliance with the standard or regulation;
(2) the potential inflationary or recessionary effects of the
standard or regulation;
(3) the effects on competition of the standard or regulation with
respect to small business;
(4) the effects of the standard or regulation on consumer costs; and
(5) the effects of the standard or regulation on energy use.
Nothing in this section shall be construed to provide that the
analysis of the factors specified in this subsection affects or alters
the factors which the Administrator is required to consider in taking
any action referred to in subsection (a) of this section.
(d) Extensiveness of assessment
The assessment required under this section shall be as extensive as
practicable, in the judgment of the Administrator taking into account
the time and resources available to the Environmental Protection Agency
and other duties and authorities which the Administrator is required to
carry out under this chapter.
(e) Limitations on construction of section
Nothing in this section shall be construed --
(1) to alter the basis on which a standard or regulation is
promulgated under this chapter;
(2) to preclude the Administrator from carrying out his
responsibility under this chapter to protect public health and welfare;
or
(3) to authorize or require any judicial review of any such standard
or regulation, or any stay or injunction of the proposal, promulgation,
or effectiveness of such standard or regulation on the basis of failure
to comply with this section.
(f) Citizen suits
The requirements imposed on the Administrator under this section
shall be treated as nondiscretionary duties for purposes of section
7604(a)(2) of this title, relating to citizen suits. The sole method
for enforcement of the Administrator's duty under this section shall be
by bringing a citizen suit under such section 7604(a)(2) for a court
order to compel the Administrator to perform such duty. Violation of
any such order shall subject the Administrator to penalties for contempt
of court.
(g) Costs
In the case of any provision of this chapter in which costs are
expressly required to be taken into account, the adequacy or inadequacy
of any assessment required under this section may be taken into
consideration, but shall not be treated for purposes of judicial review
of any such provision as conclusive with respect to compliance or
noncompliance with the requirement of such provision to take cost into
account.
(July 14, 1955, ch. 360, title III, 317, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 307, 91 Stat. 778, and amended Nov. 9, 1978, Pub.
L. 95-623, 13(d), 92 Stat. 3458.)
Part B of subchapter I of this chapter, referred to in subsec.
(a)(3), was repealed by Pub. L. 101-549, title VI, 601, Nov. 15,
1990, 104 Stat. 2648. See subchapter VI ( 7671 et seq.) of this
chapter.
Another section 317 of act July 14, 1955, is set out as a Short Title
note under section 7401 of this title.
1978 -- Subsec. (a)(1). Pub. L. 95-623 substituted ''section 7411''
for ''section 7411(b)''.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
/1/ See References in Text note below.
42 USC -- 7618. Repealed. Pub. L. 101-549, title I, 108(q), Nov. 15,
1990, 104 Stat. 2469
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, act July 14, 1955, ch. 360, title III, 318, as added Aug.
7, 1977, Pub. L. 95-95, title III, 308, 91 Stat. 780, related to
financial disclosure and conflicts of interest.
42 USC -- 7619. Air quality monitoring
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Not later than one year after August 7, 1977, and after notice and
opportunity for public hearing, the Administrator shall promulgate
regulations establishing an air quality monitoring system throughout the
United States which --
(1) utilizes uniform air quality monitoring criteria and methodology
and measures such air quality according to a uniform air quality index,
(2) provides for air quality monitoring stations in major urban areas
and other appropriate areas throughout the United States to provide
monitoring such as will supplement (but not duplicate) air quality
monitoring carried out by the States required under any applicable
implementation plan,
(3) provides for daily analysis and reporting of air quality based
upon such uniform air quality index, and
(4) provides for recordkeeping with respect to such monitoring data
and for periodic analysis and reporting to the general public by the
Administrator with respect to air quality based upon such data.
The operation of such air quality monitoring system may be carried
out by the Administrator or by such other departments, agencies, or
entities of the Federal Government (including the National Weather
Service) as the President may deem appropriate. Any air quality
monitoring system required under any applicable implementation plan
under section 7410 of this title shall, as soon as practicable following
promulgation of regulations under this section, utilize the standard
criteria and methodology, and measure air quality according to the
standard index, established under such regulations.
(July 14, 1955, ch. 360, title III, 319, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 309, 91 Stat. 781.)
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7620. Standardized air quality modeling
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Conferences
Not later than six months after August 7, 1977, and at least every
three years thereafter, the Administrator shall conduct a conference on
air quality modeling. In conducting such conference, special attention
shall be given to appropriate modeling necessary for carrying out part C
of subchapter I of this chapter (relating to prevention of significant
deterioration of air quality).
(b) Conferees
The conference conducted under this section shall provide for
participation by the National Academy of Sciences, representatives of
State and local air pollution control agencies, and appropriate Federal
agencies, including the National Science Foundation; the National
Oceanic and Atmospheric Administration, and the National Institute of
Standards and Technology.
(c) Comments; transcripts
Interested persons shall be permitted to submit written comments and
a verbatim transcript of the conference proceedings shall be maintained.
(d) Promulgation and revision of regulations relating to air quality
modeling
The comments submitted and the transcript maintained pursuant to
subsection (c) of this section shall be included in the docket required
to be established for purposes of promulgating or revising any
regulation relating to air quality modeling under part C of subchapter I
of this chapter.
(July 14, 1955, ch. 360, title III, 320, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 310, 91 Stat. 782, and amended Aug. 23, 1988, Pub.
L. 100-418, title V, 5115(c), 102 Stat. 1433.)
1988 -- Subsec. (b). Pub. L. 100-418 substituted ''National
Institute of Standards and Technology'' for ''National Bureau of
Standards''.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7621. Employment effects
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Continuous evaluation of potential loss or shifts of employment
The Administrator shall conduct continuing evaluations of potential
loss or shifts of employment which may result from the administration or
enforcement of the provision of this chapter and applicable
implementation plans, including where appropriate, investigating
threatened plant closures or reductions in employment allegedly
resulting from such administration or enforcement.
(b) Request for investigation; hearings; record; report
Any employee, or any representative of such employee, who is
discharged or laid off, threatened with discharge or layoff, or whose
employment is otherwise adversely affected or threatened to be adversely
affected because of the alleged results of any requirement imposed or
proposed to be imposed under this chapter, including any requirement
applicable to Federal facilities and any requirement imposed by a State
or political subdivision thereof, may request the Administrator to
conduct a full investigation of the matter. Any such request shall be
reduced to writing, shall set forth with reasonable particularity the
grounds for the request, and shall be signed by the employee, or
representative of such employee, making the request. The Administrator
shall thereupon investigate the matter and, at the request of any party,
shall hold public hearings on not less than five days' notice. At such
hearings, the Administrator shall require the parties, including the
employer involved, to present information relating to the actual or
potential effect of such requirements on employment and the detailed
reasons or justification therefor. If the Administrator determines that
there are no reasonable grounds for conducting a public hearing he shall
notify (in writing) the party requesting such hearing of such a
determination and the reasons therefor. If the Administrator does
convene such a hearing, the hearing shall be on the record. Upon
receiving the report of such investigation, the Administrator shall make
findings of fact as to the effect of such requirements on employment and
on the alleged actual or potential discharge, layoff, or other adverse
effect on employment, and shall make such recommendations as he deems
appropriate. Such report, findings, and recommendations shall be
available to the public.
(c) Subpenas; confidential information; witnesses; penalty
In connection with any investigation or public hearing conducted
under subsection (b) of this section or as authorized in section 7419 of
this title (relating to primary nonferrous smelter orders), the
Administrator may issue subpenas for the attendance and testimony of
witnesses and the production of relevant papers, books and documents,
and he may administer oaths. Except for emission data, upon a showing
satisfactory to the Administrator by such owner or operator that such
papers, books, documents, or information or particular part thereof, if
made public, would divulge trade secrets or secret processes of such
owner, or operator, the Administrator shall consider such record,
report, or information or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18, except that
such paper, book, document, or information may be disclosed to other
officers, employees, or authorized representatives of the United States
concerned with carrying out this chapter, or when relevant in any
proceeding under this chapter. Witnesses summoned shall be paid the
same fees and mileage that are paid witnesses in the courts of the
United States. In cases of contumacy or refusal to obey a subpena
served upon any person under this subparagraph, the district court of
the United States for any district in which such person is found or
resides or transacts business, upon application by the United States and
after notice to such person, shall have jurisdiction to issue an order
requiring such person to appear and give testimony before the
Administrator, to appear and produce papers, books, and documents before
the Administrator, or both, and any failure to obey such order of the
court may be punished by such court as a contempt thereof.
(d) Limitations on construction of section
Nothing in this section shall be construed to require or authorize
the Administrator, the States, or political subdivisions thereof, to
modify or withdraw any requirement imposed or proposed to be imposed
under this chapter.
(July 14, 1955, ch. 360, title III, 321, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 311, 91 Stat. 782.)
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
Section 403(e) of Pub. L. 95-95 provided that the Secretary of
Labor, in consultation with the Administrator, conduct a study of
potential dislocation of employees due to implementation of laws
administered by the Administrator and that the Secretary submit to
Congress the results of the study not more than one year after Aug, 7,
1977.
42 USC -- 7622. Employee protection
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Discharge or discrimination prohibited
No employer may discharge any employee or otherwise discriminate
against any employee with respect to his compensation, terms,
conditions, or privileges of employment because the employee (or any
person acting pursuant to a request of the employee) --
(1) commenced, caused to be commenced, or is about to commence or
cause to be commenced a proceeding under this chapter or a proceeding
for the administration or enforcement of any requirement imposed under
this chapter or under any applicable implementation plan,
(2) testified or is about to testify in any such proceeding, or
(3) assisted or participated or is about to assist or participate in
any manner in such a proceeding or in any other action to carry out the
purposes of this chapter.
(b) Complaint charging unlawful discharge or discrimination;
investigation; order
(1) Any employee who believes that he has been discharged or
otherwise discriminated against by any person in violation of subsection
(a) of this section may, within thirty days after such violation occurs,
file (or have any person file on his behalf) a complaint with the
Secretary of Labor (hereinafter in this subsection referred to as the
''Secretary'') alleging such discharge or discrimination. Upon receipt
of such a complaint, the Secretary shall notify the person named in the
complaint of the filing of the complaint.
(2)(A) Upon receipt of a complaint filed under paragraph (1), the
Secretary shall conduct an investigation of the violation alleged in the
complaint. Within thirty days of the receipt of such complaint, the
Secretary shall complete such investigation and shall notify in writing
the complainant (and any person acting in his behalf) and the person
alleged to have committed such violation of the results of the
investigation conducted pursuant to this subparagraph. Within ninety
days of the receipt of such complaint the Secretary shall, unless the
proceeding on the complaint is terminated by the Secretary on the basis
of a settlement entered into by the Secretary and the person alleged to
have committed such violation, issue an order either providing the
relief prescribed by subparagraph (B) or denying the complaint. An
order of the Secretary shall be made on the record after notice and
opportunity for public hearing. The Secretary may not enter into a
settlement terminating a proceeding on a complaint without the
participation and consent of the complainant.
(B) If, in response to a complaint filed under paragraph (1), the
Secretary determines that a violation of subsection (a) of this section
has occurred, the Secretary shall order the person who committed such
violation to (i) take affirmative action to abate the violation, and
(ii) reinstate the complainant to his former position together with the
compensation (including back pay), terms, conditions, and privileges of
his employment, and the Secretary may order such person to provide
compensatory damages to the complainant. If an order is issued under
this paragraph, the Secretary, at the request of the complainant, shall
assess against the person against whom the order is issued a sum equal
to the aggregate amount of all costs and expenses (including attorneys'
and expert witness fees) reasonably incurred, as determined by the
Secretary, by the complainant for, or in connection with, the bringing
of the complaint upon which the order was issued.
(c) Review
(1) Any person adversely affected or aggrieved by an order issued
under subsection (b) of this section may obtain review of the order in
the United States court of appeals for the circuit in which the
violation, with respect to which the order was issued, allegedly
occurred. The petition for review must be filed within sixty days from
the issuance of the Secretary's order. Review shall conform to chapter
7 of title 5. The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a stay of the
Secretary's order.
(2) An order of the Secretary with respect to which review could have
been obtained under paragraph (1) shall not be subject to judicial
review in any criminal or other civil proceeding.
(d) Enforcement of order by Secretary
Whenever a person has failed to comply with an order issued under
subsection (b)(2) of this section, the Secretary may file a civil action
in the United States district court for the district in which the
violation was found to occur to enforce such order. In actions brought
under this subsection, the district courts shall have jurisdiction to
grant all appropriate relief including, but not limited to, injunctive
relief, compensatory, and exemplary damages.
(e) Enforcement of order by person on whose behalf order was issued
(1) Any person on whose behalf an order was issued under paragraph
(2) of subsection (b) of this section may commence a civil action
against the person to whom such order was issued to require compliance
with such order. The appropriate United States district court shall
have jurisdiction, without regard to the amount in controversy or the
citizenship of the parties, to enforce such order.
(2) The court, in issuing any final order under this subsection, may
award costs of litigation (including reasonable attorney and expert
witness fees) to any party whenever the court determines such award is
appropriate.
(f) Mandamus
Any nondiscretionary duty imposed by this section shall be
enforceable in a mandamus proceeding brought under section 1361 of title
28.
(g) Deliberate violation by employee
Subsection (a) of this section shall not apply with respect to any
employee who, acting without direction from his employer (or the
employer's agent), deliberately causes a violation of any requirement of
this chapter.
(July 14, 1955, ch. 360, title III, 322, as added Aug. 7, 1977, Pub.
L. 95-95, title III, 312, 91 Stat. 783.)
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
Injunctions, see rule 65, Title 28, Appendix, Judiciary and Judicial
Procedure.
Writ of mandamus abolished in United States district courts, but
relief available by appropriate action or motion, see rule 81.
42 USC -- 7623. Repealed. Pub. L. 96-300, 1(c), July 2, 1980, 94
Stat. 831
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, act July 14, 1955, ch. 360, title III, 323, as added Aug.
7, 1977, Pub. L. 95-95, title III, 313, 91 Stat. 785, and amended
Nov. 16, 1977, Pub. L. 95-190, 14(a)(81), 91 Stat. 1404; S. Res. 4,
Feb. 4, 1977; H. Res. 549, Mar. 25, 1980; July 2, 1980, Pub. L.
96-300, 1(a), 94 Stat. 831, established a National Commission on Air
Quality, prescribed numerous subjects for study and report to Congress,
enumerated specific questions for study and investigation, required
specific identification of loss or irretrievable commitment of
resources, and provided for appointment and confirmation of its
membership, cooperation of Federal executive agencies, submission of a
National Academy of Sciences study to Congress, compensation and travel
expenses, termination of Commission, appointment and compensation of
staff, and public participation.
Section 1(c) of Pub. L. 96-300 provided that this section is
repealed on date on which National Commission on Air Quality ceases to
exist pursuant to provisions of former subsec. (g) of this section,
which provided that not later than Mar. 1, 1981, a report be submitted
containing results of all Commission studies and investigations and that
Commission cease to exist on Mar. 1, 1981, if report is not submitted
on Mar. 1, 1981, or Commission would cease to exist on such date, but
not later than May 1, 1981, as determined and ordered by Commission if
report is submitted on Mar. 1, 1981.
Section 1(d) of Pub. L. 96-300 provided that nothing in any other
authority of law shall be construed to authorize or permit the extension
of the National Commission on Air Quality pursuant to any Executive
order or other Executive or agency action.
42 USC -- 7624. Cost of vapor recovery equipment
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Costs to be borne by owner of retail outlet
The regulations under this chapter applicable to vapor recovery with
respect to mobile source fuels at retail outlets of such fuels shall
provide that the cost of procurement and installation of such vapor
recovery shall be borne by the owner of such outlet (as determined under
such regulations). Except as provided in subsection (b) of this
section, such regulations shall provide that no lease of a retail outlet
by the owner thereof which is entered into or renewed after August 7,
1977, may provide for a payment by the lessee of the cost of procurement
and installation of vapor recovery equipment. Such regulations shall
also provide that the cost of procurement and installation of vapor
recovery equipment may be recovered by the owner of such outlet by means
of price increases in the cost of any product sold by such owner,
notwithstanding any provision of law.
(b) Payment by lessee
The regulations of the Administrator referred to in subsection (a) of
this section shall permit a lease of a retail outlet to provide for
payment by the lessee of the cost of procurement and installation of
vapor recovery equipment over a reasonable period (as determined in
accordance with such regulations), if the owner of such outlet does not
sell, trade in, or otherwise dispense any product at wholesale or retail
at such outlet.
(July 14, 1955, ch. 360, title III, 323, formerly 324, as added
Aug. 7, 1977, Pub. L. 95-95, title III, 314(a), 91 Stat. 788, and
amended Nov. 16, 1977, Pub. L. 95-190, 14(a)(82), 91 Stat. 1404;
renumbered 323 and amended July 2, 1980, Pub. L. 96-300, 1(b), (c), 94
Stat. 831.)
A prior section 323 of act July 14, 1955, was classified to section
7623 of this title and was repealed by Pub. L. 96-300, 1(c), July 2,
1980, 94 Stat. 831.
1980 -- Pub. L. 96-300, 1(b), which directed that last sentence of
this section be struck out was probably intended to strike sentence
purportedly added by Pub. L. 95-190. See 1977 Amendment note below and
section 7623(i) of this title.
1977 -- Pub. L. 95-190 which purported to amend subsec. (j) of this
section by inserting ''The Commission may appoint and fix the pay of
such staff as it deems necessary.'' after ''(j)'' was not executed to
this section because it did not contain a subsec. (j). See 1980
Amendment note above.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7625. Vapor recovery for small business marketers of
petroleum products
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Marketers of gasoline
The regulations under this chapter applicable to vapor recovery from
fueling of motor vehicles at retail outlets of gasoline shall not apply
to any outlet owned by an independent small business marketer of
gasoline having monthly sales of less than 50,000 gallons. In the case
of any other outlet owned by an independent small business marketer,
such regulations shall provide, with respect to independent small
business marketers of gasoline, for a three-year phase-in period for the
installation of such vapor recovery equipment at such outlets under
which such marketers shall have --
(1) 33 percent of such outlets in compliance at the end of the first
year during which such regulations apply to such marketers,
(2) 66 percent at the end of such second year, and
(3) 100 percent at the end of the third year.
(b) State requirements
Nothing in subsection (a) of this section shall be construed to
prohibit any State from adopting or enforcing, with respect to
independent small business marketers of gasoline having monthly sales of
less than 50,000 gallons, any vapor recovery requirements for mobile
source fuels at retail outlets. Any vapor recovery requirement which is
adopted by a State and submitted to the Administrator as part of its
implementation plan may be approved and enforced by the Administrator as
part of the applicable implementation plan for that State.
(c) Refiners
For purposes of this section, an independent small business marketer
of gasoline is a person engaged in the marketing of gasoline who would
be required to pay for procurement and installation of vapor recovery
equipment under section 7624 of this title or under regulations of the
Administrator, unless such person --
(1)(A) is a refiner, or
(B) controls, is controlled by, or is under common control with, a
refiner,
(C) is otherwise directly or indirectly affiliated (as determined
under the regulations of the Administrator) with a refiner or with a
person who controls, is controlled by, or is under a common control with
a refiner (unless the sole affiliation referred to herein is by means of
a supply contract or an agreement or contract to use a trademark, trade
name, service mark, or other identifying symbol or name owned by such
refiner or any such person), or
(2) receives less than 50 percent of his annual income from refining
or marketing of gasoline.
For the purpose of this section, the term ''refiner'' shall not
include any refiner whose total refinery capacity (including the
refinery capacity of any person who controls, is controlled by, or is
under common control with, such refiner) does not exceed 65,000 barrels
per day. For purposes of this section, ''control'' of a corporation
means ownership of more than 50 percent of its stock.
(July 14, 1955, ch. 360, title III, 324, formerly 325, as added
Aug. 7, 1977, Pub. L. 95-95, title III, 314(b), 91 Stat. 789, and
renumbered 324, July 2, 1980, Pub. L. 96-300, 1(c), 94 Stat. 831.)
A prior section 324 of act July 14, 1955, was renumbered section 323
by Pub. L. 96-300 and is classified to section 7624 of this title.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7625-1. Exemptions for certain territories
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a)(1) Upon petition by the governor /1/ of Guam, American Samoa, the
Virgin Islands, or the Commonwealth of the Northern Mariana Islands, the
Administrator is authorized to exempt any person or source or class of
persons or sources in such territory from any requirement under this
chapter other than section 7412 of this title or any requirement under
section 7410 of this title or part D of subchapter I of this chapter
necessary to attain or maintain a national primary ambient air quality
standard. Such exemption may be granted if the Administrator finds that
compliance with such requirement is not feasible or is unreasonable due
to unique geographical, meteorological, or economic factors of such
territory, or such other local factors as the Administrator deems
significant. Any such petition shall be considered in accordance with
section 7607(d) of this title and any exemption under this subsection
shall be considered final action by the Administrator for the purposes
of section 7607(b) of this title.
(2) The Administrator shall promptly notify the Committees on Energy
and Commerce and on Interior and Insular Affairs of the House of
Representatives and the Committees on Environment and Public Works and
on Energy and Natural Resources of the Senate upon receipt of any
petition under this subsection and of the approval or rejection of such
petition and the basis for such action.
(b) Notwithstanding any other provision of this chapter, any fossil
fuel fired steam electric power plant operating within Guam as of
December 8, 1983, is hereby exempted from:
(1) any requirement of the new source performance standards relating
to sulfur dioxide promulgated under section 7411 of this title as of
December 8, 1983; and
(2) any regulation relating to sulfur dioxide standards or
limitations contained in a State implementation plan approved under
section 7410 of this title as of December 8, 1983: Provided, That such
exemption shall expire eighteen months after December 8, 1983, unless
the Administrator determines that such plant is making all emissions
reductions practicable to prevent exceedances of the national ambient
air quality standards for sulfur dioxide.
(July 14, 1955, ch. 360, title III, 325, as added Dec. 8, 1983, Pub.
L. 98-213, 11, 97 Stat. 1461, and amended Nov. 15, 1990, Pub. L.
101-549, title VIII, 806, 104 Stat. 2689.)
A prior section 325 of act July 14, 1955, was renumbered section 326
by Pub. L. 98-213 and is classified to section 7625a of this title.
Another prior section 325 of act July 14, 1955, was renumbered
section 324 by Pub. L. 96-300 and is classified to section 7625 of this
title.
1990 -- Subsec. (a)(1). Pub. L. 101-549, which directed the
insertion of ''the Virgin Islands,'' after ''American Samoa,'' in
''(s)ection 324(a)(1) of the Clean Air Act (42 U.S.C. 7625-1(a)(1))'',
was executed by making the insertion in subsec. (a)(1) of this section
to reflect the probable intent of Congress.
/1/ So in original. Probably should be capitalized.
42 USC -- 7625a. Statutory construction
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The parenthetical cross references in any provision of this chapter
to other provisions of the chapter, or other provisions of law, where
the words ''relating to'' or ''pertaining to'' are used, are made only
for convenience, and shall be given no legal effect.
(July 14, 1955, ch. 360, title III, 326, as added Nov. 16, 1977,
Pub. L. 95-190, 14(a)(84), 91 Stat. 1404, and renumbered 325, July 2,
1980, Pub. L. 96-300, 1(c), 94 Stat. 831; renumbered 326, Dec. 8,
1983, Pub. L. 98-213, 11, 97 Stat. 1461.)
A prior section 326 of act July 14, 1955, was renumbered section 327
by Pub. L. 98-213 and is classified to section 7626 of this title.
42 USC -- 7626. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
There are authorized to be appropriated to carry out this chapter
such sums as may be necessary for the 7 fiscal years commencing after
November 15, 1990.
(b) Grants for planning
There are authorized to be appropriated (1) not more than $50,000,000
to carry out section 7505 of this title beginning in fiscal year 1991,
to be available until expended, to develop plan revisions required by
subpart 2, 3, or 4 of part D of subchapter I of this chapter, and (2)
not more than $15,000,000 for each of the 7 fiscal years commencing
after November 15, 1990, to make grants to the States to prepare
implementation plans as required by subpart 2, 3, or 4 of part D of
subchapter I of this chapter.
(July 14, 1955, ch. 360, title III, 327, formerly 325, as added
Aug. 7, 1977, Pub. L. 95-95, title III, 315, 91 Stat. 790; renumbered
327 and amended Nov. 16, 1977, Pub. L. 95-190, 14(a)(83), 91 Stat.
1404; renumbered 326, July 2, 1980, Pub. L. 96-300, 1(c), 94 Stat.
831; renumbered 327, Dec. 8, 1983, Pub. L. 98-213, 11, 97 Stat. 1461;
Nov. 15, 1990, Pub. L. 101-549, title VIII, 822, 104 Stat. 2699.)
Provisions similar to those comprising this section were contained in
section 1857l of this title, act July 14, 1955, ch. 360, title III,
316, formerly 13, as added Dec. 17, 1963, Pub. L. 88-206, 1, 77
Stat. 401; renumbered 306 and amended Oct. 20, 1965, Pub. L.
89-272, title I, 101(4), (6), (7), 79 Stat. 992; Oct. 15, 1966, Pub.
L. 89-675, 2(a), 80 Stat. 954; renumbered 309 and amended Nov. 21,
1967, Pub. L. 90-148, 2, 81 Stat. 506; renumbered 316 and amended
Dec. 31, 1970, Pub. L. 91-604, 12(a), 13(b), 84 Stat. 1705, 1709;
Apr. 9, 1973, Pub. L. 93-15, 1(c), 87 Stat. 11; June 22, 1974, Pub.
L. 93-319, 13(c), 88 Stat. 265, prior to its repeal by section 306 of
Pub. L. 95-95.
1990 -- Pub. L. 101-549 amended section generally, substituting
present provisions for provisions authorizing specific appropriations
for certain programs and periods and appropriations of $200,000,000 for
fiscal years 1978 through 1981 to carry out the other programs under
this chapter.
1977 -- Subsec. (b)(4). Pub. L. 95-190 substituted ''section
7403(a)(5)'' for ''section 7403(b)(5)''.
Section effective Aug. 7, 1977, except as otherwise expressly
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective
Date of 1977 Amendment note under section 7401 of this title.
42 USC -- 7627. Air pollution from Outer Continental Shelf activities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicable requirements for certain areas
(1) In general
Not later than 12 months after November 15, 1990, following
consultation with the Secretary of the Interior and the Commandant of
the United States Coast Guard, the Administrator, by rule, shall
establish requirements to control air pollution from Outer Continental
Shelf sources located offshore of the States along the Pacific, Arctic
and Atlantic Coasts, and along the United States Gulf Coast off the
State of Florida eastward of longitude 87 degrees and 30 minutes (''OCS
sources'') to attain and maintain Federal and State ambient air quality
standards and to comply with the provisions of part C of subchapter I of
this chapter. For such sources located within 25 miles of the seaward
boundary of such States, such requirements shall be the same as would be
applicable if the source were located in the corresponding onshore area,
and shall include, but not be limited to, State and local requirements
for emission controls, emission limitations, offsets, permitting,
monitoring, testing, and reporting. New OCS sources shall comply with
such requirements on the date of promulgation and existing OCS sources
shall comply on the date 24 months thereafter. The Administrator shall
update such requirements as necessary to maintain consistency with
onshore regulations. The authority of this subsection shall supersede
section 5(a)(8) of the Outer Continental Shelf Lands Act (43 U.S.C.
1334(a)(8)) but shall not repeal or modify any other Federal, State, or
local authorities with respect to air quality. Each requirement
established under this section shall be treated, for purposes of
sections 7413, 7414, 7416, 7420, and 7604 of this title, as a standard
under section 7411 of this title and a violation of any such requirement
shall be considered a violation of section 7411(e) of this title.
(2) Exemptions
The Administrator may exempt an OCS source from a specific
requirement in effect under regulations under this subsection if the
Administrator finds that compliance with a pollution control technology
requirement is technically infeasible or will cause an unreasonable
threat to health and safety. The Administrator shall make written
findings explaining the basis of any exemption issued pursuant to this
subsection and shall impose another requirement equal to or as close in
stringency to the original requirement as possible. The Administrator
shall ensure that any increase in emissions due to the granting of an
exemption is offset by reductions in actual emissions, not otherwise
required by this chapter, from the same source or other sources in the
area or in the corresponding onshore area. The Administrator shall
establish procedures to provide for public notice and comment on
exemptions proposed pursuant to this subsection.
(3) State procedures
Each State adjacent to an OCS source included under this subsection
may promulgate and submit to the Administrator regulations for
implementing and enforcing the requirements of this subsection. If the
Administrator finds that the State regulations are adequate, the
Administrator shall delegate to that State any authority the
Administrator has under this chapter to implement and enforce such
requirements. Nothing in this subsection shall prohibit the
Administrator from enforcing any requirement of this section.
(4) Definitions
For purposes of subsections (a) and (b) of this section --
(A) Outer Continental Shelf
The term ''Outer Continental Shelf'' has the meaning provided by
section 2 of the Outer Continental Shelf Lands Act (43 U.S.C. 1331).
(B) Corresponding onshore area
The term ''corresponding onshore area'' means, with respect to any
OCS source, the onshore attainment or nonattainment area that is closest
to the source, unless the Administrator determines that another area
with more stringent requirements with respect to the control and
abatement of air pollution may reasonably be expected to be affected by
such emissions. Such determination shall be based on the potential for
air pollutants from the OCS source to reach the other onshore area and
the potential of such air pollutants to affect the efforts of the other
onshore area to attain or maintain any Federal or State ambient air
quality standard or to comply with the provisions of part C of
subchapter I of this chapter.
(C) Outer Continental Shelf source
The terms ''Outer Continental Shelf source'' and ''OCS source''
include any equipment, activity, or facility which --
(i) emits or has the potential to emit any air pollutant,
(ii) is regulated or authorized under the Outer Continental Shelf
Lands Act (43 U.S.C. 1331 et seq.), and
(iii) is located on the Outer Continental Shelf or in or on waters
above the Outer Continental Shelf.
Such activities include, but are not limited to, platform and drill
ship exploration, construction, development, production, processing, and
transportation. For purposes of this subsection, emissions from any
vessel servicing or associated with an OCS source, including emissions
while at the OCS source or en route to or from the OCS source within 25
miles of the OCS source, shall be considered direct emissions from the
OCS source.
(D) New and existing OCS sources
The term ''new OCS source'' means an OCS source which is a new source
within the meaning of section 7411(a) of this title. The term
''existing OCS source'' means any OCS source other than a new OCS
source.
(b) Requirements for other offshore areas
For portions of the United States Gulf Coast Outer Continental Shelf
that are adjacent to the States not covered by subsection (a) of this
section which are Texas, Louisiana, Mississippi, and Alabama, the
Secretary shall consult with the Administrator to assure coordination of
air pollution control regulation for Outer Continental Shelf emissions
and emissions in adjacent onshore areas. Concurrently with this
obligation, the Secretary shall complete within 3 years of November 15,
1990, a research study examining the impacts of emissions from Outer
Continental Shelf activities in such areas that fail to meet the
national ambient air quality standards for either ozone or nitrogen
dioxide. Based on the results of this study, the Secretary shall
consult with the Administrator and determine if any additional actions
are necessary. There are authorized to be appropriated such sums as may
be necessary to provide funding for the study required under this
section.
(c) Coastal waters
(1) The study report of section 7412(n) /1/ of this title shall apply
to the coastal waters of the United States to the same extent and in the
same manner as such requirements apply to the Great Lakes, the
Chesapeake Bay, and their tributary waters.
(2) The regulatory requirements of section 7412(n) /1/ of this title
shall apply to the coastal waters of the States which are subject to
subsection (a) of this section, to the same extent and in the same
manner as such requirements apply to the Great Lakes, the Chesapeake
Bay, and their tributary waters.
(July 14, 1955, ch. 360, title III, 328, as added Nov. 15, 1990,
Pub. L. 101-549, title VIII, 801, 104 Stat. 2685.)
The Outer Continental Shelf Lands Act, referred to in subsec.
(a)(4)(C)(ii), is act Aug. 7, 1953, ch. 345, 67 Stat. 462, as
amended, which is classified generally to subchapter III ( 1331 et seq.)
of chapter 29 of Title 43, Public Lands. For complete classification of
this Act to the Code, see Short Title note set out under section 1331 of
Title 43 and Tables.
/1/ So in original. Probably should be section ''7412(m)''.
42 USC -- SUBCHAPTER IV -- NOISE POLLUTION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Another title IV of act July 14, 1955, as added by Pub. L. 101-549,
title IV, 401, Nov. 15, 1990, 104 Stat. 2584, is classified to
subchapter IV-A ( 7651 et seq.) of this chapter.
42 USC -- 7641. Noise abatement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Office of Noise Abatement and Control
The Administrator shall establish within the Environmental Protection
Agency an Office of Noise Abatement and Control, and shall carry out
through such Office a full and complete investigation and study of noise
and its effect on the public health and welfare in order to (1) identify
and classify causes and sources of noise, and (2) determine --
(A) effects at various levels;
(B) projected growth of noise levels in urban areas through the year
2000;
(C) the psychological and physiological effect on humans;
(D) effects of sporadic extreme noise (such as jet noise near
airports) as compared with constant noise;
(E) effect on wildlife and property (including values);
(F) effect of sonic booms on property (including values); and
(G) such other matters as may be of interest in the public welfare.
(b) Investigation techniques; report and recommendations
In conducting such investigation, the Administrator shall hold public
hearings, conduct research, experiments, demonstrations, and studies.
The Administrator shall report the results of such investigation and
study, together with his recommendations for legislation or other
action, to the President and the Congress not later than one year after
December 31, 1970.
(c) Abatement of noise from Federal activities
In any case where any Federal department or agency is carrying out or
sponsoring any activity resulting in noise which the Administrator
determines amounts to a public nuisance or is otherwise objectionable,
such department or agency shall consult with the Administrator to
determine possible means of abating such noise.
(July 14, 1955, ch. 360, title IV, 402, as added Dec. 31, 1970, Pub.
L. 91-604, 14, 84 Stat. 1709.)
Another section 402 of act July 14, 1955, as added by Pub. L.
101-549, title IV, 401, Nov. 15, 1990, 104 Stat. 2585, is classified
to section 7651a of this title.
Section was formerly classified to section 1858 of this title.
42 USC -- 7642. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There is authorized to be appropriated such amount, not to exceed
$30,000,000, as may be necessary for the purposes of this subchapter.
(July 14, 1955, ch. 360, title IV, 403, as added Dec. 31, 1970, Pub.
L. 91-604, 14, 84 Stat. 1710.)
Another section 403 of act July 14, 1955, as added by Pub. L.
101-549, title IV, 401, Nov. 15, 1990, 104 Stat. 2589, is classified
to section 7651b of this title.
Section was formerly classified to section 1858a of this title.
42 USC -- SUBCHAPTER IV-A -- ACID DEPOSITION CONTROL
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Another title IV of act July 14, 1955, as added by Pub. L. 91-604,
14, Dec. 31, 1970, 84 Stat. 1709, is classified principally to
subchapter IV ( 7641 et seq.) of this chapter.
42 USC -- 7651. Findings and purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Findings
The Congress finds that --
(1) the presence of acidic compounds and their precursors in the
atmosphere and in deposition from the atmosphere represents a threat to
natural resources, ecosystems, materials, visibility, and public health;
(2) the principal sources of the acidic compounds and their
precursors in the atmosphere are emissions of sulfur and nitrogen oxides
from the combustion of fossil fuels;
(3) the problem of acid deposition is of national and international
significance;
(4) strategies and technologies for the control of precursors to acid
deposition exist now that are economically feasible, and improved
methods are expected to become increasingly available over the next
decade;
(5) current and future generations of Americans will be adversely
affected by delaying measures to remedy the problem;
(6) reduction of total atmospheric loading of sulfur dioxide and
nitrogen oxides will enhance protection of the public health and welfare
and the environment; and
(7) control measures to reduce precursor emissions from
steam-electric generating units should be initiated without delay.
(b) Purposes
The purpose of this subchapter is to reduce the adverse effects of
acid deposition through reductions in annual emissions of sulfur dioxide
of ten million tons from 1980 emission levels, and, in combination with
other provisions of this chapter, of nitrogen oxides emissions of
approximately two million tons from 1980 emission levels, in the
forty-eight contiguous States and the District of Columbia. It is the
intent of this subchapter to effectuate such reductions by requiring
compliance by affected sources with prescribed emission limitations by
specified deadlines, which limitations may be met through alternative
methods of compliance provided by an emission allocation and transfer
system. It is also the purpose of this subchapter to encourage energy
conservation, use of renewable and clean alternative technologies, and
pollution prevention as a long-range strategy, consistent with the
provisions of this subchapter, for reducing air pollution and other
adverse impacts of energy production and use.
(July 14, 1955, ch. 360, title IV, 401, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2584.)
Another section 401 of act July 14, 1955, as added by Pub. L.
91-604, 14, Dec. 31, 1970, 84 Stat. 1709, is set out as a Short Title
note under section 7401 of this title.
Section 404 of Pub. L. 101-549 provided that: ''Not later than 36
months after the date of enactment of this Act (Nov. 15, 1990), the
Administrator of the Environmental Protection Agency shall transmit to
the Committee on Environment and Public Works of the Senate and the
Committee on Energy and Commerce of the House of Representatives a
report on the feasibility and effectiveness of an acid deposition
standard or standards to protect sensitive and critically sensitive
aquatic and terrestrial resources. The study required by this section
shall include, but not be limited to, consideration of the following
matters:
''(1) identification of the sensitive and critically sensitive
aquatic and terrestrial resources in the United States and Canada which
may be affected by the deposition of acidic compounds;
''(2) description of the nature and numerical value of a deposition
standard or standards that would be sufficient to protect such
resources;
''(3) description of the use of such standard or standards in other
Nations or by any of the several States in acid deposition control
programs;
''(4) description of the measures that would need to be taken to
integrate such standard or standards with the control program required
by title IV of the Clean Air Act (42 U.S.C. 7651 et seq.);
''(5) description of the state of knowledge with respect to
source-receptor relationships necessary to develop a control program on
such standard or standards and the additional research that is on-going
or would be needed to make such a control program feasible; and
''(6) description of the impediments to implementation of such
control program and the cost-effectiveness of deposition standards
compared to other control strategies including ambient air quality
standards, new source performance standards and the requirements of
title IV of the Clean Air Act.''
Section 406 of Pub. L. 101-549 provided that:
''(a) Report. -- Not later than January 1, 1995 and every 5 years
thereafter, the Administrator of the Environmental Protection Agency
shall transmit to the Congress a report containing an inventory of
national annual sulfur dioxide emissions from industrial sources (as
defined in title IV of the Act (42 U.S.C. 7651 et seq.)), including
units subject to section 405(g)(6) of the Clean Air Act (42 U.S.C.
7651d(g)(6)), for all years for which data are available, as well as the
likely trend in such emissions over the following twenty-year period.
The reports shall also contain estimates of the actual emission
reduction in each year resulting from promulgation of the diesel fuel
desulfurization regulations under section 214 (42 U.S.C. 7548).
''(b) 5.60 Million Ton Cap. -- Whenever the inventory required by
this section indicates that sulfur dioxide emissions from industrial
sources, including units subject to section 405(g)(5) of the Clean Air
Act (42 U.S.C. 7651d(g)(5)), may reasonably be expected to reach levels
greater than 5.60 million tons per year, the Administrator of the
Environmental Protection Agency shall take such actions under the Clean
Air Act (42 U.S.C. 7401 et seq.) as may be appropriate to ensure that
such emissions do not exceed 5.60 million tons per year. Such actions
may include the promulgation of new and revised standards of performance
for new sources, including units subject to section 405(g)(5) of the
Clean Air Act, under section 111(b) of the Clean Air Act (42 U.S.C.
7411(b)), as well as promulgation of standards of performance for
existing sources, including units subject to section 405(g)(5) of the
Clean Air Act, under authority of this section. For an existing source
regulated under this section, 'standard of performance' means a standard
which the Administrator determines is applicable to that source and
which reflects the degree of emission reduction achievable through the
application of the best system of continuous emission reduction which
(taking into consideration the cost of achieving such emission
reduction, and any nonair quality health and environmental impact and
energy requirements) the Administrator determines has been adequately
demonstrated for that category of sources.
''(c) Election. -- Regulations promulgated under section 405(b) of
the Clean Air Act (42 U.S.C. 7651d(b)) shall not prohibit a source from
electing to become an affected unit under section 410 of the Clean Air
Act (42 U.S.C. 7651i).''
Section 407 of Pub. L. 101-549 provided that: ''It is the sense of
the Congress that the Clean Air Act Amendments of 1990 (Pub. L.
101-549, see Tables for classification), through the allowance program,
allocates the costs of achieving the required reductions in emissions of
sulfur dioxide and oxides of nitrogen among sources in the United
States. Broad based taxes and emissions fees that would provide for
payment of the costs of achieving required emissions reductions by any
party or parties other than the sources required to achieve the
reductions are undesirable.''
Section 408 of Pub. L. 101-549 provided that:
''(a) Reports to Congress. -- The Administrator of the Environmental
Protection Agency, in consultation with the Secretary of State, the
Secretary of Energy, and other persons the Administrator deems
appropriate, shall prepare and submit a report to Congress on January 1,
1994, January 1, 1999, and January 1, 2005.
''(b) Contents. -- The report to Congress shall analyze the current
emission levels of sulfur dioxide and nitrogen oxides in each of the
provinces participating in Canada's acid rain control program, the
amount of emission reductions of sulfur dioxide and oxides of nitrogen
achieved by each province, the methods utilized by each province in
making those reductions, the costs to each province and the employment
impacts in each province of making and maintaining those reductions.
''(c) Compliance. -- Beginning on January 1, 1999, the reports shall
also assess the degree to which each province is complying with its
stated emissions cap.''
42 USC -- 7651a. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this subchapter:
(1) The term ''affected source'' means a source that includes one or
more affected units.
(2) The term ''affected unit'' means a unit that is subject to
emission reduction requirements or limitations under this subchapter.
(3) The term ''allowance'' means an authorization, allocated to an
affected unit by the Administrator under this subchapter, to emit,
during or after a specified calendar year, one ton of sulfur dioxide.
(4) The term ''baseline'' means the annual quantity of fossil fuel
consumed by an affected unit, measured in millions of British Thermal
Units (''mmBtu's''), calculated as follows:
(A) For each utility unit that was in commercial operation prior to
January 1, 1985, the baseline shall be the annual average quantity of
mmBtu's consumed in fuel during calendar years 1985, 1986, and 1987, as
recorded by the Department of Energy pursuant to Form 767. For any
utility unit for which such form was not filed, the baseline shall be
the level specified for such unit in the 1985 National Acid
Precipitation Assessment Program (NAPAP) Emissions Inventory, Version 2,
National Utility Reference File (NURF) or in a corrected data base as
established by the Administrator pursuant to paragraph (3). For
nonutility units, the baseline is the NAPAP Emissions Inventory, Version
2. The Administrator, in the Administrator's sole discretion, may
exclude periods during which a unit is shutdown for a continuous period
of four calendar months or longer, and make appropriate adjustments
under this paragraph. Upon petition of the owner or operator of any
unit, the Administrator may make appropriate baseline adjustments for
accidents that caused prolonged outages.
(B) For any other nonutility unit that is not included in the NAPAP
Emissions Inventory, Version 2, or a corrected data base as established
by the Administrator pursuant to paragraph (3), the baseline shall be
the annual average quantity, in mmBtu consumed in fuel by that unit, as
calculated pursuant to a method which the administrator shall prescribe
by regulation to be promulgated not later than eighteen months after
November 15, 1990.
(C) The Administrator shall, upon application or on his own motion,
by December 31, 1991, supplement data needed in support of this
subchapter and correct any factual errors in data from which affected
Phase II units' baselines or actual 1985 emission rates have been
calculated. Corrected data shall be used for purposes of issuing
allowances under the /1/ subchapter. Such corrections shall not be
subject to judicial review, nor shall the failure of the Administrator
to correct an alleged factual error in such reports be subject to
judicial review.
(5) The term ''capacity factor'' means the ratio between the actual
electric output from a unit and the potential electric output from that
unit.
(6) The term ''compliance plan'' means, for purposes of the
requirements of this subchapter, either --
(A) a statement that the source will comply with all applicable
requirements under this subchapter, or
(B) where applicable, a schedule and description of the method or
methods for compliance and certification by the owner or operator that
the source is in compliance with the requirements of this subchapter.
(7) The term ''continuous emission monitoring system'' (CEMS) means
the equipment as required by section 7651k of this title, used to
sample, analyze, measure, and provide on a continuous basis a permanent
record of emissions and flow (expressed in pounds per million British
thermal units (lbs/mmBtu), pounds per hour (lbs/hr) or such other form
as the Administrator may prescribe by regulations under section 7651k of
this title).
(8) The term ''existing unit'' means a unit (including units subject
to section 7411 of this title) that commenced commercial operation
before November 15, 1990. Any unit that commenced commercial operation
before November 15, 1990, which is modified, reconstructed, or repowered
after November 15, 1990, shall continue to be an existing unit for the
purposes of this subchapter. For the purposes of this subchapter,
existing units shall not include simple combustion turbines, or units
which serve a generator with a nameplate capacity of 25MWe or less.
(9) The term ''generator'' means a device that produces electricity
and which is reported as a generating unit pursuant to Department of
Energy Form 860.
(10) The term ''new unit'' means a unit that commences commercial
operation on or after November 15, 1990.
(11) The term ''permitting authority'' means the Administrator, or
the State or local air pollution control agency, with an approved
permitting program under part B /2/ of title III of the Act.
(12) The term ''repowering'' means replacement of an existing
coal-fired boiler with one of the following clean coal technologies:
atmospheric or pressurized fluidized bed combustion, integrated
gasification combined cycle, magnetohydrodynamics, direct and indirect
coal-fired turbines, integrated gasification fuel cells, or as
determined by the Administrator, in consultation with the Secretary of
Energy, a derivative of one or more of these technologies, and any other
technology capable of controlling multiple combustion emissions
simultaneously with improved boiler or generation efficiency and with
significantly greater waste reduction relative to the performance of
technology in widespread commercial use as of November 15, 1990.
Notwithstanding the provisions of section 7651h(a) of this title, for
the purpose of this subchapter, the term ''repowering'' shall also
include any oil and/or gas-fired unit which has been awarded clean coal
technology demonstration funding as of January 1, 1991, by the
Department of Energy.
(13) The term ''reserve'' means any bank of allowances established by
the Administrator under this subchapter.
(14) The term ''State'' means one of the 48 contiguous States and the
District of Columbia.
(15) The term ''unit'' means a fossil fuel-fired combustion device.
(16) The term ''actual 1985 emission rate'', for electric utility
units means the annual sulfur dioxide or nitrogen oxides emission rate
in pounds per million Btu as reported in the NAPAP Emissions Inventory,
Version 2, National Utility Reference File. For nonutility units, the
term ''actual 1985 emission rate'' means the annual sulfur dioxide or
nitrogen oxides emission rate in pounds per million Btu as reported in
the NAPAP Emission Inventory, Version 2.
(17)(A) The term ''utility unit'' means --
(i) a unit that serves a generator in any State that produces
electricity for sale, or
(ii) a unit that, during 1985, served a generator in any State that
produced electricity for sale.
(B) Notwithstanding subparagraph (A), a unit described in
subparagraph (A) that --
(i) was in commercial operation during 1985, but
(ii) did not, during 1985, serve a generator in any State that
produced electricity for sale shall not be a utility unit for purposes
of this subchapter.
(C) A unit that cogenerates steam and electricity is not a ''utility
unit'' for purposes of this subchapter unless the unit is constructed
for the purpose of supplying, or commences construction after November
15, 1990, and supplies, more than one-third of its potential electric
output capacity and more than 25 megawatts electrical output to any
utility power distribution system for sale.
(18) The term ''allowable 1985 emissions rate'' means a federally
enforceable emissions limitation for sulfur dioxide or oxides of
nitrogen, applicable to the unit in 1985 or the limitation applicable in
such other subsequent year as determined by the Administrator if such a
limitation for 1985 does not exist. Where the emissions limitation for
a unit is not expressed in pounds of emissions per million Btu, or the
averaging period of that emissions limitation is not expressed on an
annual basis, the Administrator shall calculate the annual equivalent of
that emissions limitation in pounds per million Btu to establish the
allowable 1985 emissions rate.
(19) The term ''qualifying phase I technology'' means a technological
system of continuous emission reduction which achieves a 90 percent
reduction in emissions of sulfur dioxide from the emissions that would
have resulted from the use of fuels which were not subject to treatment
prior to combustion.
(20) The term ''alternative method of compliance'' means a method of
compliance in accordance with one or more of the following authorities:
(A) a substitution plan submitted and approved in accordance with
subsections /3/ 7651c(b) and (c) of this title;
(B) a Phase I extension plan approved by the Administrator under
section 7651c(d) of this title, using qualifying phase I technology as
determined by the Administrator in accordance with that section; or
(C) repowering with a qualifying clean coal technology under section
7651h of this title.
(21) The term ''commenced'' as applied to construction of any new
electric utility unit means that an owner or operator has undertaken a
continuous program of construction or that an owner or operator has
entered into a contractual obligation to undertake and complete, within
a reasonable time, a continuous program of construction.
(22) The term ''commenced commercial operation'' means to have begun
to generate electricity for sale.
(23) The term ''construction'' means fabrication, erection, or
installation of an affected unit.
(24) The term ''industrial source'' means a unit that does not serve
a generator that produces electricity, a ''nonutility unit'' as defined
in this section, or a process source as defined in section 7651i(e) /4/
of this title.
(25) The term ''nonutility unit'' means a unit other than a utility
unit.
(26) The term ''designated representative'' means a responsible
person or official authorized by the owner or operator of a unit to
represent the owner or operator in matters pertaining to the holding,
transfer, or disposition of allowances allocated to a unit, and the
submission of and compliance with permits, permit applications, and
compliance plans for the unit.
(27) The term ''life-of-the-unit, firm power contractual
arrangement'' means a unit participation power sales agreement under
which a utility or industrial customer reserves, or is entitled to
receive, a specified amount or percentage of capacity and associated
energy generated by a specified generating unit (or units) and pays its
proportional amount of such unit's total costs, pursuant to a contract
either --
(A) for the life of the unit;
(B) for a cumulative term of no less than 30 years, including
contracts that permit an election for early termination; or
(C) for a period equal to or greater than 25 years or 70 percent of
the economic useful life of the unit determined as of the time the unit
was built, with option rights to purchase or re-lease some portion of
the capacity and associated energy generated by the unit (or units) at
the end of the period.
(28) The term ''basic Phase II allowance allocations'' means:
(A) For calendar years 2000 through 2009 inclusive, allocations of
allowances made by the Administrator pursuant to section 7651b of this
title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5);
(d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5);
(h)(1); (i) and (j) of section 7651d of this title.
(B) For each calendar year beginning in 2010, allocations of
allowances made by the Administrator pursuant to section 7651b of this
title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5);
(d)(1), (2), (4) and (5); (e); (f); (g)(1), (2), (3), (4), and (5);
(h)(1) and (3); (i) and (j) of section 7651d of this title.
(29) The term ''Phase II bonus allowance allocations'' means, for
calendar year 2000 through 2009, inclusive, and only for such years,
allocations made by the Administrator pursuant to section 7651b of this
title, subsections (a)(2), (b)(2), (c)(4), (d)(3) (except as otherwise
provided therein), and (h)(2) of section 7651d of this title, and
section 7651e of this title.
(July 14, 1955, ch. 360, title IV, 402, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2585.)
Part B of title III of the Act, referred to in par. (11), means
title III of the Clean Air Act, act July 14, 1955, ch. 360, as added,
which is classified to subchapter III of this chapter, but title III
does not contain parts. For provisions of the Clean Air Act relating to
permits, see subchapter V ( 7661 et seq.) of this chapter.
Another section 402 of act July 14, 1955, as added by Pub. L.
91-604, 14, Dec. 31, 1970, 84 Stat. 1709, is classified to section
7641 of this title.
/1/ So in original. Probably should be ''this''.
/2/ See References in Text note below.
/3/ So in original. Probably should be ''section''.
/4/ So in original. Probably should be section ''7651i(d)''.
42 USC -- 7651b. Sulfur dioxide allowance program for existing and new
units
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Allocations of annual allowances for existing and new units
(1) /1/ For the emission limitation programs under this subchapter,
the Administrator shall allocate annual allowances for the unit, to be
held or distributed by the designated representative of the owner or
operator of each affected unit at an affected source in accordance with
this subchapter, in an amount equal to the annual tonnage emission
limitation calculated under section 7651c, 7651d, 7651e, 7651h, or 7651i
of this title except as otherwise specifically provided elsewhere in
this subchapter. Except as provided in sections 7651d(a)(2),
7651d(a)(3), 7651h and 7651i of this title, beginning January 1, 2000,
the Administrator shall not allocate annual allowances to emit sulfur
dioxide pursuant to section 7651d of this title in such an amount as
would result in total annual emissions of sulfur dioxide from utility
units in excess of 8.90 million tons except that the Administrator shall
not take into account unused allowances carried forward by owners and
operators of affected units or by other persons holding such allowances,
following the year for which they were allocated. If necessary to
meeting the restrictions imposed in the preceding sentence, the
Administrator shall reduce, pro rata, the basic Phase II allowance
allocations for each unit subject to the requirements of section 7651d
of this title. Subject to the provisions of section 7651o of this
title, the Administrator shall allocate allowances for each affected
unit at an affected source annually, as provided in paragraphs (2) and
(3) /1/ and section 7651g of this title. Except as provided in sections
7651h and 7651i of this title, the removal of an existing affected unit
or source from commercial operation at any time after November 15, 1990
(whether before or after January 1, 1995, or January 1, 2000) shall not
terminate or otherwise affect the allocation of allowances pursuant to
section 7651c or 7651d of this title to which the unit is entitled.
Allowances shall be allocated by the Administrator without cost to the
recipient, except for allowances sold by the Administrator pursuant to
section 7651o of this title. Not later than December 31, 1991, the
Administrator shall publish a proposed list of the basic Phase II
allowance allocations, the Phase II bonus allowance allocations and, if
applicable, allocations pursuant to section 7651d(a)(3) of this title
for each unit subject to the emissions limitation requirements of
section 7651d of this title for the year 2000 and the year 2010. After
notice and opportunity for public comment, but not later than December
31, 1992, the Administrator shall publish a final list of such
allocations, subject to the provisions of section 7651d(a)(2) of this
title. Any owner or operator of an existing unit subject to the
requirements of section 7651d(b) or (c) of this title who is considering
applying for an extension of the emission limitation requirement
compliance deadline for that unit from January 1, 2000, until not later
than December 31, 2000, pursuant to section 7651h of this title, shall
notify the Administrator no later than March 31, 1991. Such
notification shall be used as the basis for estimating the basic Phase
II allowances under this subsection. Prior to June 1, 1998, the
Administrator shall publish a revised final statement of allowance
allocations, subject to the provisions of section 7651d(a)(2) of this
title and taking into account the effect of any compliance date
extensions granted pursuant to section 7651h of this title on such
allocations. Any person who may make an election concerning the amount
of allowances to be allocated to a unit or units shall make such
election and so inform the Administrator not later than March 31, 1991,
in the case of an election under section 7651d of this title (or June
30, 1991, in the case of an election under section 7651e of this title).
If such person fails to make such election, the Administrator shall set
forth for each unit owned or operated by such person, the amount of
allowances reflecting the election that would, in the judgment of the
Administrator, provide the greatest benefit for the owner or operator of
the unit. If such person is a Governor who may make an election under
section 7651e of this title and the Governor fails to make an election,
the Administrator shall set forth for each unit in the State the amount
of allowances reflecting the election that would, in the judgment of the
Administrator, provide the greatest benefit for units in the State.
(b) Allowance transfer system
Allowances allocated under this subchapter may be transferred among
designated representatives of the owners or operators of affected
sources under this subchapter and any other person who holds such
allowances, as provided by the allowance system regulations to be
promulgated by the Administrator not later than eighteen months after
November 15, 1990. Such regulations shall establish the allowance
system prescribed under this section, including, but not limited to,
requirements for the allocation, transfer, and use of allowances under
this subchapter. Such regulations shall prohibit the use of any
allowance prior to the calendar year for which the allowance was
allocated, and shall provide, consistent with the purposes of this
subchapter, for the identification of unused allowances, and for such
unused allowances to be carried forward and added to allowances
allocated in subsequent years, including allowances allocated to units
subject to Phase I requirements (as described in section 7651c of this
title) which are applied to emissions limitations requirements in Phase
II (as described in section 7651d of this title). Transfers of
allowances shall not be effective until written certification of the
transfer, signed by a responsible official of each party to the
transfer, is received and recorded by the Administrator. Such
regulations shall permit the transfer of allowances prior to the
issuance of such allowances. Recorded pre-allocation transfers shall be
deducted by the Administrator from the number of allowances which would
otherwise be allocated to the transferor, and added to those allowances
allocated to the transferee. Pre-allocation transfers shall not affect
the prohibition contained in this subsection against the use of
allowances prior to the year for which they are allocated.
(c) Interpollutant trading
Not later than January 1, 1994, the Administrator shall furnish to
the Congress a study evaluating the environmental and economic
consequences of amending this subchapter to permit trading sulfur
dioxide allowances for nitrogen oxides allowances.
(d) Allowance tracking system
(1) The Administrator shall promulgate, not later than 18 months
after November 15, 1990, a system for issuing, recording, and tracking
allowances, which shall specify all necessary procedures and
requirements for an orderly and competitive functioning of the allowance
system. All allowance allocations and transfers shall, upon recordation
by the Administrator, be deemed a part of each unit's permit
requirements pursuant to section 7651g of this title, without any
further permit review and revision.
(2) In order to insure electric reliability, such regulations shall
not prohibit or affect temporary increases and decreases in emissions
within utility systems, power pools, or utilities entering into
allowance pool agreements, that result from their operations, including
emergencies and central dispatch, and such temporary emissions increases
and decreases shall not require transfer of allowances among units nor
shall it require recordation. The owners or operators of such units
shall act through a designated representative. Notwithstanding the
preceding sentence, the total tonnage of emissions in any calendar year
(calculated at the end thereof) from all units in such a utility system,
power pool, or allowance pool agreements shall not exceed the total
allowances for such units for the calendar year concerned.
(e) New utility units
After January 1, 2000, it shall be unlawful for a new utility unit to
emit an annual tonnage of sulfur dioxide in excess of the number of
allowances to emit held for the unit by the unit's owner or operator.
Such new utility units shall not be eligible for an allocation of sulfur
dioxide allowances under subsection (a)(1) of this section, unless the
unit is subject to the provisions of subsection (g)(2) or (3) of section
7651d of this title. New utility units may obtain allowances from any
person, in accordance with this subchapter. The owner or operator of
any new utility unit in violation of this subsection shall be liable for
fulfilling the obligations specified in section 7651j of this title.
(f) Nature of allowances
An allowance allocated under this subchapter is a limited
authorization to emit sulfur dioxide in accordance with the provisions
of this subchapter. Such allowance does not constitute a property
right. Nothing in this subchapter or in any other provision of law
shall be construed to limit the authority of the United States to
terminate or limit such authorization. Nothing in this section relating
to allowances shall be construed as affecting the application of, or
compliance with, any other provision of this chapter to an affected unit
or source, including the provisions related to applicable National
Ambient Air Quality Standards and State implementation plans. Nothing
in this section shall be construed as requiring a change of any kind in
any State law regulating electric utility rates and charges or affecting
any State law regarding such State regulation or as limiting State
regulation (including any prudency review) under such a State law.
Nothing in this section shall be construed as modifying the Federal
Power Act (16 U.S.C. 791a et seq.) or as affecting the authority of the
Federal Energy Regulatory Commission under that Act. Nothing in this
subchapter shall be construed to interfere with or impair any program
for competitive bidding for power supply in a State in which such
program is established. Allowances, once allocated to a person by the
Administrator, may be received, held, and temporarily or permanently
transferred in accordance with this subchapter and the regulations of
the Administrator without regard to whether or not a permit is in effect
under subchapter V of this chapter or section 7651g of this title with
respect to the unit for which such allowance was originally allocated
and recorded. Each permit under this subchapter and each permit issued
under subchapter V of this chapter for any affected unit shall provide
that the affected unit may not emit an annual tonnage of sulfur dioxide
in excess of the allowances held for that unit.
(g) Prohibition
It shall be unlawful for any person to hold, use, or transfer any
allowance allocated under this subchapter, except in accordance with
regulations promulgated by the Administrator. It shall be unlawful for
any affected unit to emit sulfur dioxide in excess of the number of
allowances held for that unit for that year by the owner or operator of
the unit. Upon the allocation of allowances under this subchapter, the
prohibition contained in the preceding sentence shall supersede any
other emission limitation applicable under this subchapter to the units
for which such allowances are allocated. Allowances may not be used
prior to the calendar year for which they are allocated. Nothing in
this section or in the allowance system regulations shall relieve the
Administrator of the Administrator's permitting, monitoring and
enforcement obligations under this chapter, nor relieve affected sources
of their requirements and liabilities under this chapter.
(h) Competitive bidding for power supply
Nothing in this subchapter shall be construed to interfere with or
impair any program for competitive bidding for power supply in a State
in which such program is established.
(i) Applicability of antitrust laws
(1) Nothing in this section affects --
(A) the applicability of the antitrust laws to the transfer, use, or
sale of allowances, or
(B) the authority of the Federal Energy Regulatory Commission under
any provision of law respecting unfair methods of competition or
anticompetitive acts or practices.
(2) As used in this section, ''antitrust laws'' means those Acts set
forth in section 12 of title 15.
(j) Public Utility Holding Company Act
The acquisition or disposition of allowances pursuant to this
subchapter including the issuance of securities or the undertaking of
any other financing transaction in connection with such allowances shall
not be subject to the provisions of the Public Utility Holding Company
Act of 1935 (15 U.S.C. 79 et seq.).
(July 14, 1955, ch. 360, title IV, 403, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2589.)
The Federal Power Act, referred to in subsec. (f), is act June 10,
1920, ch. 285, 41 Stat. 1063, as amended, which is classified
generally to chapter 12 ( 791a et seq.) of Title 16, Conservation. For
complete classification of this Act to the Code, see section 791a of
Title 16 and Tables.
The Public Utility Holding Company Act of 1935, referred to in
subsec. (j), is act Aug. 26, 1935, ch. 687, title I, 49 Stat. 838,
as amended, which is classified generally to chapter 2C ( 79 et seq.) of
Title 15, Commerce and Trade. For complete classification of this Act
to the Code, see section 79 of Title 15 and Tables.
Another section 403 of act July 14, 1955, as added by Pub. L.
91-604, 14, Dec. 31, 1970, 84 Stat. 1710, is classified to section
7642 of this title.
Section 402 of title IV of Pub. L. 101-549 provided that:
''(a) Contracts for Hydroelectric Energy. -- Any person who, after
the date of the enactment of the Clean Air Act Amendments of 1990 (Nov.
15, 1990), enters into a contract under which such person receives
hydroelectric energy in return for the provision of electric energy by
such person shall use allowances held by such person as necessary to
satisfy such person's obligations under such contract.
''(b) Federal Power Marketing Administration. -- A Federal Power
Marketing Administration shall not be subject to the provisions and
requirements of this title (enacting this subchapter, amending sections
7410, 7411, and 7479 of this title, and enacting provisions set out as
notes under sections 7403, 7411, and 7651 of this title) with respect to
electric energy generated by hydroelectric facilities and marketed by
such Power Marketing Administration. Any person who sells or provides
electric energy to a Federal Power Marketing Administration shall comply
with the provisions and requirements of this title.''
/1/ So in original. No pars. (2) and (3) have been enacted.
42 USC -- 7651c. Phase I sulfur dioxide requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Emission limitations
(1) After January 1, 1995, each source that includes one or more
affected units listed in table A is an affected source under this
section. After January 1, 1995, it shall be unlawful for any affected
unit (other than an eligible phase I unit under subsection (d)(2) of
this section) to emit sulfur dioxide in excess of the tonnage limitation
stated as a total number of allowances in table A for phase I, unless
(A) the emissions reduction requirements applicable to such unit have
been achieved pursuant to subsection (b) or (d) of this section, or (B)
the owner or operator of such unit holds allowances to emit not less
than the unit's total annual emissions, except that, after January 1,
2000, the emissions limitations established in this section shall be
superseded by those established in section 7651d of this title. The
owner or operator of any unit in violation of this section shall be
fully liable for such violation including, but not limited to, liability
for fulfilling the obligations specified in section 7651j of this title.
(2) Not later than December 31, 1991, the Administrator shall
determine the total tonnage of reductions in the emissions of sulfur
dioxide from all utility units in calendar year 1995 that will occur as
a result of compliance with the emissions limitation requirements of
this section, and shall establish a reserve of allowances equal in
amount to the number of tons determined thereby not to exceed a total of
3.50 million tons. In making such a determination, the Administrator
shall compute for each unit subject to the emissions limitation
requirements of this section the difference between:
(A) the product of its baseline multiplied by the lesser of each
unit's allowable 1985 emissions rate and its actual 1985 emissions rate,
divided by 2,000, and
(B) the product of each unit's baseline multiplied by 2.50 lbs/mmBtu
divided by 2,000,
and sum the computations. The Administrator shall adjust the
foregoing calculation to reflect projected calendar year 1995
utilization of the units subject to the emissions limitations of this
subchapter that the Administrator finds would have occurred in the
absence of the imposition of such requirements. Pursuant to subsection
(d) of this section, the Administrator shall allocate allowances from
the reserve established hereinunder until the earlier of such time as
all such allowances in the reserve are allocated or December 31, 1999.
(3) In addition to allowances allocated pursuant to paragraph (1), in
each calendar year beginning in 1995 and ending in 1999, inclusive, the
Administrator shall allocate for each unit on Table A that is located in
the States of Illinois, Indiana, or Ohio (other than units at Kyger
Creek, Clifty Creek and Joppa Steam), allowances in an amount equal to
200,000 multiplied by the unit's pro rata share of the total number of
allowances allocated for all units on Table A in the 3 States (other
than units at Kyger Creek, Clifty Creek, and Joppa Steam) pursuant to
paragraph (1). Such allowances shall be excluded from the calculation
of the reserve under paragraph (2).
(b) Substitutions
The owner or operator of an affected unit under subsection (a) of
this section may include in its section 7651g of this title permit
application and proposed compliance plan a proposal to reassign, in
whole or in part, the affected unit's sulfur dioxide reduction
requirements to any other unit(s) under the control of such owner or
operator. Such proposal shall specify --
(1) the designation of the substitute unit or units to which any part
of the reduction obligations of subsection (a) of this section shall be
required, in addition to, or in lieu of, any original affected units
designated under such subsection;
(2) the original affected unit's baseline, the actual and allowable
1985 emissions rate for sulfur dioxide, and the authorized annual
allowance allocation stated in table A;
(3) calculation of the annual average tonnage for calendar years
1985, 1986, and 1987, emitted by the substitute unit or units, based on
the baseline for each unit, as defined in section 7651a(d) /1/ of this
title, multiplied by the lesser of the unit's actual or allowable 1985
emissions rate;
(4) the emissions rates and tonnage limitations that would be
applicable to the original and substitute affected units under the
substitution proposal;
(5) documentation, to the satisfaction of the Administrator, that the
reassigned tonnage limits will, in total, achieve the same or greater
emissions reduction than would have been achieved by the original
affected unit and the substitute unit or units without such
substitution; and
(6) such other information as the Administrator may require.
(c) Administrator's action on substitution proposals
(1) The Administrator shall take final action on such substitution
proposal in accordance with section 7651g(c) of this title if the
substitution proposal fulfills the requirements of this subsection. The
Administrator may approve a substitution proposal in whole or in part
and with such modifications or conditions as may be consistent with the
orderly functioning of the allowance system and which will ensure the
emissions reductions contemplated by this subchapter. If a proposal
does not meet the requirements of subsection (b) of this section, the
Administrator shall disapprove it. The owner or operator of a unit
listed in table A shall not substitute another unit or units without the
prior approval of the Administrator.
(2) Upon approval of a substitution proposal, each substitute unit,
and each source with such unit, shall be deemed affected under this
subchapter, and the Administrator shall issue a permit to the original
and substitute affected source and unit in accordance with the approved
substitution plan and section 7651g of this title. The Administrator
shall allocate allowances for the original and substitute affected units
in accordance with the approved substitution proposal pursuant to
section 7651b of this title. It shall be unlawful for any source or
unit that is allocated allowances pursuant to this section to emit
sulfur dioxide in excess of the emissions limitation provided for in the
approved substitution permit and plan unless the owner or operator of
each unit governed by the permit and approved substitution plan holds
allowances to emit not less than the units total annual emissions. The
owner or operator of any original or substitute affected unit operated
in violation of this subsection shall be fully liable for such
violation, including liability for fulfilling the obligations specified
in section 7651j of this title. If a substitution proposal is
disapproved, the Administrator shall allocate allowances to the original
affected unit or units in accordance with subsection (a) of this
section.
(d) Eligible phase I extension units
(1) The owner or operator of any affected unit subject to an
emissions limitation requirement under this section may petition the
Administrator in its permit application under section 7651g of this
title for an extension of 2 years of the deadline for meeting such
requirement, provided that the owner or operator of any such unit holds
allowances to emit not less than the unit's total annual emissions for
each of the 2 years of the period of extension. To qualify for such an
extension, the affected unit must either employ a qualifying phase I
technology, or transfer its phase I emissions reduction obligation to a
unit employing a qualifying phase I technology. Such transfer shall be
accomplished in accordance with a compliance plan, submitted and
approved under section 7651g of this title, that shall govern operations
at all units included in the transfer, and that specifies the emissions
reduction requirements imposed pursuant to this subchapter.
(2) Such extension proposal shall --
(A) specify the unit or units proposed for designation as an eligible
phase I extension unit;
(B) provide a copy of an executed contract, which may be contingent
upon the Administrator approving the proposal, for the design
engineering, and construction of the qualifying phase I technology for
the extension unit, or for the unit or units to which the extension
unit's emission reduction obligation is to be transferred;
(C) specify the unit's or units' baseline, actual 1985 emissions
rate, allowable 1985 emissions rate, and projected utilization for
calendar years 1995 through 1999;
(D) require CEMS on both the eligible phase I extension unit or units
and the transfer unit or units beginning no later than January 1, 1995;
and
(E) specify the emission limitation and number of allowances expected
to be necessary for annual operation after the qualifying phase I
technology has been installed.
(3) The Administrator shall review and take final action on each
extension proposal in order of receipt, consistent with section 7651g of
this title, and for an approved proposal shall designate the unit or
units as an eligible phase I extension unit. The Administrator may
approve an extension proposal in whole or in part, and with such
modifications or conditions as may be necessary, consistent with the
orderly functioning of the allowance system, and to ensure the emissions
reductions contemplated by the /2/ subchapter.
(4) In order to determine the number of proposals eligible for
allocations from the reserve under subsection (a)(2) of this section and
the number of allowances remaining available after each proposal is
acted upon, the Administrator shall reduce the total number of
allowances remaining available in the reserve by the number of
allowances calculated according to subparagraphs (A), (B) and (C) until
either no allowances remain available in the reserve for further
allocation or all approved proposals have been acted upon. If no
allowances remain available in the reserve for further allocation before
all proposals have been acted upon by the Administrator, any pending
proposals shall be disapproved. The Administrator shall calculate
allowances equal to --
(A) the difference between the lesser of the average annual emissions
in calendar years 1988 and 1989 or the projected emissions tonnage for
calendar year 1995 of each eligible phase I extension unit, as
designated under paragraph (3), and the product of the unit's baseline
multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000;
(B) the difference between the lesser of the average annual emissions
in calendar years 1988 and 1989 or the projected emissions tonnage for
calendar year 1996 of each eligible phase I extension unit, as
designated under paragraph (3), and the product of the unit's baseline
multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000; and
(C) the amount by which (i) the product of each unit's baseline
multiplied by an emission rate of 1.20 lbs/mmBtu, divided by 2,000,
exceeds (ii) the tonnage level specified under subparagraph (E) of
paragraph (2) of this subsection multiplied by a factor of 3.
(5) Each eligible Phase I extension unit shall receive allowances
determined under subsection (a)(1) or (c) of this section. In addition,
for calendar year 1995, the Administrator shall allocate to each
eligible Phase I extension unit, from the allowance reserve created
pursuant to subsection (a)(2) of this section, allowances equal to the
difference between the lesser of the average annual emissions in
calendar years 1988 and 1989 or its projected emissions tonnage for
calendar year 1995 and the product of the unit's baseline multiplied by
an emission rate of 2.50 lbs/mmBtu, divided by 2,000. In calendar year
1996, the Administrator shall allocate for each eligible unit, from the
allowance reserve created pursuant to subsection (a)(2) of this section,
allowances equal to the difference between the lesser of the average
annual emissions in calendar years 1988 and 1989 or its projected
emissions tonnage for calendar year 1996 and the product of the unit's
baseline multiplied by an emission rate of 2.50 lbs/mmBtu, divided by
2,000. It shall be unlawful for any source or unit subject to an
approved extension plan under this subsection to emit sulfur dioxide in
excess of the emissions limitations provided for in the permit and
approved extension plan, unless the owner or operator of each unit
governed by the permit and approved plan holds allowances to emit not
less than the unit's total annual emissions.
(6) In addition to allowances specified in paragraph (5), the
Administrator shall allocate for each eligible Phase I extension unit
employing qualifying Phase I technology, for calendar years 1997, 1998,
and 1999, additional allowances, from any remaining allowances in the
reserve created pursuant to subsection (a)(2) of this section, following
the reduction in the reserve provided for in paragraph (4), not to
exceed the amount by which (A) the product of each eligible unit's
baseline times an emission rate of 1.20 lbs/mmBtu, divided by 2,000,
exceeds (B) the tonnage level specified under subparagraph (E) of
paragraph (2) of this subsection.
(7) After January 1, 1997, in addition to any liability under this
chapter, including under section 7651j of this title, if any eligible
phase I extension unit employing qualifying phase I technology or any
transfer unit under this subsection emits sulfur dioxide in excess of
the annual tonnage limitation specified in the extension plan, as
approved in paragraph (3) of this subsection, the Administrator shall,
in the calendar year following such excess, deduct allowances equal to
the amount of such excess from such unit's annual allowance allocation.
(e) Allocation of allowances
(1) In the case of a unit that receives authorization from the
Governor of the State in which such unit is located to make reductions
in the emissions of sulfur dioxide prior to calendar year 1995 and that
is part of a utility system that meets the following requirements: (A)
the total coal-fired generation within the utility system as a
percentage of total system generation decreased by more than 20 percent
between January 1, 1980, and December 31, 1985; and (B) the weighted
capacity factor of all coal-fired units within the utility system
averaged over the period from January 1, 1985, through December 31,
1987, was below 50 percent, the Administrator shall allocate allowances
under this paragraph for the unit pursuant to this subsection. The
Administrator shall allocate allowances for a unit that is an affected
unit pursuant to section 7651d of this title (but is not also an
affected unit under this section) and part of a utility system that
includes 1 or more affected units under section 7651d of this title for
reductions in the emissions of sulfur dioxide made during the period
1995-1999 if the unit meets the requirements of this subsection and the
requirements of the preceding sentence, except that for the purposes of
applying this subsection to any such unit, the prior year concerned as
specified below, shall be any year after January 1, 1995 but prior to
January 1, 2000.
(2) In the case of an affected unit under this section described in
subparagraph (A), the allowances allocated under this subsection for
early reductions in any prior year may not exceed the amount which (A)
the product of the unit's baseline multiplied by the unit's 1985 actual
sulfur dioxide emission rate (in lbs. per mmBtu), divided by 2,000,
exceeds (B) the allowances specified for such unit in Table A. In the
case of an affected unit under section 7651d of this title described in
subparagraph (A), the allowances awarded under this subsection for early
reductions in any prior year may not exceed the amount by which (i) the
product of the quantity of fossil fuel consumed by the unit (in mmBtu)
in the prior year multiplied by the lesser of 2.50 or the most stringent
emission rate (in lbs. per mmBtu) applicable to the unit under the
applicable implementation plan, divided by 2,000, exceeds (ii) the
unit's actual tonnage of sulfur dioxide emission for the prior year
concerned. Allowances allocated under this subsection for units
referred to in subparagraph (A) may be allocated only for emission
reductions achieved as a result of physical changes or changes in the
method of operation made after November 15, 1990, including changes in
the type or quality of fossil fuel consumed.
(3) In no event shall the provisions of this paragraph be interpreted
as an event of force majeur or a commercial impractibility /3/ or in any
other way as a basis for excused nonperformance by a utility system
under a coal sales contract in effect before November 15, 1990.
(f) Energy conservation and renewable energy
(1) Definitions
As used in this subsection:
(A) Qualified energy conservation measure
The term ''qualified energy conservation measure'' means a cost
effective measure, as identified by the Administrator in consultation
with the Secretary of Energy, that increases the efficiency of the use
of electricity provided by an electric utility to its customers.
(B) Qualified renewable energy
The term ''qualified renewable energy'' means energy derived from
biomass, solar, geothermal, or wind as identified by the Administrator
in consultation with the Secretary of Energy.
(C) Electric utility
The term ''electric utility'' means any person, State agency, or
Federal agency, which sells electric energy.
(2) Allowances for emissions avoided through energy conservation and
renewable energy
(A) In general
The regulations under paragraph (4) of this subsection shall provide
that for each ton of sulfur dioxide emissions avoided by an electric
utility, during the applicable period, through the use of qualified
energy conservation measures or qualified renewable energy, the
Administrator shall allocate a single allowance to such electric
utility, on a first-come-first-served basis from the Conservation and
Renewable Energy Reserve established under subsection (g) of this
section, up to a total of 300,000 allowances for allocation from such
Reserve.
(B) Requirements for issuance
The Administrator shall allocate allowances to an electric utility
under this subsection only if all of the following requirements are met:
(i) Such electric utility is paying for the qualified energy
conservation measures or qualified renewable energy directly or through
purchase from another person.
(ii) The emissions of sulfur dioxide avoided through the use of
qualified energy conservation measures or qualified renewable energy are
quantified in accordance with regulations promulgated by the
Administrator under this subsection.
(iii)(I) Such electric utility has adopted and is implementing a
least cost energy conservation and electric power plan which evaluates a
range of resources, including new power supplies, energy conservation,
and renewable energy resources, in order to meet expected future demand
at the lowest system cost.
(II) The qualified energy conservation measures or qualified
renewable energy, or both, are consistent with that plan.
(III) Electric utilities subject to the jurisdiction of a State
regulatory authority must have such plan approved by such authority.
For electric utilities not subject to the jurisdiction of a State
regulatory authority such plan shall be approved by the entity with
rate-making authority for such utility.
(iv) In the case of qualified energy conservation measures undertaken
by a State regulated electric utility, the Secretary of Energy certifies
that the State regulatory authority with jurisdiction over the electric
rates of such electric utility has established rates and charges which
ensure that the net income of such electric utility after implementation
of specific cost effective energy conservation measures is at least as
high as such net income would have been if the energy conservation
measures had not been implemented. Upon the date of any such
certification by the Secretary of Energy, all allowances which, but for
this paragraph, would have been allocated under subparagraph (A) before
such date, shall be allocated to the electric utility. This clause is
not a requirement for qualified renewable energy.
(v) Such utility or any subsidiary of the utility's holding company
owns or operates at least one affected unit.
(C) Period of applicability
Allowances under this subsection shall be allocated only with respect
to kilowatt hours of electric energy saved by qualified energy
conservation measures or generated by qualified renewable energy after
January 1, 1992 and before the earlier of (i) December 31, 2000, or (ii)
the date on which any electric utility steam generating unit owned or
operated by the electric utility to which the allowances are allocated
becomes subject to this subchapter (including those sources that elect
to become affected by this subchapter, pursuant to section 7651i of this
title).
(D) Determination of avoided emissions
(i) Application
In order to receive allowances under this subsection, an electric
utility shall make an application which --
(I) designates the qualified energy conservation measures implemented
and the qualified renewable energy sources used for purposes of avoiding
emissions, /4/
(II) calculates, in accordance with subparagraphs (F) and (G), the
number of tons of emissions avoided by reason of the implementation of
such measures or the use of such renewable energy sources; and
(III) demonstrates that the requirements of subparagraph (B) have
been met.
Such application for allowances by a State-regulated electric
utility shall require approval by the State regulatory authority with
jurisdiction over such electric utility. The authority shall review the
application for accuracy and compliance with this subsection and the
rules under this subsection. Electric utilities whose retail rates are
not subject to the jurisdiction of a State regulatory authority shall
apply directly to the Administrator for such approval.
(E) Avoided emissions from qualified energy conservation measures
For the purposes of this subsection, the emission tonnage deemed
avoided by reason of the implementation of qualified energy conservation
measures for any calendar year shall be a tonnage equal to the product
of multiplying --
(i) the kilowatt hours that would otherwise have been supplied by the
utility during such year in the absence of such qualified energy
conservation measures, by
(ii) 0.004,
and dividing by 2,000.
(F) Avoided emissions from the use of qualified renewable energy
The emissions tonnage deemed avoided by reason of the use of
qualified renewable energy by an electric utility for any calendar year
shall be a tonnage equal to the product of multiplying --
(i) the actual kilowatt hours generated by, or purchased from,
qualified renewable energy, by
(ii) 0.004,
and dividing by 2,000.
(G) Prohibitions
(i) No allowances shall be allocated under this subsection for the
implementation of programs that are exclusively informational or
educational in nature.
(ii) No allowances shall be allocated for energy conservation
measures or renewable energy that were operational before January 1,
1992.
(3) Savings provision
Nothing in this subsection precludes a State or State regulatory
authority from providing additional incentives to utilities to encourage
investment in demand-side resources.
(4) Regulations
Not later than 18 months after November 15, 1990, and in conjunction
with the regulations required to be promulgated under subsections (b)
and (c) of this section, the Administrator shall, in consultation with
the Secretary of Energy, promulgate regulations under this subsection.
Such regulations shall list energy conservation measures and renewable
energy sources which may be treated as qualified energy conservation
measures and qualified renewable energy for purposes of this subsection.
Allowances shall only be allocated if all requirements of this
subsection and the rules promulgated to implement this subsection are
complied with. The Administrator shall review the determinations of
each State regulatory authority under this subsection to encourage
consistency from electric utility to electric utility and from State to
State in accordance with the Administrator's rules. The Administrator
shall publish the findings of this review no less than annually.
(g) Conservation and Renewable Energy Reserve
The Administrator shall establish a Conservation and Renewable Energy
Reserve under this subsection. Beginning on January 1, 1995, the
Administrator may allocate from the Conservation and Renewable Energy
Reserve an amount equal to a total of 300,000 allowances for emissions
of sulfur dioxide pursuant to section 7651b of this title. In order to
provide 300,000 allowances for such reserve, in each year beginning in
calendar year 2000 and until calendar year 2009, inclusive, the
Administrator shall reduce each unit's basic Phase II allowance
allocation on the basis of its pro rata share of 30,000 allowances. If
allowances remain in the reserve after January 2, 2010, the
Administrator shall allocate such allowances for affected units under
section 7651d of this title on a pro rata basis. For purposes of this
subsection, for any unit subject to the emissions limitation
requirements of section 7651d of this title, the term ''pro rata basis''
refers to the ratio which the reductions made in such unit's allowances
in order to establish the reserve under this subsection bears to the
total of such reductions for all such units.
(h) Alternative allowance allocation for units in certain utility
systems with optional baseline
(1) Optional baseline for units in certain systems
In the case of a unit subject to the emissions limitation
requirements of this section which (as of November 15, 1990) --
(A) has an emission rate below 1.0 lbs/mmBtu,
(B) has decreased its sulfur dioxide emissions rate by 60 percent or
greater since 1980, and
(C) is part of a utility system which has a weighted average sulfur
dioxide emissions rate for all fossil fueled-fired units below 1.0
lbs/mmBtu,
at the election of the owner or operator of such unit, the unit's
baseline may be calculated (i) as provided under section 7651a(d) /5/
of this title, or (ii) by utilizing the unit's average annual fuel
consumption at a 60 percent capacity factor. Such election shall be
made no later than March 1, 1991.
(2) Allowance allocation
Whenever a unit referred to in paragraph (1) elects to calculate its
baseline as provided in clause (ii) of paragraph (1), the Administrator
shall allocate allowances for the unit pursuant to section 7651b(a)(1)
of this title, this section, and section 7651d of this title (as basic
Phase II allowance allocations) in an amount equal to the baseline
selected multiplied by the lower of the average annual emission rate for
such unit in 1989, or 1.0 lbs./mmBtu. Such allowance allocation shall be
in lieu of any allocation of allowances under this section and section
7651d of this title.
(July 14, 1955, ch. 360, title IV, 404, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2592.)
/1/ So in original. Probably should be section ''7651a(4)''.
/2/ So in original. Probably should be ''this''.
/3/ So in original. Probably should be ''impracticability''.
/4/ So in original. The comma probably should be a semicolon.
/5/ So in original. Probably should be section ''7651a(4)''.
42 USC -- 7651d. Phase II sulfur dioxide requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicability
(1) After January 1, 2000, each existing utility unit as provided
below is subject to the limitations or requirements of this section.
Each utility unit subject to an annual sulfur dioxide tonnage emission
limitation under this section is an affected unit under this subchapter.
Each source that includes one or more affected units is an affected
source. In the case of an existing unit that was not in operation
during calendar year 1985, the emission rate for a calendar year after
1985, as determined by the Administrator, shall be used in lieu of the
1985 rate. The owner or operator of any unit operated in violation of
this section shall be fully liable under this chapter for fulfilling the
obligations specified in section 7651j of this title.
(2) In addition to basic Phase II allowance allocations, in each year
beginning in calendar year 2000 and ending in calendar year 2009,
inclusive, the Administrator shall allocate up to 530,000 Phase II bonus
allowances pursuant to subsections (b)(2), (c)(4), (d)(3)(A) and (B),
and (h)(2) of this section and section 7651e of this title. Not later
than June 1, 1998, the Administrator shall calculate, for each unit
granted an extension pursuant to section 7651h of this title the
difference between (A) the number of allowances allocated for the unit
in calendar year 2000, and (B) the product of the unit's baseline
multiplied by 1.20 lbs/mmBtu, divided by 2000, and sum the computations.
In each year, beginning in calendar year 2000 and ending in calendar
year 2009, inclusive, the Administrator shall deduct from each unit's
basic Phase II allowance allocation its pro rata share of 10 percent of
the sum calculated pursuant to the preceding sentence.
(3) In addition to basic Phase II allowance allocations and Phase II
bonus allowance allocations, beginning January 1, 2000, the
Administrator shall allocate for each unit listed on Table A in section
7651c of this title (other than units at Kyger Creek, Clifty Creek, and
Joppa Steam) and located in the States of Illinois, Indiana, Ohio,
Georgia, Alabama, Missouri, Pennsylvania, West Virginia, Kentucky, or
Tennessee allowances in an amount equal to 50,000 multiplied by the
unit's pro rata share of the total number of basic allowances allocated
for all units listed on Table A (other than units at Kyger Creek, Clifty
Creek, and Joppa Steam). Allowances allocated pursuant to this
paragraph shall not be subject to the 8,900,000 ton limitation in
section 7651b(a) of this title.
(b) Units equal to, or above, 75 MWe and 1.20 lbs/mmBtu
(1) Except as otherwise provided in paragraph (3), after January 1,
2000, it shall be unlawful for any existing utility unit that serves a
generator with nameplate capacity equal to, or greater, than 75 MWe and
an actual 1985 emission rate equal to or greater than 1.20 lbs/mmBtu to
exceed an annual sulfur dioxide tonnage emission limitation equal to the
product of the unit's baseline multiplied by an emission rate equal to
1.20 lbs/mmBtu, divided by 2,000, unless the owner or operator of such
unit holds allowances to emit not less than the unit's total annual
emissions.
(2) In addition to allowances allocated pursuant to paragraph (1) and
section 7651b(a)(1) of this title as basic Phase II allowance
allocations, beginning January 1, 2000, and for each calendar year
thereafter until and including 2009, the Administrator shall allocate
annually for each unit subject to the emissions limitation requirements
of paragraph (1) with an actual 1985 emissions rate greater than 1.20
lbs/mmBtu and less than 2.50 lbs/mmBtu and a baseline capacity factor of
less than 60 percent, allowances from the reserve created pursuant to
subsection (a)(2) of this section in an amount equal to 1.20 lbs/mmBtu
multiplied by 50 percent of the difference, on a Btu basis, between the
unit's baseline and the unit's fuel consumption at a 60 percent capacity
factor.
(3) After January 1, 2000, it shall be unlawful for any existing
utility unit with an actual 1985 emissions rate equal to or greater than
1.20 lbs/mmBtu whose annual average fuel consumption during 1985, 1986,
and 1987 on a Btu basis exceeded 90 percent in the form of lignite coal
which is located in a State in which, as of July 1, 1989, no county or
portion of a county was designated nonattainment under section 7407 of
this title for any pollutant subject to the requirements of section 7409
of this title to exceed an annual sulfur dioxide tonnage limitation
equal to the product of the unit's baseline multiplied by the lesser of
the unit's actual 1985 emissions rate or its allowable 1985 emissions
rate, divided by 2,000, unless the owner or operator of such unit holds
allowances to emit not less than the unit's total annual emissions.
(4) After January 1, 2000, the Administrator shall allocate annually
for each unit, subject to the emissions limitation requirements of
paragraph (1), which is located in a State with an installed electrical
generating capacity of more than 30,000,000 kw in 1988 and for which was
issued a prohibition order or a proposed prohibition order (from burning
oil), which unit subsequently converted to coal between January 1, 1980
and December 31, 1985, allowances equal to the difference between (A)
the product of the unit's annual fuel consumption, on a Btu basis, at a
65 percent capacity factor multiplied by the lesser of its actual or
allowable emissions rate during the first full calendar year after
conversion, divided by 2,000, and (B) the number of allowances allocated
for the unit pursuant to paragraph (1): Provided, That the number of
allowances allocated pursuant to this paragraph shall not exceed an
annual total of five thousand. If necessary to meeting the restriction
imposed in the preceding sentence the Administrator shall reduce, pro
rata, the annual allowances allocated for each unit under this
paragraph.
(c) Coal or oil-fired units below 75 MWe and above 1.20 lbs/mmBtu
(1) Except as otherwise provided in paragraph (3), after January 1,
2000, it shall be unlawful for a coal or oil-fired existing utility unit
that serves a generator with nameplate capacity of less than 75 MWe and
an actual 1985 emission rate equal to, or greater than, 1.20 lbs/mmBtu
and which is a unit owned by a utility operating company whose aggregate
nameplate fossil fuel steam-electric capacity is, as of December 31,
1989, equal to, or greater than, 250 MWe to exceed an annual sulfur
dioxide emissions limitation equal to the product of the unit's baseline
multiplied by an emission rate equal to 1.20 lbs/mmBtu, divided by
2,000, unless the owner or operator of such unit holds allowances to
emit not less than the unit's total annual emissions.
(2) After January 1, 2000, it shall be unlawful for a coal or
oil-fired existing utility unit that serves a generator with nameplate
capacity of less than 75 MWe and an actual 1985 emission rate equal to,
or greater than, 1.20 lbs/mmBtu (excluding units subject to section 7411
of this title or to a federally enforceable emissions limitation for
sulfur dioxide equivalent to an annual rate of less than 1.20 lbs/mmBtu)
and which is a unit owned by a utility operating company whose aggregate
nameplate fossil fuel steam-electric capacity is, as of December 31,
1989, less than 250 MWe, to exceed an annual sulfur dioxide tonnage
emissions limitation equal to the product of the unit's baseline
multiplied by the lesser of its actual 1985 emissions rate or its
allowable 1985 emissions rate, divided by 2,000, unless the owner or
operator of such unit holds allowances to emit not less than the unit's
total annual emissions.
(3) After January 1, 2000, it shall be unlawful for any existing
utility unit with a nameplate capacity below 75 MWe and an actual 1985
emissions rate equal to, or greater than, 1.20 lbs/mmBtu which became
operational on or before December 31, 1965, which is owned by a utility
operating company with, as of December 31, 1989, a total fossil fuel
steam-electric generating capacity greater than 250 MWe, and less than
450 MWe which serves fewer than 78,000 electrical customers as of
November 15, 1990, to exceed an annual sulfur dioxide emissions tonnage
limitation equal to the product of its baseline multiplied by the lesser
of its actual or allowable 1985 emission rate, divided by 2,000, unless
the owner or operator holds allowances to emit not less than the units
/1/ total annual emissions. After January 1, 2010, it shall be unlawful
for each unit subject to the emissions limitation requirements of this
paragraph to exceed an annual emissions tonnage limitation equal to the
product of its baseline multiplied by an emissions rate of 1.20
lbs/mmBtu, divided by 2,000, unless the owner or operator holds
allowances to emit not less than the unit's total annual emissions.
(4) In addition to allowances allocated pursuant to paragraph (1) and
section 7651b(a)(1) of this title as basic Phase II allowance
allocations, beginning January 1, 2000, and for each calendar year
thereafter until and including 2009, inclusive, the Administrator shall
allocate annually for each unit subject to the emissions limitation
requirements of paragraph (1) with an actual 1985 emissions rate equal
to, or greater than, 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a
baseline capacity factor of less than 60 percent, allowances from the
reserve created pursuant to subsection (a)(2) of this section in an
amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of the
difference, on a Btu basis, between the unit's baseline and the unit's
fuel consumption at a 60 percent capacity factor.
(5) After January 1, 2000, it shall be unlawful for any existing
utility unit with a nameplate capacity below 75 MWe and an actual 1985
emissions rate equal to, or greater than, 1.20 lbs/mmBtu which is part
of an electric utility system which, as of November 15, 1990, (A) has at
least 20 percent of its fossil-fuel capacity controlled by flue gas
desulfurization devices, (B) has more than 10 percent of its fossil-fuel
capacity consisting of coal-fired units of less than 75 MWe, and (C) has
large units (greater than 400 MWe) all of which have difficult or very
difficult FGD Retrofit Cost Factors (according to the Emissions and the
FGD Retrofit Feasibility at the 200 Top Emitting Generating Stations,
prepared for the United States Environmental Protection Agency on
January 10, 1986) to exceed an annual sulfur dioxide emissions tonnage
limitation equal to the product of its baseline multiplied by an
emissions rate of 2.5 lbs/mmBtu, divided by 2,000, unless the owner or
operator holds allowances to emit not less than the unit's total annual
emissions. After January 1, 2010, it shall be unlawful for each unit
subject to the emissions limitation requirements of this paragraph to
exceed an annual emissions tonnage limitation equal to the product of
its baseline multiplied by an emissions rate of 1.20 lbs/mmBtu, divided
by 2,000, unless the owner or operator holds for use allowances to emit
not less than the unit's total annual emissions.
(d) Coal-fired units below 1.20 lbs/mmBtu
(1) After January 1, 2000, it shall be unlawful for any existing
coal-fired utility unit the lesser of whose actual or allowable 1985
sulfur dioxide emissions rate is less than 0.60 lbs/mmBtu to exceed an
annual sulfur dioxide tonnage emission limitation equal to the product
of the unit's baseline multiplied by (A) the lesser of 0.60 lbs/mmBtu or
the unit's allowable 1985 emissions rate, and (B) a numerical factor of
120 percent, divided by 2,000, unless the owner or operator of such unit
holds allowances to emit not less than the unit's total annual
emissions.
(2) After January 1, 2000, it shall be unlawful for any existing
coal-fired utility unit the lesser of whose actual or allowable 1985
sulfur dioxide emissions rate is equal to, or greater than, 0.60
lbs/mmBtu and less than 1.20 lbs/mmBtu to exceed an annual sulfur
dioxide tonnage emissions limitation equal to the product of the unit's
baseline multiplied by (A) the lesser of its actual 1985 emissions rate
or its allowable 1985 emissions rate, and (B) a numerical factor of 120
percent, divided by 2,000, unless the owner or operator of such unit
holds allowances to emit not less than the unit's total annual
emissions.
(3)(A) In addition to allowances allocated pursuant to paragraph (1)
and section 7651b(a)(1) of this title as basic Phase II allowance
allocations, at the election of the designated representative of the
operating company, beginning January 1, 2000, and for each calendar year
thereafter until and including 2009, the Administrator shall allocate
annually for each unit subject to the emissions limitation requirements
of paragraph (1) allowances from the reserve created pursuant to
subsection (a)(2) of this section in an amount equal to the amount by
which (i) the product of the lesser of 0.60 lbs/mmBtu or the unit's
allowable 1985 emissions rate multiplied by the unit's baseline adjusted
to reflect operation at a 60 percent capacity factor, divided by 2,000,
exceeds (ii) the number of allowances allocated for the unit pursuant to
paragraph (1) and section 7651b(a)(1) of this title as basic Phase II
allowance allocations.
(B) In addition to allowances allocated pursuant to paragraph (2) and
section 7651b(a)(1) of this title as basic Phase II allowance
allocations, at the election of the designated representative of the
operating company, beginning January 1, 2000, and for each calendar year
thereafter until and including 2009, the Administrator shall allocate
annually for each unit subject to the emissions limitation requirements
of paragraph (2) allowances from the reserve created pursuant to
subsection (a)(2) of this section in an amount equal to the amount by
which (i) the product of the lesser of the unit's actual 1985 emissions
rate or its allowable 1985 emissions rate multiplied by the unit's
baseline adjusted to reflect operation at a 60 percent capacity factor,
divided by 2,000, exceeds (ii) the number of allowances allocated for
the unit pursuant to paragraph (2) and section 7651b(a)(1) of this title
as basic Phase II allowance allocations.
(C) An operating company with units subject to the emissions
limitation requirements of this subsection may elect the allocation of
allowances as provided under subparagraphs (A) and (B). Such election
shall apply to the annual allowance allocation for each and every unit
in the operating company subject to the emissions limitation
requirements of this subsection. The Administrator shall allocate
allowances pursuant to subparagraphs (A) and (B) only in accordance with
this subparagraph.
(4) Notwithstanding any other provision of this section, at the
election of the owner or operator, after January 1, 2000, the
Administrator shall allocate in lieu of allocation, pursuant to
paragraph (1), (2), (3), (5), or (6), allowances for a unit subject to
the emissions limitation requirements of this subsection which commenced
commercial operation on or after January 1, 1981 and before December 31,
1985, which was subject to, and in compliance with, section 7411 of this
title in an amount equal to the unit's annual fuel consumption, on a Btu
basis, at a 65 percent capacity factor multiplied by the unit's
allowable 1985 emissions rate, divided by 2,000.
(5) For the purposes of this section, in the case of an oil- and
gas-fired unit which has been awarded a clean coal technology
demonstration grant as of January 1, 1991, by the United States
Department of Energy, beginning January 1, 2000, the Administrator shall
allocate for the unit allowances in an amount equal to the unit's
baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000.
(e) Oil and gas-fired units equal to or greater than 0.60 lbs/mmBtu
and less than 1.20 lbs/mmBtu
After January 1, 2000, it shall be unlawful for any existing oil and
gas-fired utility unit the lesser of whose actual or allowable 1985
sulfur dioxide emission rate is equal to, or greater than, 0.60
lbs/mmBtu, but less than 1.20 lbs/mmBtu to exceed an annual sulfur
dioxide tonnage limitation equal to the product of the unit's baseline
multiplied by (A) the lesser of the unit's allowable 1985 emissions rate
or its actual 1985 emissions rate and (B) a numerical factor of 120
percent divided by 2,000, unless the owner or operator of such unit
holds allowances to emit not less than the unit's total annual
emissions.
(f) Oil and gas-fired units less than 0.60 lbs/mmBtu
(1) After January 1, 2000, it shall be unlawful for any oil and
gas-fired existing utility unit the lesser of whose actual or allowable
1985 emission rate is less than 0.60 lbs/mmBtu and whose average annual
fuel consumption during the period 1980 through 1989 on a Btu basis was
90 percent or less in the form of natural gas to exceed an annual sulfur
dioxide tonnage emissions limitation equal to the product of the unit's
baseline multiplied by (A) the lesser of 0.60 lbs/mmBtu or the unit's
allowable 1985 emissions, and (B) a numerical factor of 120 percent,
divided by 2,000, unless the owner or operator of such unit holds
allowances to emit not less than the unit's total annual emissions.
(2) In addition to allowances allocated pursuant to paragraph (1) as
basic Phase II allowance allocations and section 7651b(a)(1) of this
title, beginning January 1, 2000, the Administrator shall, in the case
of any unit operated by a utility that furnishes electricity, electric
energy, steam, and natural gas within an area consisting of a city and 1
contiguous county, and in the case of any unit owned by a State
authority, the output of which unit is furnished within that same area
consisting of a city and 1 contiguous county, the Administrator shall
allocate for each unit in the utility its pro rata share of 7,000
allowances and for each unit in the State authority its pro rata share
of 2,000 allowances.
(g) Units that commence operation between 1986 and December 31, 1995
(1) After January 1, 2000, it shall be unlawful for any utility unit
that has commenced commercial operation on or after January 1, 1986, but
not later than September 30, 1990 to exceed an annual tonnage emission
limitation equal to the product of the unit's annual fuel consumption,
on a Btu basis, at a 65 percent capacity factor multiplied by the unit's
allowable 1985 sulfur dioxide emission rate (converted, if necessary, to
pounds per mmBtu), divided by 2,000 unless the owner or operator of such
unit holds allowances to emit not less than the unit's total annual
emissions.
(2) After January 1, 2000, the Administrator shall allocate
allowances pursuant to section 7651b of this title to each unit which is
listed in table B of this paragraph in an annual amount equal to the
amount specified in table B.
Unit Allowances
Brandon Shores 8,907 Miller 4 9,197 TNP One 2 4,000 Zimmer 1
18,458 Spruce 1 7,647 Clover 1 2,796 Clover 2 2,796 Twin Oak 2
1,760 Twin Oak 1 9,158 Cross 1 6,401 Malakoff 1 1,759
Notwithstanding any other paragraph of this subsection, for units
subject to this paragraph, the Administrator shall not allocate
allowances pursuant to any other paragraph of this subsection, Provided
/2/ that the owner or operator of a unit listed on Table B may elect an
allocation of allowances under another paragraph of this subsection in
lieu of an allocation under this paragraph.
(3) Beginning January 1, 2000, the Administrator shall allocate to
the owner or operator of any utility unit that commences commercial
operation, or has commenced commercial operation, on or after October 1,
1990, but not later than December 31, 1992 allowances in an amount equal
to the product of the unit's annual fuel consumption, on a Btu basis, at
a 65 percent capacity factor multiplied by the lesser of 0.30 lbs/mmBtu
or the unit's allowable sulfur dioxide emission rate (converted, if
necessary, to pounds per mmBtu), divided by 2,000.
(4) Beginning January 1, 2000, the Administrator shall allocate to
the owner or operator of any utility unit that has commenced
construction before December 31, 1990 and that commences commercial
operation between January 1, 1993 and December 31, 1995, allowances in
an amount equal to the product of the unit's annual fuel consumption, on
a Btu basis, at a 65 percent capacity factor multiplied by the lesser of
0.30 lbs/mmBtu or the unit's allowable sulfur dioxide emission rate
(converted, if necessary, to pounds per mmBtu), divided by 2,000.
(5) After January 1, 2000, it shall be unlawful for any existing
utility unit that has completed conversion from predominantly gas fired
existing operation to coal fired operation between January 1, 1985 and
December 31, 1987, for which there has been allocated a proposed or
final prohibition order pursuant to section 301(b) /3/ of the Powerplant
and Industrial Fuel Use Act of 1978 (42 U.S.C. 8301 et seq, repealed
1987) to exceed an annual sulfur dioxide tonnage emissions limitation
equal to the product of the unit's annual fuel consumption, on a Btu
basis, at a 65 percent capacity factor multiplied by the lesser of 1.20
lbs/mmBtu or the unit's allowable 1987 sulfur dioxide emissions rate,
divided by 2,000, unless the owner or operator of such unit has obtained
allowances equal to its actual emissions.
(6)(A) /4/ Unless the Administrator has approved a designation of
such facility under section 7651i of this title, the provisions of this
subchapter shall not apply to a ''qualifying small power production
facility'' or ''qualifying cogeneration facility'' (within the meaning
of section 796(17)(C) or 796(18)(B) of title 16) or to a ''new
independent power production facility'' as defined in section 7651o of
this title except that clause (iii) /5/ of such definition in section
7651o of this title shall not apply for purposes of this paragraph if,
as of November 15, 1990,
(i) an applicable power sales agreement has been executed;
(ii) the facility is the subject of a State regulatory authority
order requiring an electric utility to enter into a power sales
agreement with, purchase capacity from, or (for purposes of establishing
terms and conditions of the electric utility's purchase of power) enter
into arbitration concerning, the facility;
(iii) an electric utility has issued a letter of intent or similar
instrument committing to purchase power from the facility at a
previously offered or lower price and a power sales agreement is
executed within a reasonable period of time; or
(iv) the facility has been selected as a winning bidder in a utility
competitive bid solicitation.
(h) Oil and gas-fired units less than 10 percent oil consumed
(1) After January 1, 2000, it shall be unlawful for any oil- and
gas-fired utility unit whose average annual fuel consumption during the
period 1980 through 1989 on a Btu basis exceeded 90 percent in the form
of natural gas to exceed an annual sulfur dioxide tonnage limitation
equal to the product of the unit's baseline multiplied by the unit's
actual 1985 emissions rate divided by 2,000 unless the owner or operator
of such unit holds allowances to emit not less than the unit's total
annual emissions.
(2) In addition to allowances allocated pursuant to paragraph (1) and
section 7651b(a)(1) of this title as basic Phase II allowance
allocations, beginning January 1, 2000, and for each calendar year
thereafter until and including 2009, the Administrator shall allocate
annually for each unit subject to the emissions limitation requirements
of paragraph (1) allowances from the reserve created pursuant to
subsection (a)(2) of this section in an amount equal to the unit's
baseline multiplied by 0.050 lbs/mmBtu, divided by 2,000.
(3) In addition to allowances allocated pursuant to paragraph (1) and
section 7651b(a)(1) of this title, beginning January 1, 2010, the
Administrator shall allocate annually for each unit subject to the
emissions limitation requirements of paragraph (1) allowances in an
amount equal to the unit's baseline multiplied by 0.050 lbs/mmBtu,
divided by 2,000.
(i) Units in high growth States
(1) In addition to allowances allocated pursuant to this section and
section 7651b(a)(1) of this title as basic Phase II allowance
allocations, beginning January 1, 2000, the Administrator shall allocate
annually allowances for each unit, subject to an emissions limitation
requirement under this section, and located in a State that --
(A) has experienced a growth in population in excess of 25 percent
between 1980 and 1988 according to State Population and Household
Estimates, With Age, Sex, and Components of Change: 1981-1988 allocated
by the United States Department of Commerce, and
(B) had an installed electrical generating capacity of more than
30,000,000 kw in 1988,
in an amount equal to the difference between (A) the number of
allowances that would be allocated for the unit pursuant to the
emissions limitation requirements of this section applicable to the unit
adjusted to reflect the unit's annual average fuel consumption on a Btu
basis of any three consecutive calendar years between 1980 and 1989
(inclusive) as elected by the owner or operator and (B) the number of
allowances allocated for the unit pursuant to the emissions limitation
requirements of this section: Provided, That the number of allowances
allocated pursuant to this subsection shall not exceed an annual total
of 40,000. If necessary to meeting the 40,000 allowance restriction
imposed under this subsection the Administrator shall reduce, pro rata,
the additional annual allowances allocated to each unit under this
subsection.
(2) Beginning January 1, 2000, in addition to allowances allocated
pursuant to this section and section 7651b(a)(1) of this title as basic
Phase II allowance allocations, the Administrator shall allocate
annually for each unit subject to the emissions limitation requirements
of subsection (b)(1) of this section, (A) the lesser of whose actual or
allowable 1980 emissions rate has declined by 50 percent or more as of
November 15, 1990, (B) whose actual emissions rate is less than 1.2
lbs/mmBtu as of January 1, 2000, (C) which commenced operation after
January 1, 1970, (D) which is owned by a utility company whose combined
commercial and industrial kilowatt-hour sales have increased by more
than 20 percent between calendar year 1980 and November 15, 1990, and
(E) whose company-wide fossil-fuel sulfur dioxide emissions rate has
declined 40 per centum or more from 1980 to 1988, allowances in an
amount equal to the difference between (i) the number of allowances that
would be allocated for the unit pursuant to the emissions limitation
requirements of subsection (b)(1) of this section adjusted to reflect
the unit's annual average fuel consumption on a Btu basis for any three
consecutive years between 1980 and 1989 (inclusive) as elected by the
owner or operator and (ii) the number of allowances allocated for the
unit pursuant to the emissions limitation requirements of subsection
(b)(1) of this section: Provided, That the number of allowances
allocated pursuant to this paragraph shall not exceed an annual total of
5,000. If necessary to meeting the 5,000-allowance restriction imposed
in the last clause of the preceding sentence the Administrator shall
reduce, pro rata, the additional allowances allocated to each unit
pursuant to this paragraph.
(j) Certain municipally owned power plants
Beginning January 1, 2000, in addition to allowances allocated
pursuant to this section and section 7651b(a)(1) of this title as basic
Phase II allowance allocations, the Administrator shall allocate
annually for each existing municipally owned oil and gas-fired utility
unit with nameplate capacity equal to, or less than, 40 MWe, the lesser
of whose actual or allowable 1985 sulfur dioxide emission rate is less
than 1.20 lbs/mmBtu, allowances in an amount equal to the product of the
unit's annual fuel consumption on a Btu basis at a 60 percent capacity
factor multiplied by the lesser of its allowable 1985 emission rate or
its actual 1985 emission rate, divided by 2,000.
(July 14, 1955, ch. 360, title IV, 405, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2605.)
Section 301(b) of the Powerplant and Industrial Fuel Use Act of 1978,
referred to in subsec. (g)(5), is section 301(b) of Pub. L. 95-620,
which is classified to section 8341(b) of this title. A prior section
301(b) of Pub. L. 95-620, title III, Nov. 9, 1978, 92 Stat. 3305,
which was formerly classified to section 8341(b) of this title, was
repealed by Pub. L. 97-35, title X, 1021(a), Aug. 13, 1981, 95 Stat.
614.
/1/ So in original. Probably should be ''unit's''.
/2/ So in original. Probably should not be capitalized.
/3/ See References in Text note below.
/4/ So in original. No subpar. (B) has been enacted.
/5/ So in original. Probably means clause ''(C)''.
42 USC -- 7651e. Allowances for States with emissions rates at or
below 0.80 lbs/mmBtu
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Election of Governor
In addition to basic Phase II allowance allocations, upon the
election of the Governor of any State, with a 1985 state-wide annual
sulfur dioxide emissions rate equal to or less than, 0.80 lbs/mmBtu,
averaged over all fossil fuel-fired utility steam generating units,
beginning January 1, 2000, and for each calendar year thereafter until
and including 2009, the Administrator shall allocate, in lieu of other
Phase II bonus allowance allocations, allowances from the reserve
created pursuant to section 7651d(a)(2) of this title to all such units
in the State in an amount equal to 125,000 multiplied by the unit's pro
rata share of electricity generated in calendar year 1985 at fossil
fuel-fired utility steam units in all States eligible for the election.
(b) Notification of Administrator
Pursuant to section 7651b(a)(1) of this title, each Governor of a
State eligible to make an election under paragraph /1/ (a) shall notify
the Administrator of such election. In the event that the Governor of
any such State fails to notify the Administrator of the Governor's
elections, the Administrator shall allocate allowances pursuant to
section 7651d of this title.
(c) Allowances after January 1, 2010
After January 1, 2010, the Administrator shall allocate allowances to
units subject to the provisions of this section pursuant to section
7651d of this title.
(July 14, 1955, ch. 360, title IV, 406, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2613.)
/1/ So in original. Probably should be ''subsection''.
42 USC -- 7651f. Nitrogen oxides emission reduction program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicability
On the date that a coal-fired utility unit becomes an affected unit
pursuant to sections 7651c, 7651d, /1/ 7651h of this title, or on the
date a unit subject to the provisions of section 7651c(d) or 7651h(b) of
this title, must meet the SO2 reduction requirements, each such unit
shall become an affected unit for purposes of this section and shall be
subject to the emission limitations for nitrogen oxides set forth
herein.
(b) Emission limitations
(1) Not later than eighteen months after November 15, 1990, the
Administrator shall by regulation establish annual allowable emission
limitations for nitrogen oxides for the types of utility boilers listed
below, which limitations shall not exceed the rates listed below:
Provided, That the Administrator may set a rate higher than that listed
for any type of utility boiler if the Administrator finds that the
maximum listed rate for that boiler type cannot be achieved using low
NOx burner technology. The maximum allowable emission rates are as
follows:
(A) for tangentially fired boilers, 0.45 lb/mmBtu;
(B) for dry bottom wall-fired boilers (other than units applying cell
burner technology), 0.50 lb/mmBtu.
After January 1, 1995, it shall be unlawful for any unit that is an
affected unit on that date and is of the type listed in this paragraph
to emit nitrogen oxides in excess of the emission rates set by the
Administrator pursuant to this paragraph.
(2) Not later than January 1, 1997, the Administrator shall, by
regulation, establish allowable emission limitations on a lb/mmBtu,
annual average basis, for nitrogen oxides for the following types of
utility boilers:
(A) wet bottom wall-fired boilers;
(B) cyclones;
(C) units applying cell burner technology;
(D) all other types of utility boilers.
The Administrator shall base such rates on the degree of reduction
achievable through the retrofit application of the best system of
continuous emission reduction, taking into account available technology,
costs and energy and environmental impacts; and which is comparable to
the costs of nitrogen oxides controls set pursuant to subsection (b)(1)
of this section. Not later than January 1, 1997, the Administrator may
revise the applicable emission limitations for tangentially fired and
dry bottom, wall-fired boilers (other than cell burners) to be more
stringent if the Administrator determines that more effective low NOx
burner technology is available: Provided, That, no unit that is an
affected unit pursuant to section 7651c of this title and that is
subject to the requirements of subsection (b)(1) of this section, shall
be subject to the revised emission limitations, if any.
(c) Revised performance standards
(1) Not later than January 1, 1993, the Administrator shall propose
revised standards of performance to section 7411 of this title for
nitrogen oxides emissions from fossil-fuel fired steam generating units,
including both electric utility and nonutility units. Not later than
January 1, 1994, the Administrator shall promulgate such revised
standards of performance. Such revised standards of performance shall
reflect improvements in methods for the reduction of emissions of oxides
of nitrogen.
(d) Alternative emission limitations
The permitting authority shall, upon request of an owner or operator
of a unit subject to this section, authorize an emission limitation less
stringent than the applicable limitation established under subsection
(b)(1) or (b)(2) of this section upon a determination that --
(1) a unit subject to subsection (b)(1) of this section cannot meet
the applicable limitation using low NOx burner technology; or
(2) a unit subject to subsection (b)(2) of this section cannot meet
the applicable rate using the technology on which the Administrator
based the applicable emission limitation.
The permitting authority shall base such determination upon a showing
satisfactory to the permitting authority, in accordance with regulations
established by the Administrator not later than eighteen months after
November 15, 1990, that the owner or operator --
(1) has properly installed appropriate control equipment designed to
meet the applicable emission rate;
(2) has properly operated such equipment for a period of fifteen
months (or such other period of time as the Administrator determines
through the regulations), and provides operating and monitoring data for
such period demonstrating that the unit cannot meet the applicable
emission rate; and
(3) has specified an emission rate that such unit can meet on an
annual average basis.
The permitting authority shall issue an operating permit for the unit
in question, in accordance with section 7651g of this title and part B
/2/ of title III --
(i) that permits the unit during the demonstration period referred to
in subparagraph (2) above, to emit at a rate in excess of the applicable
emission rate;
(ii) at the conclusion of the demonstration period to revise the
operating permit to reflect the alternative emission rate demonstrated
in paragraphs (2) and (3) above.
Units subject to subsection (b)(1) of this section for which an
alternative emission limitation is established shall not be required to
install any additional control technology beyond low NOx burners.
Nothing in this section shall preclude an owner or operator from
installing and operating an alternative NOx control technology capable
of achieving the applicable emission limitation. If the owner or
operator of a unit subject to the emissions limitation requirements of
subsection (b)(1) of this section demonstrates to the satisfaction of
the Administrator that the technology necessary to meet such
requirements is not in adequate supply to enable its installation and
operation at the unit, consistent with system reliability, by January 1,
1995, then the Administrator shall extend the deadline for compliance
for the unit by a period of 15 months. Any owner or operator may
petition the Administrator to make a determination under the previous
sentence. The Administrator shall grant or deny such petition within 3
months of submittal.
(e) Emissions averaging
In lieu of complying with the applicable emission limitations under
subsection (b)(1), (2), or (d) of this section, the owner or operator of
two or more units subject to one or more of the applicable emission
limitations set pursuant to these sections, may petition the permitting
authority for alternative contemporaneous annual emission limitations
for such units that ensure that (1) the actual annual emission rate in
pounds of nitrogen oxides per million Btu averaged over the units in
question is a rate that is less than or equal to (2) the Btu-weighted
average annual emission rate for the same units if they had been
operated, during the same period of time, in compliance with limitations
set in accordance with the applicable emission rates set pursuant to
subsections (b)(1) and (2) of this section.
If the permitting authority determines, in accordance with
regulations issued by the Administrator not later than eighteen months
after November 15, 1990; /3/ that the conditions in the paragraph above
can be met, the permitting authority shall issue operating permits for
such units, in accordance with section 7651g of this title and part B
/2/ of title III, that allow alternative contemporaneous annual emission
limitations. Such emission limitations shall only remain in effect
while both units continue operation under the conditions specified in
their respective operating permits.
(July 14, 1955, ch. 360, title IV, 407, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2613.)
Part B of title III, referred to in subsecs. (d) and (e), means
title III of the Clean Air Act, act July 14, 1955, ch. 360, as added,
which is classified to subchapter III of this chapter, but title III
does not contain parts. For provisions of the Clean Air Act relating to
permits, see subchapter V ( 7661 et seq.) of this chapter.
/1/ So in original. Probably should be followed by ''or''.
/2/ See References in Text note below.
/3/ So in original. The semicolon probably should be a comma.
42 USC -- 7651g. Permits and compliance plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Permit program
The provisions of this subchapter shall be implemented, subject to
section 7651b of this title, by permits issued to units subject to this
subchapter (and enforced) in accordance with the provisions of
subchapter V of this chapter, as modified by this subchapter. Any such
permit issued by the Administrator, or by a State with an approved
permit program, shall prohibit --
(1) annual emissions of sulfur dioxide in excess of the number of
allowances to emit sulfur dioxide the owner or operator, or the
designated representative of the owners or operators, of the unit hold
for the unit,
(2) exceedances of applicable emissions rates,
(3) the use of any allowance prior to the year for which it was
allocated, and
(4) contravention of any other provision of the permit.
Permits issued to implement this subchapter shall be issued for a
period of 5 years, notwithstanding subchapter V of this chapter. No
permit shall be issued that is inconsistent with the requirements of
this subchapter, and subchapter V of this chapter as applicable.
(b) Compliance plan
Each initial permit application shall be accompanied by a compliance
plan for the source to comply with its requirements under this
subchapter. Where an affected source consists of more than one affected
unit, such plan shall cover all such units, and for purposes of section
7661a(c) of this title, such source shall be considered a ''facility''.
Nothing in this section regarding compliance plans or in subchapter V of
this chapter shall be construed as affecting allowances. Except as
provided under subsection (c)(1)(B) of this section, submission of a
statement by the owner or operator, or the designated representative of
the owners and operators, of a unit subject to the emissions limitation
requirements of sections 7651c, 7651d, and 7651f of this title, that the
unit will meet the applicable emissions limitation requirements of such
sections in a timely manner or that, in the case of the emissions
limitation requirements of sections 7651c and 7651d of this title, the
owners and operators will hold allowances to emit not less than the
total annual emissions of the unit, shall be deemed to meet the proposed
and approved compliance planning requirements of this section and
subchapter V of this chapter, except that, for any unit that will meet
the requirements of this subchapter by means of an alternative method of
compliance authorized under section 7651c(b), (c), (d), or (f) of this
title /1/
section 7651f(d) or (e) of this title, section 7651h of this title
and section 7651i of this title, the proposed and approved compliance
plan, permit application and permit shall include, pursuant to
regulations promulgated by the Administrator, for each alternative
method of compliance a comprehensive description of the schedule and
means by which the unit will rely on one or more alternative methods of
compliance in the manner and time authorized under this subchapter.
Recordation by the Administrator of transfers of allowances shall amend
automatically all applicable proposed or approved permit applications,
compliance plans and permits. The Administrator may also require --
(1) for a source, a demonstration of attainment of national ambient
air quality standards, and
(2) from the owner or operator of two or more affected sources, an
integrated compliance plan providing an overall plan for achieving
compliance at the affected sources.
(c) First phase permits
The Administrator shall issue permits to affected sources under
sections 7651c and 7651f of this title.
(1) Permit application and compliance plan
(A) Not later than 27 months after November 15, 1990, the designated
representative of the owners or operators, or the owner and operator, of
each affected source under sections 7651c and 7651f of this title shall
submit a permit application and compliance plan for that source in
accordance with regulations issued by the Administrator under paragraph
(3). The permit application and the compliance plan shall be binding on
the owner or operator or the designated representative of owners and
operators for purposes of this subchapter and section 7651a(a) /2/ of
this title, and shall be enforceable in lieu of a permit until a permit
is issued by the Administrator for the source.
(B) In the case of a compliance plan for an affected source under
sections 7651c and 7651f of this title for which the owner or operator
proposes to meet the requirements of that section by reducing
utilization of the unit as compared with its baseline or by shutting
down the unit, the owner or operator shall include in the proposed
compliance plan a specification of the unit or units that will provide
electrical generation to compensate for the reduced output at the
affected source, or a demonstration that such reduced utilization will
be accomplished through energy conservation or improved unit efficiency.
The unit to be used for such compensating generation, which is not
otherwise an affected unit under sections 7651c and 7651f of this title,
shall be deemed an affected unit under section 7651c of this title,
subject to all of the requirements for such units under this subchapter,
except that allowances shall be allocated to such compensating unit in
the amount of an annual limitation equal to the product of the unit's
baseline multiplied by the lesser of the unit's actual 1985 emissions
rate or its allowable 1985 emissions rate, divided by 2,000.
(2) EPA action on compliance plans
The Administrator shall review each proposed compliance plan to
determine whether it satisfies the requirements of this subchapter, and
shall approve or disapprove such plan within 6 months after receipt of a
complete submission. If a plan is disapproved, it may be resubmitted
for approval with such changes as the Administrator shall require
consistent with the requirements of this subchapter and within such
period as the Administrator prescribes as part of such disapproval.
(3) Regulations; issuance of permits
Not later than 18 months after November 15, 1990, the Administrator
shall promulgate regulations, in accordance with subchapter V of this
chapter, to implement a Federal permit program to issue permits for
affected sources under this subchapter. Following promulgation, the
Administrator shall issue a permit to implement the requirements of
section 7651c of this title and the allowances provided under section
7651b of this title to the owner or operator of each affected source
under section 7651c of this title. Such a permit shall supersede any
permit application and compliance plan submitted under paragraph (1).
(4) Fees
During the years 1995 through 1999 inclusive, no fee shall be
required to be paid under section 7661a(b)(3) of this title or under
section 7410(a)(2)(L) of this title with respect to emissions from any
unit which is an affected unit under section 7651c of this title.
(d) Second phase permits
(1) To provide for permits for (A) new electric utility steam
generating units required under section 7651b(e) of this title to have
allowances, (B) affected units or sources under section 7651d of this
title, and (C) existing units subject to nitrogen oxide emission
reductions under section 7651f of this title, each State in which one or
more such units or sources are located shall submit in accordance with
subchapter V of this chapter, a permit program for approval as provided
by that subchapter. Upon approval of such program, for the units or
sources subject to such approved program the Administrator shall suspend
the issuance of permits as provided in subchapter V of this chapter.
(2) The owner or operator or the designated representative of each
affected source under section 7651d of this title shall submit a permit
application and compliance plan for that source to the permitting
authority, not later than January 1, 1996.
(3) Not later than December 31, 1997, each State with an approved
permit program shall issue permits to the owner or operator, or the
designated representative of the owners and operators, of affected
sources under section 7651d of this title that satisfy the requirements
of subchapter V of this chapter and this subchapter and that submitted
to such State a permit application and compliance plan pursuant to
paragraph (2). In the case of a State without an approved permit
program by July 1, 1996, the Administrator shall, not later than January
1, 1998, issue a permit to the owner or operator or the designated
representative of each such affected source. In the case of affected
sources for which applications and plans are timely received under
paragraph (2), the permit application and the compliance plan, including
amendments thereto, shall be binding on the owner or operator or the
designated representative of the owners or operators and shall be
enforceable as a permit for purposes of this subchapter and subchapter V
of this chapter until a permit is issued by the permitting authority for
the affected source. The provisions of section 558(c) of title 5
(relating to renewals) shall apply to permits issued by a permitting
authority under this subchapter and subchapter V of this chapter.
(4) The permit issued in accordance with this subsection for an
affected source shall provide that the affected units at the affected
source may not emit an annual tonnage of sulfur dioxide in excess of the
number of allowances to emit sulfur dioxide the owner or operator or
designated representative hold for the unit.
(e) New units
The owner or operator of each source that includes a new electric
utility steam generating unit shall submit a permit application and
compliance plan to the permitting authority not later than 24 months
before the later of (1) January 1, 2000, or (2) the date on which the
unit commences operation. The permitting authority shall issue a permit
to the owner or operator, or the designated representative thereof, of
the unit that satisfies the requirements of subchapter V of this chapter
and this subchapter.
(f) Units subject to certain other limits
The owner or operator, or designated representative thereof, of any
unit subject to an emission rate requirement under section 7651f of this
title shall submit a permit application and compliance plan for such
unit to the permitting authority, not later than January 1, 1998. The
permitting authority shall issue a permit to the owner or operator that
satisfies the requirements of subchapter V of this chapter and this
subchapter, including any appropriate monitoring and reporting
requirements.
(g) Amendment of application and compliance plan
At any time after the submission of an application and compliance
plan under this section, the applicant may submit a revised application
and compliance plan, in accordance with the requirements of this
section. In considering any permit application and compliance plan
under this subchapter, the permitting authority shall ensure
coordination with the applicable electric ratemaking authority, in the
case of regulated utilities, and with unregulated public utilities.
(h) Prohibition
(1) It shall be unlawful for an owner or operator, or designated
representative, required to submit a permit application or compliance
plan under this subchapter to fail to submit such application or plan in
accordance with the deadlines specified in this section or to otherwise
fail to comply with regulations implementing this section.
(2) It shall be unlawful for any person to operate any source subject
to this subchapter except in compliance with the terms and requirements
of a permit application and compliance plan (including amendments
thereto) or permit issued by the Administrator or a State with an
approved permit program. For purposes of this subsection, compliance,
as provided in section 7661c(f) of this title, with a permit issued
under subchapter V of this chapter which complies with this subchapter
for sources subject to this subchapter shall be deemed compliance with
this subsection as well as section 7661a(a) of this title.
(3) In order to ensure reliability of electric power, nothing in this
subchapter or subchapter V of this chapter shall be construed as
requiring termination of operations of an electric utility steam
generating unit for failure to have an approved permit or compliance
plan, except that any such unit may be subject to the applicable
enforcement provisions of section 7413 of this title.
(i) Multiple owners
No permit shall be issued under this section to an affected unit
until the designated representative of the owners or operators has filed
a certificate of representation with regard to matters under this
subchapter, including the holding and distribution of allowances and the
proceeds of transactions involving allowances. Where there are multiple
holders of a legal or equitable title to, or a leasehold interest in,
such a unit, or where a utility or industrial customer purchases power
from an affected unit (or units) under life-of-the-unit, firm power
contractual arrangements, the certificate shall state (1) that
allowances and the proceeds of transactions involving allowances will be
deemed to be held or distributed in proportion to each holder's legal,
equitable, leasehold, or contractual reservation or entitlement, or (2)
if such multiple holders have expressly provided for a different
distribution of allowances by contract, that allowances and the proceeds
of transactions involving allowances will be deemed to be held or
distributed in accordance with the contract. A passive lessor, or a
person who has an equitable interest through such lessor, whose rental
payments are not based, either directly or indirectly, upon the revenues
or income from the affected unit shall not be deemed to be a holder of a
legal, equitable, leasehold, or contractual interest for the purpose of
holding or distributing allowances as provided in this subsection,
during either the term of such leasehold or thereafter, unless expressly
provided for in the leasehold agreement. Except as otherwise provided
in this subsection, where all legal or equitable title to or interest in
an affected unit is held by a single person, the certification shall
state that all allowances received by the unit are deemed to be held for
that person.
(July 14, 1955, ch. 360, title IV, 408, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2616.)
/1/ So in original. Probably should be followed by a comma.
/2/ So in original. Section 7651a of this title does not contain
subsections.
42 USC -- 7651h. Repowered sources
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Availability
Not later than December 31, 1997, the owner or operator of an
existing unit subject to the emissions limitation requirements of
section 7651d(b) and (c) of this title may demonstrate to the permitting
authority that one or more units will be repowered with a qualifying
clean coal technology to comply with the requirements under section
7651d of this title. The owner or operator shall, as part of any such
demonstration, provide, not later than January 1, 2000, satisfactory
documentation of a preliminary design and engineering effort for such
repowering and an executed and binding contract for the majority of the
equipment to repower such unit and such other information as the
Administrator may require by regulation. The replacement of an existing
utility unit with a new utility unit using a repowering technology
referred to in section 7651a(2) /1/ of this title which is located at a
different site, shall be treated as repowering of the existing unit for
purposes of this subchapter, if --
(1) the replacement unit is designated by the owner or operator to
replace such existing unit, and
(2) the existing unit is retired from service on or before the date
on which the designated replacement unit enters commercial operation.
(b) Extension
(1) An owner or operator satisfying the requirements of subsection
(a) of this section shall be granted an extension of the emission
limitation requirement compliance date for that unit from January 1,
2000, to December 31, 2003. The extension shall be specified in the
permit issued to the source under section 7651g of this title, together
with any compliance schedule and other requirements necessary to meet
second phase requirements by the extended date. Any unit that is
granted an extension under this section shall not be eligible for a
waiver under section 7411(j) of this title, and shall continue to be
subject to requirements under this subchapter as if it were a unit
subject to section 7651d of this title.
(2) If (A) the owner or operator of an existing unit has been granted
an extension under paragraph (1) in order to repower such unit with a
clean coal unit, and (B) such owner or operator demonstrates to the
satisfaction of the Administrator that the repowering technology to be
utilized by such unit has been properly constructed and tested on such
unit, but nevertheless has been unable to achieve the emission reduction
limitations and is economically or technologically infeasible, such
existing unit may be retrofitted or repowered with equipment or
facilities utilizing another clean coal technology or other available
control technology.
(c) Allowances
(1) For the period of the extension under this section, the
Administrator shall allocate to the owner or operator of the affected
unit, annual allowances for sulfur dioxide equal to the affected unit's
baseline multiplied by the lesser of the unit's federally approved State
Implementation Plan emissions limitation or its actual emission rate for
1995 in lieu of any other allocation. Such allowances may not be
transferred or used by any other source to meet emission requirements
under this subchapter. The source owner or operator shall notify the
Administrator sixty days in advance of the date on which the affected
unit for which the extension has been granted is to be removed from
operation to install the repowering technology.
(2) Effective on that date, the unit shall be subject to the
requirements of section 7651d of this title. Allowances for the year in
which the unit is removed from operation to install the repowering
technology shall be calculated as the product of the unit's baseline
multiplied by 1.20 lbs/mmBtu, divided by 2,000, and prorated
accordingly, and are transferable.
(3) Allowances for such existing utility units for calendar years
after the year the repowering is complete shall be calculated as the
product of the existing unit's baseline multiplied by 1.20 lbs/mmBtu,
divided by 2,000.
(4) Notwithstanding the provisions of section 7651b(a) and (e) of
this title, allowances shall be allocated under this section for a
designated replacement unit which replaces an existing unit (as provided
in the last sentence of subsection (a) of this section) in lieu of any
further allocations of allowances for the existing unit.
(5) For the purpose of meeting the aggregate emissions limitation
requirement set forth in section 7651b(a)(1) of this title, the units
with an extension under this subsection shall be treated in each
calendar year during the extension period as holding allowances
allocated under paragraph (3).
(d) Control requirements
Any unit qualifying for an extension under this section that does not
increase actual hourly emissions for any pollutant regulated under the
/2/ chapter shall not be subject to any standard of performance under
section 7411 of this title. Notwithstanding the provisions of this
subsection, no new unit (1) designated as a replacement for an existing
unit, (2) qualifying for the extension under subsection (b) of this
section, and (3) located at a different site than the existing unit
shall receive an exemption from the requirements imposed under section
7411 of this title.
(e) Expedited permitting
State permitting authorities and, where applicable, the
Administrator, are encouraged to give expedited consideration to permit
applications under parts C and D of subchapter I of this chapter for any
source qualifying for an extension under this section.
(f) Prohibition
It shall be unlawful for the owner or operator of a repowered source
to fail to comply with the requirement of this section, or any
regulations of permit requirements to implement this section, including
the prohibition against emitting sulfur dioxide in excess of allowances
held.
(July 14, 1955, ch. 360, title IV, 409, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2619.)
/1/ So in original. Probably should be section ''7651a(12)''.
/2/ So in original. Probably should be ''this''.
42 USC -- 7651i. Election for additional sources
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicability
The owner or operator of any unit that is not, nor will become, an
affected unit under section 7651b(e), 7651c, or 7651d of this title, or
that is a process source under subsection (d) of this section, that
emits sulfur dioxide, may elect to designate that unit or source to
become an affected unit and to receive allowances under this subchapter.
An election shall be submitted to the Administrator for approval, along
with a permit application and proposed compliance plan in accordance
with section 7651g of this title. The Administrator shall approve a
designation that meets the requirements of this section, and such
designated unit, or source, shall be allocated allowances, and be an
affected unit for purposes of this subchapter.
(b) Establishment of baseline
The baseline for a unit designated under this section shall be
established by the Administrator by regulation, based on fuel
consumption and operating data for the unit for calendar years 1985,
1986, and 1987, or if such data is not available, the Administrator may
prescribe a baseline based on alternative representative data.
(c) Emission limitations
Annual emissions limitations for sulfur dioxide shall be equal to the
product of the baseline multiplied by the lesser of the unit's 1985
actual or allowable emission rate in lbs/mmBtu, or, if the unit did not
operate in 1985, by the lesser of the unit's actual or allowable
emission rate for a calendar year after 1985 (as determined by the
Administrator), divided by 2,000.
(d) Process sources
Not later than 18 months after November 15, 1990, the Administrator
shall establish a program under which the owner or operator of a process
source that emits sulfur dioxide may elect to designate that source as
an affected unit for the purpose of receiving allowances under this
subchapter. The Administrator shall, by regulation, define the sources
that may be designated; specify the emissions limitation; specify the
operating, emission baseline, and other data requirements; prescribe
CEMS or other monitoring requirements; and promulgate permit,
reporting, and any other requirements necessary to implement such a
program.
(e) Allowances and permits
The Administrator shall issue allowances to an affected unit under
this section in an amount equal to the emissions limitation calculated
under subsection (c) or (d) of this section, in accordance with section
7651b of this title. Such allowance may be used in accordance with, and
shall be subject to, the provisions of section 7651b of this title.
Affected sources under this section shall be subject to the requirements
of sections 7651b, 7651g, 7651j, 7651k, 7651l, and 7651m of this title.
(f) Limitation
Any unit designated under this section shall not transfer or bank
allowances produced as a result of reduced utilization or shutdown,
except that, such allowances may be transferred or carried forward for
use in subsequent years to the extent that the reduced utilization or
shutdown results from the replacement of thermal energy from the unit
designated under this section, with thermal energy generated by any
other unit or units subject to the requirements of this subchapter, and
the designated unit's allowances are transferred or carried forward for
use at such other replacement unit or units. In no case may the
Administrator allocate to a source designated under this section
allowances in an amount greater than the emissions resulting from
operation of the source in full compliance with the requirements of this
chapter. No such allowances shall authorize operation of a unit in
violation of any other requirements of this chapter.
(g) Implementation
The Administrator shall issue regulations to implement this section
not later than eighteen months after November 15, 1990.
(h) Small diesel refineries
The Administrator shall issue allowances to owners or operators of
small diesel refineries who produce diesel fuel after October 1, 1993,
meeting the requirements of subsection /1/ 7545(i) of this title.
(1) Allowance period
Allowances may be allocated under this subsection only for the period
from October 1, 1993, through December 31, 1999.
(2) Allowance determination
The number of allowances allocated pursuant to this paragraph shall
equal the annual number of pounds of sulfur dioxide reduction
attributable to desulfurization by a small refinery divided by 2,000.
For the purposes of this calculation, the concentration of sulfur
removed from diesel fuel shall be the difference between 0.274 percent
(by weight) and 0.050 percent (by weight).
(3) Refinery eligibility
As used in this subsection, the term ''small refinery'' shall mean a
refinery or portion of a refinery --
(A) which, as of November 15, 1990, has bona fide crude oil
throughput of less than 18,250,000 barrels per year, as reported to the
Department of Energy, and
(B) which, as of November 15, 1990, is owned or controlled by a
refiner with a total combined bona fide crude oil throughput of less
than 50,187,500 barrels per year, as reported to the Department of
Energy.
(4) Limitation per refinery
The maximum number of allowances that can be annually allocated to a
small refinery pursuant to this subsection is one thousand and five
hundred.
(5) Limitation on total
In any given year, the total number of allowances allocated pursuant
to this subsection shall not exceed thirty-five thousand.
(6) Required certification
The Administrator shall not allocate any allowances pursuant to this
subsection unless the owner or operator of a small diesel refinery shall
have certified, at a time and in a manner prescribed by the
Administrator, that all motor diesel fuel produced by the refinery for
which allowances are claimed, including motor diesel fuel for
off-highway use, shall have met the requirements of subsection /1/
1545(i) of this title.
(July 14, 1955, ch. 360, title IV, 410, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2621.)
/1/ So in original. Probably should be ''section''.
42 USC -- 7651j. Excess emissions penalty
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Excess emissions penalty
The owner or operator of any unit or process source subject to the
requirements of sections /1/ 7651b, 7651c, 7651d, 7651e, 7651f or 7651h
of this title, or designated under section 7651i of this title, that
emits sulfur dioxide or nitrogen oxides for any calendar year in excess
of the unit's emissions limitation requirement or, in the case of sulfur
dioxide, of the allowances the owner or operator holds for use for the
unit for that calendar year shall be liable for the payment of an excess
emissions penalty, except where such emissions were authorized pursuant
to section 7410(f) of this title. That penalty shall be calculated on
the basis of the number of tons emitted in excess of the unit's
emissions limitation requirement or, in the case of sulfur dioxide, of
the allowances the operator holds for use for the unit for that year,
multiplied by $2,000. Any such penalty shall be due and payable without
demand to the Administrator as provided in regulations to be issued by
the Administrator by no later than eighteen months after November 15,
1990. Any such payment shall be deposited in the United States Treasury
pursuant to the Miscellaneous Receipts Act. /2/ Any penalty due and
payable under this section shall not diminish the liability of the
unit's owner or operator for any fine, penalty or assessment against the
unit for the same violation under any other section of this chapter.
(b) Excess emissions offset
The owner or operator of any affected source that emits sulfur
dioxide during any calendar year in excess of the unit's emissions
limitation requirement or of the allowances held for the unit for the
calendar year, shall be liable to offset the excess emissions by an
equal tonnage amount in the following calendar year, or such longer
period as the Administrator may prescribe. The owner or operator of the
source shall, within sixty days after the end of the year in which the
excess emissions occured, /3/ submit to the Administrator, and to the
State in which the source is located, a proposed plan to achieve the
required offsets. Upon approval of the proposed plan by the
Administrator, as submitted, modified or conditioned, the plan shall be
deemed at a condition of the operating permit for the unit without
further review or revision of the permit. The Administrator shall also
deduct allowances equal to the excess tonnage from those allocated for
the source for the calendar year, or succeeding years during which
offsets are required, following the year in which the excess emissions
occurred.
(c) Penalty adjustment
The Administrator shall, by regulation, adjust the penalty specified
in subsection (a) of this section for inflation, based on the Consumer
Price Index, on November 15, 1990, and annually thereafter.
(d) Prohibition
It shall be unlawful for the owner or operator of any source liable
for a penalty and offset under this section to fail (1) to pay the
penalty under subsection (a) of this section, (2) to provide, and
thereafter comply with, a compliance plan as required by subsection (b)
of this section, or (3) to offset excess emissions as required by
subsection (b) of this section.
(e) Savings provision
Nothing in this subchapter shall limit or otherwise affect the
application of section 7413, 7414, 7420, or 7604 of this title except as
otherwise explicitly provided in this subchapter.
(July 14, 1955, ch. 360, title IV, 411, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2623.)
The Miscellaneous Receipts Act, referred to in subsec. (a), is not a
recognized popular name for an act. For provisions relating to deposit
of monies, see section 3302 of Title 31, Money and Finance.
/1/ So in original. Probably should be ''section''.
/2/ See References in Text note below.
/3/ So in original. Probably should be ''occurred,''.
42 USC -- 7651k. Monitoring, reporting, and recordkeeping requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicability
The owner and operator of any source subject to this subchapter shall
be required to install and operate CEMS on each affected unit at the
source, and to quality assure the data for sulfur dioxide, nitrogen
oxides, opacity and volumetric flow at each such unit. The
Administrator shall, by regulations issued not later than eighteen
months after November 15, 1990, specify the requirements for CEMS, for
any alternative monitoring system that is demonstrated as providing
information with the same precision, reliability, accessibility, and
timeliness as that provided by CEMS, and for recordkeeping and reporting
of information from such systems. Such regulations may include
limitations or the use of alternative compliance methods by units
equipped with an alternative monitoring system as may be necessary to
preserve the orderly functioning of the allowance system, and which will
ensure the emissions reductions contemplated by this subchapter. Where
2 or more units utilize a single stack, a separate CEMS shall not be
required for each unit, and for such units the regulations shall require
that the owner or operator collect sufficient information to permit
reliable compliance determinations for each such unit.
(b) First phase requirements
Not later than thirty-six months after November 15, 1990, the owner
or operator of each affected unit under section 7651c of this title,
including, but not limited to, units that become affected units pursuant
to subsections (b) and (c) of this section and eligible units under
subsection (d) of this section, shall install and operate CEMS, quality
assure the data, and keep records and reports in accordance with the
regulations issued under subsection (a) of this section.
(c) Second phase requirements
Not later than January 1, 1995, the owner or operator of each
affected unit that has not previously met the requirements of
subsections (a) and (b) of this section shall install and operate CEMS,
quality assure the data, and keep records and reports in accordance with
the regulations issued under subsection (a) of this section. Upon
commencement of commercial operation of each new utility unit, the unit
shall comply with the requirements of subsection (a) of this section.
(d) Unavailability of emissions data
If CEMS data or data from an alternative monitoring system approved
by the Administrator under subsection (a) of this section is not
available for any affected unit during any period of a calendar year in
which such data is required under this subchapter, and the owner or
operator cannot provide information, satisfactory to the Administrator,
on emissions during that period, the Administrator shall deem the unit
to be operating in an uncontrolled manner during the entire period for
which the data was not available and shall, by regulation which shall be
issued not later than eighteen months after November 15, 1990, prescribe
means to calculate emissions for that period. The owner or operator
shall be liable for excess emissions fees and offsets under section
7651j of this title in accordance with such regulations. Any fee due
and payable under this subsection shall not diminish the liability of
the unit's owner or operator for any fine, penalty, fee or assessment
against the unit for the same violation under any other section of this
chapter.
(e) Prohibition
It shall be unlawful for the owner or operator of any source subject
to this subchapter to operate a source without complying with the
requirements of this section, and any regulations implementing this
section.
(July 14, 1955, ch. 360, title IV, 412, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2624.)
Section 821 of Pub. L. 101-549 provided that:
''(a) Monitoring. -- The Administrator of the Environmental
Protection Agency shall promulgate regulations within 18 months after
the enactment of the Clean Air Act Amendments of 1990 (Nov. 15, 1990) to
require that all affected sources subject to title V of the Clean Air
Act (probably means title IV of the Clean Air Act as added by Pub. L.
101-549, which is classified to section 7651 et seq. of this title)
shall also monitor carbon dioxide emissions according to the same
timetable as in section 511(b) and (c) (probably means section 412(b)
and (c) of the Clean Air Act, which is classified to section 7651k(b)
and (c) of this title). The regulations shall require that such data be
reported to the Administrator. The provisions of section 511(e) of
title V of the Clean Air Act (probably means section 412(e) of title IV
of the Clean Air Act, which is classified to section 7651k(e) of this
title) shall apply for purposes of this section in the same manner and
to the same extent as such provision applies to the monitoring and data
referred to in section 511 (probably means section 412 of the Clean Air
Act, which is classified to section 7651k of this title).
''(b) Public Availability of Carbon Dioxide Information. -- For each
unit required to monitor and provide carbon dioxide data under
subsection (a), the Administrator shall compute the unit's aggregate
annual total carbon dioxide emissions, incorporate such data into a
computer data base, and make such aggregate annual data available to the
public.''
42 USC -- 7651l. General compliance with other provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Except as expressly provided, compliance with the requirements of
this subchapter shall not exempt or exclude the owner or operator of any
source subject to this subchapter from compliance with any other
applicable requirements of this chapter.
(July 14, 1955, ch. 360, title IV, 413, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2625.)
42 USC -- 7651m. Enforcement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
It shall be unlawful for any person subject to this subchapter to
violate any prohibition of, requirement of, or regulation promulgated
pursuant to this subchapter shall be a violation of this chapter. In
addition to the other requirements and prohibitions provided for in this
subchapter, the operation of any affected unit to emit sulfur dioxide in
excess of allowances held for such unit shall be deemed a violation,
with each ton emitted in excess of allowances held constituting a
separate violation.
(July 14, 1955, ch. 360, title IV, 414, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2625.)
42 USC -- 7651n. Clean coal technology regulatory incentives
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) ''Clean coal technology'' defined
For purposes of this section, ''clean coal technology'' means any
technology, including technologies applied at the precombustion,
combustion, or post combustion stage, at a new or existing facility
which will achieve significant reductions in air emissions of sulfur
dioxide or oxides of nitrogen associated with the utilization of coal in
the generation of electricity, process steam, or industrial products,
which is not in widespread use as of November 15, 1990.
(b) Revised regulations for clean coal technology demonstrations
(1) Applicability
This subsection applies to physical or operational changes to
existing facilities for the sole purpose of installation, operation,
cessation, or removal of a temporary or permanent clean coal technology
demonstration project. For the purposes of this section, a clean coal
technology demonstration project shall mean a project using funds
appropriated under the heading ''Department of Energy -- Clean Coal
Technology'', up to a total amount of $2,500,000,000 for commercial
demonstration of clean coal technology, or similar projects funded
through appropriations for the Environmental Protection Agency. The
Federal contribution for a qualifying project shall be at least 20
percent of the total cost of the demonstration project.
(2) Temporary projects
Installation, operation, cessation, or removal of a temporary clean
coal technology demonstration project that is operated for a period of
five years or less, and which complies with the State implementation
plans for the State in which the project is located and other
requirements necessary to attain and maintain the national ambient air
quality standards during and after the project is terminated, shall not
subject such facility to the requirements of section 7411 of this title
or part C or D of subchapter I of this chapter.
(3) Permanent projects
For permanent clean coal technology demonstration projects that
constitute repowering as defined in section 7651a(l) /1/ of this title,
any qualifying project shall not be subject to standards of performance
under section 7411 of this title or to the review and permitting
requirements of part C /2/ for any pollutant the potential emissions of
which will not increase as a result of the demonstration project.
(4) EPA regulations
Not later than 12 months after November 15, 1990, the Administrator
shall promulgate regulations or interpretive rulings to revise
requirements under section 7411 of this title and parts C and D, /2/ as
appropriate, to facilitate projects consistent in /3/ this subsection.
With respect to parts C and D, /2/ such regulations or rulings shall
apply to all areas in which EPA is the permitting authority. In those
instances in which the State is the permitting authority under part C or
D, /2/ any State may adopt and submit to the Administrator for approval
revisions to its implementation plan to apply the regulations or rulings
promulgated under this subsection.
(c) Exemption for reactivation of very clean units
Physical changes or changes in the method of operation associated
with the commencement of commercial operations by a coal-fired utility
unit after a period of discontinued operation shall not subject the unit
to the requirements of section 7411 of this title or part C of the Act
/2/ where the unit (1) has not been in operation for the two-year period
prior to the enactment of the Clean Air Act Amendments of 1990 (November
15, 1990), and the emissions from such unit continue to be carried in
the permitting authority's emissions inventory at the time of enactment,
(2) was equipped prior to shut-down with a continuous system of
emissions control that achieves a removal efficiency for sulfur dioxide
of no less than 85 percent and a removal efficiency for particulates of
no less than 98 percent, (3) is equipped with low-NOx burners prior to
the time of commencement, and (4) is otherwise in compliance with the
requirements of this chapter.
(July 14, 1955, ch. 360, title IV, 415, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2625.)
Parts C and D and part C of the Act, referred to in subsecs. (b)(3),
(4) and (c), probably mean parts C and D of subchapter I of this
chapter.
/1/ So in original. Probably should be section ''7651a(12)''.
/2/ See References in Text note below.
/3/ So in original. Probably should be ''with''.
42 USC -- 7651o. Contingency guarantee, auctions, reserve
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Definitions
For purposes of this section --
(1) The term ''independent power producer'' means any person who owns
or operates, in whole or in part, one or more new independent power
production facilities.
(2) The term ''new independent power production facility'' means a
facility that --
(A) is used for the generation of electric energy, 80 percent or more
of which is sold at wholesale;
(B) is nonrecourse project-financed (as such term is defined by the
Secretary of Energy within 3 months of November 15, 1990);
(C) does not generate electric energy sold to any affiliate (as
defined in section 79b(a)(11) of title 15) of the facility's owner or
operator unless the owner or operator of the facility demonstrates that
it cannot obtain allowances from the affiliate; and
(D) is a new unit required to hold allowances under this subchapter.
(3) The term ''required allowances'' means the allowances required to
operate such unit for so much of the unit's useful life as occurs after
January 1, 2000.
(b) Special reserve of allowances
Within 36 months after November 15, 1990, the Administrator shall
promulgate regulations establishing a Special Allowance Reserve
containing allowances to be sold under this section. For purposes of
establishing the Special Allowance Reserve, the Administrator shall
withhold --
(1) 2.8 percent of the allocation of allowances for each year from
1995 through 1999 inclusive; and
(2) 2.8 percent of the basic Phase II allowance allocation of
allowances for each year beginning in the year 2000
which would (but for this subsection) be issued for each affected
unit at an affected source. The Administrator shall record such
withholding for purposes of transferring the proceeds of the allowance
sales under this subsection. The allowances so withheld shall be
deposited in the Reserve under this section.
(c) Direct sale at $1,500 per ton
(1) Subaccount for direct sales
In accordance with regulations under this section, the Administrator
shall establish a Direct Sale Subaccount in the Special Allowance
Reserve established under this section. The Direct Sale Subaccount
shall contain allowances in the amount of 50,000 tons per year for each
year beginning in the year 2000.
(2) Sales
Allowances in the subaccount shall be offered for direct sale to any
person at the times and in the amounts specified in table 1 at a price
of $1,500 per allowance, adjusted by the Consumer Price Index in the
same manner as provided in paragraph (3). Requests to purchase
allowances from the Direct Sale Subaccount established under paragraph
(1) shall be approved in the order of receipt until no allowances remain
in such subaccount, except that an opportunity to purchase such
allowances shall be provided to the independent power producers referred
to in this subsection before such allowances are offered to any other
person. Each applicant shall be required to pay 50 percent of the total
purchase price of the allowances within 6 months after the approval of
the request to purchase. The remainder shall be paid on or before the
transfer of the allowances.
(3) Entitlement to written guarantee
Any independent power producer that submits an application to the
Administrator establishing that such independent power producer --
(A) proposes to construct a new independent power production facility
for which allowances are required under this subchapter;
(B) will apply for financing to construct such facility after January
1, 1990, and before the date of the first auction under this section;
(C) has submitted to each owner or operator of an affected unit
listed in table A (in section 7651c of this title) a written offer to
purchase the required allowances for $750 per ton; and
(D) has not received (within 180 days after submitting offers to
purchase under subparagraph (C)) an acceptance of the offer to purchase
the required allowances,
shall, within 30 days after submission of such application, be
entitled to receive the Administrator's written guarantee (subject to
the eligibility requirements set forth in paragraph (4)) that such
required allowances will be made available for purchase from the Direct
Sale Subaccount established under this subsection and at a guaranteed
price. The guaranteed price at which such allowances shall be made
available for purchase shall be $1,500 per ton, adjusted by the
percentage, if any, by which the Consumer Price Index (as determined
under section 7661a(b)(3)(B)(v) of this title) for the year in which the
allowance is purchased exceeds the Consumer Price Index for the calendar
year 1990.
(4) Eligibility requirements
The guarantee issued by the Administrator under paragraph (3) shall
be subject to a demonstration by the independent power producer,
satisfactory to the Administrator, that --
(A) the independent power producer has --
(i) made good faith efforts to purchase the required allowances from
the owners or operators of affected units to which allowances will be
allocated, including efforts to purchase at annual auctions under this
section, and from industrial sources that have elected to become
affected units pursuant to section 7651i of this title; and
(ii) such bids and efforts were unsuccessful in obtaining the
required allowances; and
(B) the independent power producer will continue to make good faith
efforts to purchase the required allowances from the owners or operators
of affected units and from industrial sources.
(5) Issuance of guaranteed allowances from Direct Sale Subaccount
under this section
From the allowances available in the Direct Sale Subaccount
established under this subsection, upon payment of the guaranteed price,
the Administrator shall issue to any person exercising the right to
purchase allowances pursuant to a guarantee under this subsection the
allowances covered by such guarantee. Persons to which guarantees under
this subsection have been issued shall have the opportunity to purchase
allowances pursuant to such guarantee from such subaccount before the
allowances in such reserve are offered for sale to any other person.
(6) Proceeds
Notwithstanding section 3302 of title 31 or any other provision of
law, the Administrator shall require that the proceeds of any sale under
this subsection be transferred, within 90 days after the sale, without
charge, on a pro rata basis to the owners or operators of the affected
units from whom the allowances were withheld under subsection (b) of
this section and that any unsold allowances be transferred to the
Subaccount for Auction Sales established under subsection (d) of this
section. No proceeds of any sale under this subsection shall be held by
any officer or employee of the United States or treated for any purpose
as revenue to the United States or to the Administrator.
(7) Termination of subaccount
If the Administrator determines that, during any period of 2
consecutive calendar years, less than 20 percent of the allowances
available in the subaccount for direct sales established under this
subsection have been purchased under this paragraph, the Administrator
shall terminate the subaccount and transfer such allowances to the
Auction Subaccount under subsection (d) of this section.
(d) Auction sales
(1) Subaccount for auctions
The Administrator shall establish an Auction Subaccount in the
Special Reserve established under this section. The Auction Subaccount
shall contain allowances to be sold at auction under this section in the
amount of 150,000 tons per year for each year from 1995 through 1999,
inclusive and 250,000 tons per year for each year beginning in the
calendar year 2000.
(2) Annual auctions
Commencing in 1993 and in each year thereafter, the Administrator
shall conduct auctions at which the allowances referred to in paragraph
(1) shall be offered for sale in accordance with regulations promulgated
by the Administrator, in consultation with the Secretary of the
Treasury, within 12 months of November 15, 1990. The allowances
referred to in paragraph (1) shall be offered for sale at auction in the
amounts specified in table 2. The auction shall be open to any person.
A person wishing to bid for such allowances shall submit (by a date set
by the Administrator) to the Administrator (on a sealed bid schedule
provided by the Administrator) offers to purchase specified numbers of
allowances at specified prices. Such regulations shall specify that the
auctioned allowances shall be allocated and sold on the basis of bid
price, starting with the highest-priced bid and continuing until all
allowances for sale at such auction have been allocated. The
regulations shall not permit that a minimum price be set for the
purchase of withheld allowances. Allowances purchased at the auction
may be used for any purpose and at any time after the auction, subject
to the provisions of this subchapter.
(3) Proceeds
(A) Notwithstanding section 3302 of title 31 or any other provision
of law, within 90 days of receipt, the Administrator shall transfer the
proceeds from the auction under this section, on a pro rata basis, to
the owners or operators of the affected units at an affected source from
whom allowances were withheld under subsection (b) of this section. No
funds transferred from a purchaser to a seller of allowances under this
paragraph shall be held by any officer or employee of the United States
or treated for any purpose as revenue to the United States or the
Administrator.
(B) At the end of each year, any allowances offered for sale but not
sold at the auction shall be returned without charge, on a pro rata
basis, to the owner or operator of the affected units from whose
allocation the allowances were withheld.
(4) Additional auction participants
Any person holding allowances or to whom allowances are allocated by
the Administrator may submit those allowances to the Administrator to be
offered for sale at auction under this subsection. The proceeds of any
such sale shall be transferred at the time of sale by the purchaser to
the person submitting such allowances for sale. The holder of
allowances offered for sale under this paragraph may specify a minimum
sale price. Any person may purchase allowances offered for auction
under this paragraph. Such allowances shall be allocated and sold to
purchasers on the basis of bid price after the auction under paragraph
(2) is complete. No funds transferred from a purchaser to a seller of
allowances under this paragraph shall be held by any officer or employee
of the United States or treated for any purpose as revenue to the United
States or the Administrator.
(5) Recording by EPA
The Administrator shall record and publicly report the nature, prices
and results of each auction under this subsection, including the prices
of successful bids, and shall record the transfers of allowances as a
result of each auction in accordance with the requirements of this
section. The transfer of allowances at such auction shall be recorded
in accordance with the regulations promulgated by the Administrator
under this subchapter.
(e) Changes in sales, auctions, and withholding
Pursuant to rulemaking after public notice and comment the
Administrator may at any time after the year 1998 (in the case of
advance sales or advance auctions) and 2005 (in the case of spot sales
or spot auctions) decrease the number of allowances withheld and sold
under this section.
(f) Termination of auctions
The Administrator may terminate the withholding of allowances and the
auction sales under this section if the Administrator determines that,
during any period of 3 consecutive calendar years after 2002, less than
20 percent of the allowances available in the auction subaccount have
been purchased. Pursuant to regulations under this section, the
Administrator may by delegation or contract provide for the conduct of
sales or auctions under the Administrator's supervision by other
departments or agencies of the United States Government or by
nongovernmental agencies, groups, or organizations.
(July 14, 1955, ch. 360, title IV, 416, as added Nov. 15, 1990, Pub.
L. 101-549, title IV, 401, 104 Stat. 2626.)
42 USC -- SUBCHAPTER V -- PERMITS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7661. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this subchapter --
(1) Affected source
The term ''affected source'' shall have the meaning given such term
in subchapter IV-A of this chapter.
(2) Major source
The term ''major source'' means any stationary source (or any group
of stationary sources located within a contiguous area and under common
control) that is either of the following:
(A) A major source as defined in section 7412 of this title.
(B) A major stationary source as defined in section 7602 of this
title or part D of subchapter I of this chapter.
(3) Schedule of compliance
The term ''schedule of compliance'' means a schedule of remedial
measures, including an enforceable sequence of actions or operations,
leading to compliance with an applicable implementation plan, emission
standard, emission limitation, or emission prohibition.
(4) Permitting authority
The term ''permitting authority'' means the Administrator or the air
pollution control agency authorized by the Administrator to carry out a
permit program under this subchapter.
(July 14, 1955, ch. 360, title V, 501, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2635.)
42 USC -- 7661a. Permit programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Violations
After the effective date of any permit program approved or
promulgated under this subchapter, it shall be unlawful for any person
to violate any requirement of a permit issued under this subchapter, or
to operate an affected source (as provided in subchapter IV-A of this
chapter), a major source, any other source (including an area source)
subject to standards or regulations under section 7411 or 7412 of this
title, any other source required to have a permit under parts /1/ C or D
of subchapter I of this chapter, or any other stationary source in a
category designated (in whole or in part) by regulations promulgated by
the Administrator (after notice and public comment) which shall include
a finding setting forth the basis for such designation, except in
compliance with a permit issued by a permitting authority under this
subchapter. (Nothing in this subsection shall be construed to alter the
applicable requirements of this chapter that a permit be obtained before
construction or modification.) The Administrator may, in the
Administrator's discretion and consistent with the applicable provisions
of this chapter, promulgate regulations to exempt one or more source
categories (in whole or in part) from the requirements of this
subsection if the Administrator finds that compliance with such
requirements is impracticable, infeasible, or unnecessarily burdensome
on such categories, except that the Administrator may not exempt any
major source from such requirements.
(b) Regulations
The Administrator shall promulgate within 12 months after November
15, 1990, regulations establishing the minimum elements of a permit
program to be administered by any air pollution control agency. These
elements shall include each of the following:
(1) Requirements for permit applications, including a standard
application form and criteria for determining in a timely fashion the
completeness of applications.
(2) Monitoring and reporting requirements.
(3)(A) A requirement under State or local law or interstate compact
that the owner or operator of all sources subject to the requirement to
obtain a permit under this subchapter pay an annual fee, or the
equivalent over some other period, sufficient to cover all reasonable
(direct and indirect) costs required to develop and administer the
permit program requirements of this subchapter, including section 7661f
of this title, including the reasonable costs of --
(i) reviewing and acting upon any application for such a permit,
(ii) if the owner or operator receives a permit for such source,
whether before or after November 15, 1990, implementing and enforcing
the terms and conditions of any such permit (not including any court
costs or other costs associated with any enforcement action),
(iii) emissions and ambient monitoring,
(iv) preparing generally applicable regulations, or guidance,
(v) modeling, analyses, and demonstrations, and
(vi) preparing inventories and tracking emissions.
(B) The total amount of fees collected by the permitting authority
shall conform to the following requirements:
(i) The Administrator shall not approve a program as meeting the
requirements of this paragraph unless the State demonstrates that,
except as otherwise provided in subparagraphs (ii) through (v) of this
subparagraph, the program will result in the collection, in the
aggregate, from all sources subject to subparagraph (A), of an amount
not less than $25 per ton of each regulated pollutant, or such other
amount as the Administrator may determine adequately reflects the
reasonable costs of the permit program.
(ii) As used in this subparagraph, the term ''regulated pollutant''
shall mean (I) a volatile organic compound; (II) each pollutant
regulated under section 7411 or 7412 of this title; and (III) each
pollutant for which a national primary ambient air quality standard has
been promulgated (except that carbon monoxide shall be excluded from
this reference).
(iii) In determining the amount under clause (i), the permitting
authority is not required to include any amount of regulated pollutant
emitted by any source in excess of 4,000 tons per year of that regulated
pollutant.
(iv) The requirements of clause (i) shall not apply if the permitting
authority demonstrates that collecting an amount less than the amount
specified under clause (i) will meet the requirements of subparagraph
(A).
(v) The fee calculated under clause (i) shall be increased
(consistent with the need to cover the reasonable costs authorized by
subparagraph (A)) in each year beginning after 1990, by the percentage,
if any, by which the Consumer Price Index for the most recent calendar
year ending before the beginning of such year exceeds the Consumer Price
Index for the calendar year 1989. For purposes of this clause --
(I) the Consumer Price Index for any calendar year is the average of
the Consumer Price Index for all-urban consumers published by the
Department of Labor, as of the close of the 12-month period ending on
August 31 of each calendar year, and
(II) the revision of the Consumer Price Index which is most
consistent with the Consumer Price Index for calendar year 1989 shall be
used.
(C)(i) If the Administrator determines, under subsection (d) of this
section, that the fee provisions of the operating permit program do not
meet the requirements of this paragraph, or if the Administrator makes a
determination, under subsection (i) of this section, that the permitting
authority is not adequately administering or enforcing an approved fee
program, the Administrator may, in addition to taking any other action
authorized under this subchapter, collect reasonable fees from the
sources identified under subparagraph (A). Such fees shall be designed
solely to cover the Administrator's costs of administering the
provisions of the permit program promulgated by the Administrator.
(ii) Any source that fails to pay fees lawfully imposed by the
Administrator under this subparagraph shall pay a penalty of 50 percent
of the fee amount, plus interest on the fee amount computed in
accordance with section 6621(a)(2) of title 26 (relating to computation
of interest on underpayment of Federal taxes).
(iii) Any fees, penalties, and interest collected under this
subparagraph shall be deposited in a special fund in the United States
Treasury for licensing and other services, which thereafter shall be
available for appropriation, to remain available until expended, subject
to appropriation, to carry out the Agency's activities for which the
fees were collected. Any fee required to be collected by a State,
local, or interstate agency under this subsection shall be utilized
solely to cover all reasonable (direct and indirect) costs required to
support the permit program as set forth in subparagraph (A).
(4) Requirements for adequate personnel and funding to administer the
program.
(5) A requirement that the permitting authority have adequate
authority to:
(A) issue permits and assure compliance by all sources required to
have a permit under this subchapter with each applicable standard,
regulation or requirement under this chapter;
(B) issue permits for a fixed term, not to exceed 5 years;
(C) assure that upon issuance or renewal permits incorporate emission
limitations and other requirements in an applicable implementation plan;
(D) terminate, modify, or revoke and reissue permits for cause;
(E) enforce permits, permit fee requirements, and the requirement to
obtain a permit, including authority to recover civil penalties in a
maximum amount of not less than $10,000 per day for each violation, and
provide appropriate criminal penalties; and
(F) assure that no permit will be issued if the Administrator objects
to its issuance in a timely manner under this subchapter.
(6) Adequate, streamlined, and reasonable procedures for
expeditiously determining when applications are complete, for processing
such applications, for public notice, including offering an opportunity
for public comment and a hearing, and for expeditious review of permit
actions, including applications, renewals, or revisions, and including
an opportunity for judicial review in State court of the final permit
action by the applicant, any person who participated in the public
comment process, and any other person who could obtain judicial review
of that action under applicable law.
(7) To ensure against unreasonable delay by the permitting authority,
adequate authority and procedures to provide that a failure of such
permitting authority to act on a permit application or permit renewal
application (in accordance with the time periods specified in section
7661b of this title or, as appropriate, subchapter IV-A of this chapter)
shall be treated as a final permit action solely for purposes of
obtaining judicial review in State court of an action brought by any
person referred to in paragraph (6) to require that action be taken by
the permitting authority on such application without additional delay.
(8) Authority, and reasonable procedures consistent with the need for
expeditious action by the permitting authority on permit applications
and related matters, to make available to the public any permit
application, compliance plan, permit, and monitoring or compliance
report under section 7661b(e) of this title, subject to the provisions
of section 7414(c) of this title.
(9) A requirement that the permitting authority, in the case of
permits with a term of 3 or more years for major sources, shall require
revisions to the permit to incorporate applicable standards and
regulations promulgated under this chapter after the issuance of such
permit. Such revisions shall occur as expeditiously as practicable and
consistent with the procedures established under paragraph (6) but not
later than 18 months after the promulgation of such standards and
regulations. No such revision shall be required if the effective date
of the standards or regulations is a date after the expiration of the
permit term. Such permit revision shall be treated as a permit renewal
if it complies with the requirements of this subchapter regarding
renewals.
(10) Provisions to allow changes within a permitted facility (or one
operating pursuant to section 7661b(d) of this title) without requiring
a permit revision, if the changes are not modifications under any
provision of subchapter I of this chapter and the changes do not exceed
the emissions allowable under the permit (whether expressed therein as a
rate of emissions or in terms of total emissions: /2/ Provided, That
the facility provides the Administrator and the permitting authority
with written notification in advance of the proposed changes which shall
be a minimum of 7 days, unless the permitting authority provides in its
regulations a different timeframe for emergencies.
(c) Single permit
A single permit may be issued for a facility with multiple sources.
(d) Submission and approval
(1) Not later than 3 years after November 15, 1990, the Governor of
each State shall develop and submit to the Administrator a permit
program under State or local law or under an interstate compact meeting
the requirements of this subchapter. In addition, the Governor shall
submit a legal opinion from the attorney general (or the attorney for
those State air pollution control agencies that have independent legal
counsel), or from the chief legal officer of an interstate agency, that
the laws of the State, locality, or the interstate compact provide
adequate authority to carry out the program. Not later than 1 year
after receiving a program, and after notice and opportunity for public
comment, the Administrator shall approve or disapprove such program, in
whole or in part. The Administrator may approve a program to the extent
that the program meets the requirements of this chapter, including the
regulations issued under subsection (b) of this section. If the program
is disapproved, in whole or in part, the Administrator shall notify the
Governor of any revisions or modifications necessary to obtain approval.
The Governor shall revise and resubmit the program for review under
this section within 180 days after receiving notification.
(2)(A) If the Governor does not submit a program as required under
paragraph (1) or if the Administrator disapproves a program submitted by
the Governor under paragraph (1), in whole or in part, the Administrator
may, prior to the expiration of the 18-month period referred to in
subparagraph (B), in the Administrator's discretion, apply any of the
sanctions specified in section 7509(b) of this title.
(B) If the Governor does not submit a program as required under
paragraph (1), or if the Administrator disapproves any such program
submitted by the Governor under paragraph (1), in whole or in part, 18
months after the date required for such submittal or the date of such
disapproval, as the case may be, the Administrator shall apply sanctions
under section 7509(b) of this title in the same manner and subject to
the same deadlines and other conditions as are applicable in the case of
a determination, disapproval, or finding under section 7509(a) of this
title.
(C) The sanctions under section 7509(b)(2) of this title shall not
apply pursuant to this paragraph in any area unless the failure to
submit or the disapproval referred to in subparagraph (A) or (B) relates
to an air pollutant for which such area has been designated a
nonattainment area (as defined in part D of subchapter I of this
chapter).
(3) If a program meeting the requirements of this subchapter has not
been approved in whole for any State, the Administrator shall, 2 years
after the date required for submission of such a program under paragraph
(1), promulgate, administer, and enforce a program under this subchapter
for that State.
(e) Suspension
The Administrator shall suspend the issuance of permits promptly upon
publication of notice of approval of a permit program under this
section, but may, in such notice, retain jurisdiction over permits that
have been federally issued, but for which the administrative or judicial
review process is not complete. The Administrator shall continue to
administer and enforce federally issued permits under this subchapter
until they are replaced by a permit issued by a permitting program.
Nothing in this subsection should be construed to limit the
Administrator's ability to enforce permits issued by a State.
(f) Prohibition
No partial permit program shall be approved unless, at a minimum, it
applies, and ensures compliance with, this subchapter and each of the
following:
(1) All requirements established under subchapter IV-A of this
chapter applicable to ''affected sources''.
(2) All requirements established under section 7412 of this title
applicable to ''major sources'', ''area sources,'' and ''new sources''.
(3) All requirements of subchapter I of this chapter (other than
section 7412 of this title) applicable to sources required to have a
permit under this subchapter.
Approval of a partial program shall not relieve the State of its
obligation to submit a complete program, nor from the application of any
sanctions under this chapter for failure to submit an approvable permit
program.
(g) Interim approval
If a program (including a partial permit program) submitted under
this subchapter substantially meets the requirements of this subchapter,
but is not fully approvable, the Administrator may by rule grant the
program interim approval. In the notice of final rulemaking, the
Administrator shall specify the changes that must be made before the
program can receive full approval. An interim approval under this
subsection shall expire on a date set by the Administrator not later
than 2 years after such approval, and may not be renewed. For the
period of any such interim approval, the provisions of subsection (d)(2)
of this section, and the obligation of the Administrator to promulgate a
program under this subchapter for the State pursuant to subsection
(d)(3) of this section, shall be suspended. Such provisions and such
obligation of the Administrator shall apply after the expiration of such
interim approval.
(h) Effective date
The effective date of a permit program, or partial or interim
program, approved under this subchapter, shall be the effective date of
approval by the Administrator. The effective date of a permit program,
or partial permit program, promulgated by the Administrator shall be the
date of promulgation.
(i) Administration and enforcement
(1) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and enforcing a
program, or portion thereof, in accordance with the requirements of this
subchapter, the Administrator shall provide notice to the State and may,
prior to the expiration of the 18-month period referred to in paragraph
(2), in the Administrator's discretion, apply any of the sanctions
specified in section 7509(b) of this title.
(2) Whenever the Administrator makes a determination that a
permitting authority is not adequately administering and enforcing a
program, or portion thereof, in accordance with the requirements of this
subchapter, 18 months after the date of the notice under paragraph (1),
the Administrator shall apply the sanctions under section 7509(b) of
this title in the same manner and subject to the same deadlines and
other conditions as are applicable in the case of a determination,
disapproval, or finding under section 7509(a) of this title.
(3) The sanctions under section 7509(b)(2) of this title shall not
apply pursuant to this subsection in any area unless the failure to
adequately enforce and administer the program relates to an air
pollutant for which such area has been designated a nonattainment area.
(4) Whenever the Administrator has made a finding under paragraph (1)
with respect to any State, unless the State has corrected such
deficiency within 18 months after the date of such finding, the
Administrator shall, 2 years after the date of such finding, promulgate,
administer, and enforce a program under this subchapter for that State.
Nothing in this paragraph shall be construed to affect the validity of a
program which has been approved under this subchapter or the authority
of any permitting authority acting under such program until such time as
such program is promulgated by the Administrator under this paragraph.
(July 14, 1955, ch. 360, title V, 502, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2635.)
/1/ So in original. Probably should be ''part''.
/2/ So in original. A closing parenthesis probably should precede
the colon.
42 USC -- 7661b. Permit applications
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicable date
Any source specified in section 7661a(a) of this title shall become
subject to a permit program, and required to have a permit, on the later
of the following dates --
(1) the effective date of a permit program or partial or interim
permit program applicable to the source; or
(2) the date such source becomes subject to section 7661a(a) of this
title.
(b) Compliance plan
(1) The regulations required by section 7661a(b) of this title shall
include a requirement that the applicant submit with the permit
application a compliance plan describing how the source will comply with
all applicable requirements under this chapter. The compliance plan
shall include a schedule of compliance, and a schedule under which the
permittee will submit progress reports to the permitting authority no
less frequently than every 6 months.
(2) The regulations shall further require the permittee to
periodically (but no less frequently than annually) certify that the
facility is in compliance with any applicable requirements of the
permit, and to promptly report any deviations from permit requirements
to the permitting authority.
(c) Deadline
Any person required to have a permit shall, not later than 12 months
after the date on which the source becomes subject to a permit program
approved or promulgated under this subchapter, or such earlier date as
the permitting authority may establish, submit to the permitting
authority a compliance plan and an application for a permit signed by a
responsible official, who shall certify the accuracy of the information
submitted. The permitting authority shall approve or disapprove a
completed application (consistent with the procedures established under
this subchapter for consideration of such applications), and shall issue
or deny the permit, within 18 months after the date of receipt thereof,
except that the permitting authority shall establish a phased schedule
for acting on permit applications submitted within the first full year
after the effective date of a permit program (or a partial or interim
program). Any such schedule shall assure that at least one-third of
such permits will be acted on by such authority annually over a period
of not to exceed 3 years after such effective date. Such authority
shall establish reasonable procedures to prioritize such approval or
disapproval actions in the case of applications for construction or
modification under the applicable requirements of this chapter.
(d) Timely and complete applications
Except for sources required to have a permit before construction or
modification under the applicable requirements of this chapter, if an
applicant has submitted a timely and complete application for a permit
required by this subchapter (including renewals), but final action has
not been taken on such application, the source's failure to have a
permit shall not be a violation of this chapter, unless the delay in
final action was due to the failure of the applicant timely to submit
information required or requested to process the application. No source
required to have a permit under this subchapter shall be in violation of
section 7661a(a) of this title before the date on which the source is
required to submit an application under subsection (c) of this section.
(e) Copies; availability
A copy of each permit application, compliance plan (including the
schedule of compliance), emissions or compliance monitoring report,
certification, and each permit issued under this subchapter, shall be
available to the public. If an applicant or permittee is required to
submit information entitled to protection from disclosure under section
7414(c) of this title, the applicant or permittee may submit such
information separately. The requirements of section 7414(c) of this
title shall apply to such information. The contents of a permit shall
not be entitled to protection under section 7414(c) of this title.
(July 14, 1955, ch. 360, title V, 503, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2641.)
42 USC -- 7661c. Permit requirements and conditions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Conditions
Each permit issued under this subchapter shall include enforceable
emission limitations and standards, a schedule of compliance, a
requirement that the permittee submit to the permitting authority, no
less often than every 6 months, the results of any required monitoring,
and such other conditions as are necessary to assure compliance with
applicable requirements of this chapter, including the requirements of
the applicable implementation plan.
(b) Monitoring and analysis
The Administrator may by rule prescribe procedures and methods for
determining compliance and for monitoring and analysis of pollutants
regulated under this chapter, but continuous emissions monitoring need
not be required if alternative methods are available that provide
sufficiently reliable and timely information for determining compliance.
Nothing in this subsection shall be construed to affect any continuous
emissions monitoring requirement of subchapter IV-A of this chapter, or
where required elsewhere in this chapter.
(c) Inspection, entry, monitoring, certification, and reporting
Each permit issued under this subchapter shall set forth inspection,
entry, monitoring, compliance certification, and reporting requirements
to assure compliance with the permit terms and conditions. Such
monitoring and reporting requirements shall conform to any applicable
regulation under subsection (b) of this section. Any report required to
be submitted by a permit issued to a corporation under this subchapter
shall be signed by a responsible corporate official, who shall certify
its accuracy.
(d) General permits
The permitting authority may, after notice and opportunity for public
hearing, issue a general permit covering numerous similar sources. Any
general permit shall comply with all requirements applicable to permits
under this subchapter. No source covered by a general permit shall
thereby be relieved from the obligation to file an application under
section 7661b of this title.
(e) Temporary sources
The permitting authority may issue a single permit authorizing
emissions from similar operations at multiple temporary locations. No
such permit shall be issued unless it includes conditions that will
assure compliance with all the requirements of this chapter at all
authorized locations, including, but not limited to, ambient standards
and compliance with any applicable increment or visibility requirements
under part C of subchapter I of this chapter. Any such permit shall in
addition require the owner or operator to notify the permitting
authority in advance of each change in location. The permitting
authority may require a separate permit fee for operations at each
location.
(f) Permit shield
Compliance with a permit issued in accordance with this subchapter
shall be deemed compliance with section 7661a of this title. Except as
otherwise provided by the Administrator by rule, the permit may also
provide that compliance with the permit shall be deemed compliance with
other applicable provisions of this chapter that relate to the permittee
if --
(1) the permit includes the applicable requirements of such
provisions, or
(2) the permitting authority in acting on the permit application
makes a determination relating to the permittee that such other
provisions (which shall be referred to in such determination) are not
applicable and the permit includes the determination or a concise
summary thereof.
Nothing in the preceding sentence shall alter or affect the
provisions of section 7603 of this title, including the authority of the
Administrator under that section.
(July 14, 1955, ch. 360, title V, 504, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2642.)
42 USC -- 7661d. Notification to Administrator and contiguous States
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Transmission and notice
(1) Each permitting authority --
(A) shall transmit to the Administrator a copy of each permit
application (and any application for a permit modification or renewal)
or such portion thereof, including any compliance plan, as the
Administrator may require to effectively review the application and
otherwise to carry out the Administrator's responsibilities under this
chapter, and
(B) shall provide to the Administrator a copy of each permit proposed
to be issued and issued as a final permit.
(2) The permitting authority shall notify all States --
(A) whose air quality may be affected and that are contiguous to the
State in which the emission originates, or
(B) that are within 50 miles of the source,
of each permit application or proposed permit forwarded to the
Administrator under this section, and shall provide an opportunity for
such States to submit written recommendations respecting the issuance of
the permit and its terms and conditions. If any part of those
recommendations are not accepted by the permitting authority, such
authority shall notify the State submitting the recommendations and the
Administrator in writing of its failure to accept those recommendations
and the reasons therefor.
(b) Objection by EPA
(1) If any permit contains provisions that are determined by the
Administrator as not in compliance with the applicable requirements of
this chapter, including the requirements of an applicable implementation
plan, the Administrator shall, in accordance with this subsection,
object to its issuance. The permitting authority shall respond in
writing if the Administrator (A) within 45 days after receiving a copy
of the proposed permit under subsection (a)(1) of this section, or (B)
within 45 days after receiving notification under subsection (a)(2) of
this section, objects in writing to its issuance as not in compliance
with such requirements. With the objection, the Administrator shall
provide a statement of the reasons for the objection. A copy of the
objection and statement shall be provided to the applicant.
(2) If the Administrator does not object in writing to the issuance
of a permit pursuant to paragraph (1), any person may petition the
Administrator within 60 days after the expiration of the 45-day review
period specified in paragraph (1) to take such action. A copy of such
petition shall be provided to the permitting authority and the applicant
by the petitioner. The petition shall be based only on objections to
the permit that were raised with reasonable specificity during the
public comment period provided by the permitting agency (unless the
petitioner demonstrates in the petition to the Administrator that it was
impracticable to raise such objections within such period or unless the
grounds for such objection arose after such period). The petition shall
identify all such objections. If the permit has been issued by the
permitting agency, such petition shall not postpone the effectiveness of
the permit. The Administrator shall grant or deny such petition within
60 days after the petition is filed. The Administrator shall issue an
objection within such period if the petitioner demonstrates to the
Administrator that the permit is not in compliance with the requirements
of this chapter, including the requirements of the applicable
implementation plan. Any denial of such petition shall be subject to
judicial review under section 7607 of this title. The Administrator
shall include in regulations under this subchapter provisions to
implement this paragraph. The Administrator may not delegate the
requirements of this paragraph.
(3) Upon receipt of an objection by the Administrator under this
subsection, the permitting authority may not issue the permit unless it
is revised and issued in accordance with subsection (c) of this section.
If the permitting authority has issued a permit prior to receipt of an
objection by the Administrator under paragraph (2) of this subsection,
the Administrator shall modify, terminate, or revoke such permit and the
permitting authority may thereafter only issue a revised permit in
accordance with subsection (c) of this section.
(c) Issuance or denial
If the permitting authority fails, within 90 days after the date of
an objection under subsection (b) of this section, to submit a permit
revised to meet the objection, the Administrator shall issue or deny the
permit in accordance with the requirements of this subchapter. No
objection shall be subject to judicial review until the Administrator
takes final action to issue or deny a permit under this subsection.
(d) Waiver of notification requirements
(1) The Administrator may waive the requirements of subsections (a)
and (b) of this section at the time of approval of a permit program
under this subchapter for any category (including any class, type, or
size within such category) of sources covered by the program other than
major sources.
(2) The Administrator may, by regulation, establish categories of
sources (including any class, type, or size within such category) to
which the requirements of subsections (a) and (b) of this section shall
not apply. The preceding sentence shall not apply to major sources.
(3) The Administrator may exclude from any waiver under this
subsection notification under subsection (a)(2) of this section. Any
waiver granted under this subsection may be revoked or modified by the
Administrator by rule.
(e) Refusal of permitting authority to terminate, modify, or revoke
and reissue
If the Administrator finds that cause exists to terminate, modify, or
revoke and reissue a permit under this subchapter, the Administrator
shall notify the permitting authority and the source of the
Administrator's finding. The permitting authority shall, within 90 days
after receipt of such notification, forward to the Administrator under
this section a proposed determination of termination, modification, or
revocation and reissuance, as appropriate. The Administrator may extend
such 90 day period for an additional 90 days if the Administrator finds
that a new or revised permit application is necessary, or that the
permitting authority must require the permittee to submit additional
information. The Administrator may review such proposed determination
under the provisions of subsections (a) and (b) of this section. If the
permitting authority fails to submit the required proposed
determination, or if the Administrator objects and the permitting
authority fails to resolve the objection within 90 days, the
Administrator may, after notice and in accordance with fair and
reasonable procedures, terminate, modify, or revoke and reissue the
permit.
(July 14, 1955, ch. 360, title V, 505, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2643.)
42 USC -- 7661e. Other authorities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
Nothing in this subchapter shall prevent a State, or interstate
permitting authority, from establishing additional permitting
requirements not inconsistent with this chapter.
(b) Permits implementing acid rain provisions
The provisions of this subchapter, including provisions regarding
schedules for submission and approval or disapproval of permit
applications, shall apply to permits implementing the requirements of
subchapter IV-A of this chapter except as modified by that subchapter.
(July 14, 1955, ch. 360, title V, 506, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2645.)
42 USC -- 7661f. Small business stationary source technical and
environmental compliance assistance program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plan revisions
Consistent with sections 7410 and 7412 of this title, each State
shall, after reasonable notice and public hearings, adopt and submit to
the Administrator as part of the State implementation plan for such
State or as a revision to such State implementation plan under section
7410 of this title, plans for establishing a small business stationary
source technical and environmental compliance assistance program. Such
submission shall be made within 24 months after November 15, 1990. The
Administrator shall approve such program if it includes each of the
following:
(1) Adequate mechanisms for developing, collecting, and coordinating
information concerning compliance methods and technologies for small
business stationary sources, and programs to encourage lawful
cooperation among such sources and other persons to further compliance
with this chapter.
(2) Adequate mechanisms for assisting small business stationary
sources with pollution prevention and accidental release detection and
prevention, including providing information concerning alternative
technologies, process changes, products, and methods of operation that
help reduce air pollution.
(3) A designated State office within the relevant State agency to
serve as ombudsman for small business stationary sources in connection
with the implementation of this chapter.
(4) A compliance assistance program for small business stationary
sources which assists small business stationary sources in determining
applicable requirements and in receiving permits under this chapter in a
timely and efficient manner.
(5) Adequate mechanisms to assure that small business stationary
sources receive notice of their rights under this chapter in such manner
and form as to assure reasonably adequate time for such sources to
evaluate compliance methods and any relevant or applicable proposed or
final regulation or standard issued under this chapter.
(6) Adequate mechanisms for informing small business stationary
sources of their obligations under this chapter, including mechanisms
for referring such sources to qualified auditors or, at the option of
the State, for providing audits of the operations of such sources to
determine compliance with this chapter.
(7) Procedures for consideration of requests from a small business
stationary source for modification of --
(A) any work practice or technological method of compliance, or
(B) the schedule of milestones for implementing such work practice or
method of compliance preceding any applicable compliance date,
based on the technological and financial capability of any such small
business stationary source. No such modification may be granted unless
it is in compliance with the applicable requirements of this chapter,
including the requirements of the applicable implementation plan. Where
such applicable requirements are set forth in Federal regulations, only
modifications authorized in such regulations may be allowed.
(b) Program
The Administrator shall establish within 9 months after November 15,
1990, a small business stationary source technical and environmental
compliance assistance program. Such program shall --
(1) assist the States in the development of the program required
under subsection (a) of this section (relating to assistance for small
business stationary sources);
(2) issue guidance for the use of the States in the implementation of
these programs that includes alternative control technologies and
pollution prevention methods applicable to small business stationary
sources; and
(3) provide for implementation of the program provisions required
under subsection (a)(4) of this section in any State that fails to
submit such a program under that subsection.
(c) Eligibility
(1) Except as provided in paragraphs (2) and (3), for purposes of
this section, the term ''small business stationary source'' means a
stationary source that --
(A) is owned or operated by a person that employs 100 or fewer
individuals,
(B) is a small business concern as defined in the Small Business Act
(15 U.S.C. 631 et seq.);
(C) is not a major stationary source;
(D) does not emit 50 tons or more per year of any regulated
pollutant; and
(E) emits less than 75 tons per year of all regulated pollutants.
(2) Upon petition by a source, the State may, after notice and
opportunity for public comment, include as a small business stationary
source for purposes of this section any stationary source which does not
meet the criteria of subparagraphs /1/ (C), (D), or (E) of paragraph (1)
but which does not emit more than 100 tons per year of all regulated
pollutants.
(3)(A) The Administrator, in consultation with the Administrator of
the Small Business Administration and after providing notice and
opportunity for public comment, may exclude from the small business
stationary source definition under this section any category or
subcategory of sources that the Administrator determines to have
sufficient technical and financial capabilities to meet the requirements
of this chapter without the application of this subsection.
(B) The State, in consultation with the Administrator and the
Administrator of the Small Business Administration and after providing
notice and opportunity for public hearing, may exclude from the small
business stationary source definition under this section any category or
subcategory of sources that the State determines to have sufficient
technical and financial capabilities to meet the requirements of this
chapter without the application of this subsection.
(d) Monitoring
The Administrator shall direct the Agency's Office of Small and
Disadvantaged Business Utilization through the Small Business Ombudsman
(hereinafter in this section referred to as the ''Ombudsman'') to
monitor the small business stationary source technical and environmental
compliance assistance program under this section. In carrying out such
monitoring activities, the Ombudsman shall --
(1) render advisory opinions on the overall effectiveness of the
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program, difficulties encountered, and degree and severity of
enforcement;
(2) make periodic reports to the Congress on the compliance of the
Small Business Stationary Source Technical and Environmental Compliance
Assistance Program with the requirements of the Paperwork Reduction Act
(44 U.S.C. 3501 et seq.), the Regulatory Flexibility Act (5 U.S.C. 601
et seq.), and the Equal Access to Justice Act;
(3) review information to be issued by the Small Business Stationary
Source Technical and Environmental Compliance Assistance Program for
small business stationary sources to ensure that the information is
understandable by the layperson; and
(4) have the Small Business Stationary Source Technical and
Environmental Compliance Assistance Program serve as the secretariat for
the development and dissemination of such reports and advisory opinions.
(e) Compliance Advisory Panel
(1) There shall be created a Compliance Advisory Panel (hereinafter
referred to as the ''Panel'') on the State level of not less than 7
individuals. This Panel shall --
(A) render advisory opinions concerning the effectiveness of the
small business stationary source technical and environmental compliance
assistance program, difficulties encountered, and degree and severity of
enforcement;
(B) make periodic reports to the Administrator concerning the
compliance of the State Small Business Stationary Source Technical and
Environmental Compliance Assistance Program with the requirements of the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.), the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), and the Equal Access to Justice
Act;
(C) review information for small business stationary sources to
assure such information is understandable by the layperson; and
(D) have the Small Business Stationary Source Technical and
Environmental Compliance Assistance Program serve as the secretariat for
the development and dissemination of such reports and advisory opinions.
(2) The Panel shall consist of --
(A) 2 members, who are not owners, or representatives of owners, of
small business stationary sources, selected by the Governor to represent
the general public;
(B) 2 members selected by the State legislature who are owners, or
who represent owners, of small business stationary sources (1 member
each by the majority and minority leadership of the lower house, or in
the case of a unicameral State legislature, 2 members each shall be
selected by the majority leadership and the minority leadership,
respectively, of such legislature, and subparagraph (C) shall not
apply);
(C) 2 members selected by the State legislature who are owners, or
who represent owners, of small business stationary sources (1 member
each by the majority and minority leadership of the upper house, or the
equivalent State entity); and
(D) 1 member selected by the head of the department or agency of the
State responsible for air pollution permit programs to represent that
agency.
(f) Fees
The State (or the Administrator) may reduce any fee required under
this chapter to take into account the financial resources of small
business stationary sources.
(g) Continuous emission monitors
In developing regulations and CTGs under this chapter that contain
continuous emission monitoring requirements, the Administrator,
consistent with the requirements of this chapter, before applying such
requirements to small business stationary sources, shall consider the
necessity and appropriateness of such requirements for such sources.
Nothing in this subsection shall affect the applicability of subchapter
IV-A of this chapter provisions relating to continuous emissions
monitoring.
(h) Control technique guidelines
The Administrator shall consider, consistent with the requirements of
this chapter, the size, type, and technical capabilities of small
business stationary sources (and sources which are eligible under
subsection (c)(2) of this section to be treated as small business
stationary sources) in developing CTGs applicable to such sources under
this chapter.
(July 14, 1955, ch. 360, title V, 507, as added Nov. 15, 1990, Pub.
L. 101-549, title V, 501, 104 Stat. 2645.)
The Small Business Act, referred to in subsec. (c)(1)(B), is Pub.
L. 85-536, July 18, 1958, 72 Stat. 384, as amended, which is classified
generally to chapter 14A ( 631 et seq.) of Title 15, Commerce and Trade.
For complete classification of this Act to the Code, see Short Title
note set out under section 631 of Title 15 and Tables.
The Paperwork Reduction Act, referred to in subsecs. (d)(2) and
(e)(1)(B), probably means the Paperwork Reduction Act of 1980, Pub. L.
96-511, Dec. 11, 1980, 94 Stat. 2812, as amended, which is classified
principally to chapter 35 ( 3501 et seq.) of Title 44, Public Printing
and Documents. For complete classification of this Act to the Code, see
Short Title of 1980 Amendment note set out under section 101 of Title 44
and Tables.
The Regulatory Flexibility Act, referred to in subsecs. (d)(2) and
(e)(1)(B), is Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164, which is
classified generally to chapter 6 ( 601 et seq.) of Title 5, Government
Organization and Employees. For complete classification of this Act to
the Code, see Short Title note set out under section 601 of Title 5 and
Tables.
The Equal Access to Justice Act, referred to in subsecs. (d)(2) and
(e)(1)(B), is title II of Pub. L. 96-481, Oct. 21, 1980, 94 Stat.
2325. For complete classification of this Act to the Code, see Short
Title note set out under section 504 of Title 5.
/1/ So in original. Probably should be ''subparagraph''.
42 USC -- SUBCHAPTER VI -- STRATOSPHERIC OZONE PROTECTION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7671. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this subchapter --
(1) Appliance
The term ''appliance'' means any device which contains and uses a
class I or class II substance as a refrigerant and which is used for
household or commercial purposes, including any air conditioner,
refrigerator, chiller, or freezer.
(2) Baseline year
The term ''baseline year'' means --
(A) the calendar year 1986, in the case of any class I substance
listed in Group I or II under section 7671a(a) of this title,
(B) the calendar year 1989, in the case of any class I substance
listed in Group III, IV, or V under section 7671a(a) of this title, and
(C) a representative calendar year selected by the Administrator, in
the case of --
(i) any substance added to the list of class I substances after the
publication of the initial list under section 7671a(a) of this title,
and
(ii) any class II substance.
(3) Class I substance
The term ''class I substance'' means each of the substances listed as
provided in section 7671a(a) of this title.
(4) Class II substance
The term ''class II substance'' means each of the substances listed
as provided in section 7671a(b) of this title.
(5) Commissioner
The term ''Commissioner'' means the Commissioner of the Food and Drug
Administration.
(6) Consumption
The term ''consumption'' means, with respect to any substance, the
amount of that substance produced in the United States, plus the amount
imported, minus the amount exported to Parties to the Montreal Protocol.
Such term shall be construed in a manner consistent with the Montreal
Protocol.
(7) Import
The term ''import'' means to land on, bring into, or introduce into,
or attempt to land on, bring into, or introduce into, any place subject
to the jurisdiction of the United States, whether or not such landing,
bringing, or introduction constitutes an importation within the meaning
of the customs laws of the United States.
(8) Medical device
The term ''medical device'' means any device (as defined in the
Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic
product, drug (as defined in the Federal Food, Drug, and Cosmetic Act),
and drug delivery system --
(A) if such device, product, drug, or drug delivery system utilizes a
class I or class II substance for which no safe and effective
alternative has been developed, and where necessary, approved by the
Commissioner; and
(B) if such device, product, drug, or drug delivery system, has,
after notice and opportunity for public comment, been approved and
determined to be essential by the Commissioner in consultation with the
Administrator.
(9) Montreal Protocol
The terms ''Montreal Protocol'' and ''the Protocol'' mean the
Montreal Protocol on Substances that Deplete the Ozone Layer, a protocol
to the Vienna Convention for the Protection of the Ozone Layer,
including adjustments adopted by Parties thereto and amendments that
have entered into force.
(10) Ozone-depletion potential
The term ''ozone-depletion potential'' means a factor established by
the Administrator to reflect the ozone-depletion potential of a
substance, on a mass per kilogram basis, as compared to
chlorofluorocarbon-11 (CFC-11). Such factor shall be based upon the
substance's atmospheric lifetime, the molecular weight of bromine and
chlorine, and the substance's ability to be photolytically
disassociated, and upon other factors determined to be an accurate
measure of relative ozone-depletion potential.
(11) Produce, produced, and production
The terms ''produce'', ''produced'', and ''production'', refer to the
manufacture of a substance from any raw material or feedstock chemical,
but such terms do not include --
(A) the manufacture of a substance that is used and entirely consumed
(except for trace quantities) in the manufacture of other chemicals, or
(B) the reuse or recycling of a substance.
(July 14, 1955, ch. 360, title VI, 601, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2649.)
The customs laws of the United States, referred to in par. (7), are
classified generally to Title 19, Customs Duties.
The Federal Food, Drug, and Cosmetic Act, referred to in par. (8),
is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended, which is
classified generally to chapter 9 ( 301 et seq.) of Title 21, Food and
Drugs. For complete classification of this Act to the Code, see section
301 of Title 21 and Tables.
42 USC -- 7671a. Listing of class I and class II substances
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) List of class I substances
Within 60 days after November 15, 1990, the Administrator shall
publish an initial list of class I substances, which list shall contain
the following substances:
Group I
chlorofluorocarbon-11 (CFC-11)
chlorofluorocarbon-12 (CFC-12)
chlorofluorocarbon-113 (CFC-113)
chlorofluorocarbon-114 (CFC-114)
chlorofluorocarbon-115 (CFC-115)
Group II
halon-1211
halon-1301
halon-2402
Group III
chlorofluorocarbon-13 (CFC-13)
chlorofluorocarbon-111 (CFC-111)
chlorofluorocarbon-112 (CFC-112)
chlorofluorocarbon-211 (CFC-211)
chlorofluorocarbon-212 (CFC-212)
chlorofluorocarbon-213 (CFC-213)
chlorofluorocarbon-214 (CFC-214)
chlorofluorocarbon-215 (CFC-215)
chlorofluorocarbon-216 (CFC-216)
chlorofluorocarbon-217 (CFC-217)
Group IV
carbon tetrachloride
Group V
methyl chloroform
The initial list under this subsection shall also include the isomers
of the substances listed above, other than 1,1,2-trichloroethane (an
isomer of methyl chloroform). Pursuant to subsection (c) of this
section, the Administrator shall add to the list of class I substances
any other substance that the Administrator finds causes or contributes
significantly to harmful effects on the stratospheric ozone layer. The
Administrator shall, pursuant to subsection (c) of this section, add to
such list all substances that the Administrator determines have an ozone
depletion potential of 0.2 or greater.
(b) List of class II substances
Simultaneously with publication of the initial list of class I
substances, the Administrator shall publish an initial list of class II
substances, which shall contain the following substances:
hydrochlorofluorocarbon-21 (HCFC-21)
hydrochlorofluorocarbon-22 (HCFC-22)
hydrochlorofluorocarbon-31 (HCFC-31)
hydrochlorofluorocarbon-121 (HCFC-121)
hydrochlorofluorocarbon-122 (HCFC-122)
hydrochlorofluorocarbon-123 (HCFC-123)
hydrochlorofluorocarbon-124 (HCFC-124)
hydrochlorofluorocarbon-131 (HCFC-131)
hydrochlorofluorocarbon-132 (HCFC-132)
hydrochlorofluorocarbon-133 (HCFC-133)
hydrochlorofluorocarbon-141 (HCFC-141)
hydrochlorofluorocarbon-142 (HCFC-142)
hydrochlorofluorocarbon-221 (HCFC-221)
hydrochlorofluorocarbon-222 (HCFC-222)
hydrochlorofluorocarbon-223 (HCFC-223)
hydrochlorofluorocarbon-224 (HCFC-224)
hydrochlorofluorocarbon-225 (HCFC-225)
hydrochlorofluorocarbon-226 (HCFC-226)
hydrochlorofluorocarbon-231 (HCFC-231)
hydrochlorofluorocarbon-232 (HCFC-232)
hydrochlorofluorocarbon-233 (HCFC-233)
hydrochlorofluorocarbon-234 (HCFC-234)
hydrochlorofluorocarbon-235 (HCFC-235)
hydrochlorofluorocarbon-241 (HCFC-241)
hydrochlorofluorocarbon-242 (HCFC-242)
hydrochlorofluorocarbon-243 (HCFC-243)
hydrochlorofluorocarbon-244 (HCFC-244)
hydrochlorofluorocarbon-251 (HCFC-251)
hydrochlorofluorocarbon-252 (HCFC-252)
hydrochlorofluorocarbon-253 (HCFC-253)
hydrochlorofluorocarbon-261 (HCFC-261)
hydrochlorofluorocarbon-262 (HCFC-262)
hydrochlorofluorocarbon-271 (HCFC-271)
The initial list under this subsection shall also include the isomers
of the substances listed above. Pursuant to subsection (c) of this
section, the Administrator shall add to the list of class II substances
any other substance that the Administrator finds is known or may
reasonably be anticipated to cause or contribute to harmful effects on
the stratospheric ozone layer.
(c) Additions to the lists
(1) The Administrator may add, by rule, in accordance with the
criteria set forth in subsection (a) or (b) of this section, as the case
may be, any substance to the list of class I or class II substances
under subsection (a) or (b) of this section. For purposes of exchanges
under section 7661f /1/ of this title, whenever a substance is added to
the list of class I substances the Administrator shall, to the extent
consistent with the Montreal Protocol, assign such substance to existing
Group I, II, III, IV, or V or place such substance in a new Group.
(2) Periodically, but not less frequently than every 3 years after
November 15, 1990, the Administrator shall list, by rule, as additional
class I or class II substances those substances which the Administrator
finds meet the criteria of subsection (a) or (b) of this section, as the
case may be.
(3) At any time, any person may petition the Administrator to add a
substance to the list of class I or class II substances. Pursuant to
the criteria set forth in subsection (a) or (b) of this section as the
case may be, within 180 days after receiving such a petition, the
Administrator shall either propose to add the substance to such list or
publish an explanation of the petition denial. In any case where the
Administrator proposes to add a substance to such list, the
Administrator shall add, by rule, (or make a final determination not to
add) such substance to such list within 1 year after receiving such
petition. Any petition under this paragraph shall include a showing by
the petitioner that there are data on the substance adequate to support
the petition. If the Administrator determines that information on the
substance is not sufficient to make a determination under this
paragraph, the Administrator shall use any authority available to the
Administrator, under any law administered by the Administrator, to
acquire such information.
(4) Only a class II substance which is added to the list of class I
substances may be removed from the list of class II substances. No
substance referred to in subsection (a) of this section, including
methyl chloroform, may be removed from the list of class I substances.
(d) New listed substances
In the case of any substance added to the list of class I or class II
substances after publication of the initial list of such substances
under this section, the Administrator may extend any schedule or
compliance deadline contained in section 7671c or 7671d of this title to
a later date than specified in such sections if such schedule or
deadline is unattainable, considering when such substance is added to
the list. No extension under this subsection may extend the date for
termination of production of any class I substance to a date more than 7
years after January 1 of the year after the year in which the substance
is added to the list of class I substances. No extension under this
subsection may extend the date for termination of production of any
class II substance to a date more than 10 years after January 1 of the
year after the year in which the substance is added to the list of class
II substances.
(e) Ozone-depletion and global warming potential
Simultaneously with publication of the lists under this section and
simultaneously with any addition to either of such lists, the
Administrator shall assign to each listed substance a numerical value
representing the substance's ozone-depletion potential. In addition,
the Administrator shall publish the chlorine and bromine loading
potential and the atmospheric lifetime of each listed substance. One
year after November 15, 1990 (one year after the addition of a substance
to either of such lists in the case of a substance added after the
publication of the initial lists of such substances), and after notice
and opportunity for public comment, the Administrator shall publish the
global warming potential of each listed substance. The preceding
sentence shall not be construed to be the basis of any additional
regulation under this chapter. In the case of the substances referred
to in table 1, the ozone-depletion potential shall be as specified in
table 1, unless the Administrator adjusts the substance's
ozone-depletion potential based on criteria referred to in section
7671(10) of this title:
Where the ozone-depletion potential of a substance is specified in
the Montreal Protocol, the ozone-depletion potential specified for that
substance under this section shall be consistent with the Montreal
Protocol.
(July 14, 1955, ch. 360, title VI, 602, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2650.)
/1/ So in original. Probably should be section ''7671f''.
42 USC -- 7671b. Monitoring and reporting requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations
Within 270 days after November 15, 1990, the Administrator shall
amend the regulations of the Administrator in effect on such date
regarding monitoring and reporting of class I and class II substances.
Such amendments shall conform to the requirements of this section. The
amended regulations shall include requirements with respect to the time
and manner of monitoring and reporting as required under this section.
(b) Production, import, and export level reports
On a quarterly basis, or such other basis (not less than annually) as
determined by the Administrator, each person who produced, imported, or
exported a class I or class II substance shall file a report with the
Administrator setting forth the amount of the substance that such person
produced, imported, and exported during the preceding reporting period.
Each such report shall be signed and attested by a responsible officer.
No such report shall be required from a person after April 1 of the
calendar year after such person permanently ceases production,
importation, and exportation of the substance and so notifies the
Administrator in writing.
(c) Baseline reports for class I substances
Unless such information has previously been reported to the
Administrator, on the date on which the first report under subsection
(b) of this section is required to be filed, each person who produced,
imported, or exported a class I substance (other than a substance added
to the list of class I substances after the publication of the initial
list of such substances under this section) shall file a report with the
Administrator setting forth the amount of such substance that such
person produced, imported, and exported during the baseline year. In
the case of a substance added to the list of class I substances after
publication of the initial list of such substances under this section,
the regulations shall require that each person who produced, imported,
or exported such substance shall file a report with the Administrator
within 180 days after the date on which such substance is added to the
list, setting forth the amount of the substance that such person
produced, imported, and exported in the baseline year.
(d) Monitoring and reports to Congress
(1) The Administrator shall monitor and, not less often than every 3
years following November 15, 1990, submit a report to Congress on the
production, use and consumption of class I and class II substances.
Such report shall include data on domestic production, use and
consumption, and an estimate of worldwide production, use and
consumption of such substances. Not less frequently than every 6 years
the Administrator shall report to Congress on the environmental and
economic effects of any stratospheric ozone depletion.
(2) The Administrators of the National Aeronautics and Space
Administration and the National Oceanic and Atmospheric Administration
shall monitor, and not less often than every 3 years following November
15, 1990, submit a report to Congress on the current average
tropospheric concentration of chlorine and bromine and on the level of
stratospheric ozone depletion. Such reports shall include updated
projections of --
(A) peak chlorine loading;
(B) the rate at which the atmospheric abundance of chlorine is
projected to decrease after the year 2000; and
(C) the date by which the atmospheric abundance of chlorine is
projected to return to a level of two parts per billion.
Such updated projections shall be made on the basis of current
international and domestic controls on substances covered by this
subchapter as well as on the basis of such controls supplemented by a
year 2000 global phase out of all halocarbon emissions (the base case).
It is the purpose of the Congress through the provisions of this section
to monitor closely the production and consumption of class II substances
to assure that the production and consumption of such substances will
not:
(i) increase significantly the peak chlorine loading that is
projected to occur under the base case established for purposes of this
section;
(ii) reduce significantly the rate at which the atmospheric abundance
of chlorine is projected to decrease under the base case; or
(iii) delay the date by which the average atmospheric concentration
of chlorine is projected under the base case to return to a level of two
parts per billion.
(e) Technology status report in 2015
The Administrator shall review, on a periodic basis, the progress
being made in the development of alternative systems or products
necessary to manufacture and operate appliances without class II
substances. If the Administrator finds, after notice and opportunity
for public comment, that as a result of technological development
problems, the development of such alternative systems or products will
not occur within the time necessary to provide for the manufacture of
such equipment without such substances prior to the applicable deadlines
under section 7671d of this title, the Administrator shall, not later
than January 1, 2015, so inform the Congress.
(f) Emergency report
If, in consultation with the Administrators of the National
Aeronautics and Space Administration and the National Oceanic and
Atmospheric Administration, and after notice and opportunity for public
comment, the Administrator determines that the global production,
consumption, and use of class II substances are projected to contribute
to an atmospheric chlorine loading in excess of the base case
projections by more than 5/10ths parts per billion, the Administrator
shall so inform the Congress immediately. The determination referred to
in the preceding sentence shall be based on the monitoring under
subsection (d) of this section and updated not less often than every 3
years.
(July 14, 1955, ch. 360, title VI, 603, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2653.)
Section 603 of Pub. L. 101-549 provided that:
''(a) Economically Justified Actions. -- Not later than 2 years after
enactment of this Act (Nov. 15, 1990), the Administrator shall prepare
and submit a report to the Congress that identifies activities,
substances, processes, or combinations thereof that could reduce methane
emissions and that are economically and technologically justified with
and without consideration of environmental benefit.
''(b) Domestic Methane Source Inventory and Control. -- Not later
than 2 years after the enactment of this Act (Nov. 15, 1990), the
Administrator, in consultation and coordination with the Secretary of
Energy and the Secretary of Agriculture, shall prepare and submit to the
Congress reports on each of the following:
''(1) Methane emissions associated with natural gas extraction,
transportation, distribution, storage, and use. Such report shall
include an inventory of methane emissions associated with such
activities within the United States. Such emissions include, but are
not limited to, accidental and intentional releases from natural gas and
oil wells, pipelines, processing facilities, and gas burners. The
report shall also include an inventory of methane generation with such
activities.
''(2) Methane emissions associated with coal extraction,
transportation, distribution, storage, and use. Such report shall
include an inventory of methane emissions associated with such
activities within the United States. Such emissions include, but are
not limited to, accidental and intentional releases from mining shafts,
degasification wells, gas recovery wells and equipment, and from the
processing and use of coal. The report shall also include an inventory
of methane generation with such activities.
''(3) Methane emissions associated with management of solid waste.
Such report shall include an inventory of methane emissions associated
with all forms of waste management in the United States, including
storage, treatment, and disposal.
''(4) Methane emissions associated with agriculture. Such report
shall include an inventory of methane emissions associated with rice and
livestock production in the United States.
''(5) Methane emissions associated with biomass burning. Such report
shall include an inventory of methane emissions associated with the
intentional burning of agricultural wastes, wood, grasslands, and
forests.
''(6) Other methane emissions associated with human activities. Such
report shall identify and inventory other domestic sources of methane
emissions that are deemed by the Administrator and other such agencies
to be significant.
''(c) International Studies. --
''(1) Methane emissions. -- Not later than 2 years after the
enactment of this Act (Nov. 15, 1990), the Administrator shall prepare
and submit to the Congress a report on methane emissions from countries
other than the United States. Such report shall include inventories of
methane emissions associated with the activities listed in subsection
(b).
''(2) Preventing increases in methane concentrations. -- Not later
than 2 years after the enactment of this Act (Nov. 15, 1990), the
Administrator shall prepare and submit to the Congress a report that
analyzes the potential for preventing an increase in atmospheric
concentrations of methane from activities and sources in other
countries. Such report shall identify and evaluate the technical
options for reducing methane emission from each of the activities listed
in subsection (b), as well as other activities or sources that are
deemed by the Administrator in consultation with other relevant Federal
agencies and departments to be significant and shall include an
evaluation of costs. The report shall identify the emissions reductions
that would need to be achieved to prevent increasing atmospheric
concentrations of methane. The report shall also identify technology
transfer programs that could promote methane emissions reductions in
lesser developed countries.
''(d) Natural Sources. -- Not later than 2 years after the enactment
of this Act (Nov. 15, 1990), the Administrator shall prepare and submit
to the Congress a report on --
''(1) methane emissions from biogenic sources such as (A) tropical,
temperate, and subarctic forests, (B) tundra, and (C) freshwater and
saltwater wetlands; and
''(2) the changes in methane emissions from biogenic sources that may
occur as a result of potential increases in temperatures and atmospheric
concentrations of carbon dioxide.
''(e) Study of Measures To Limit Growth in Methane Concentrations.
-- Not later than 2 years after the completion of the studies in
subsections (b), (c), and (d), the Administrator shall prepare and
submit to the Congress a report that presents options outlining measures
that could be implemented to stop or reduce the growth in atmospheric
concentrations of methane from sources within the United States referred
to in paragraphs (1) through (6) of subsection (b). This study shall
identify and evaluate the technical options for reducing methane
emissions from each of the activities listed in subsection (b), as well
as other activities or sources deemed by such agencies to be
significant, and shall include an evaluation of costs, technology,
safety, energy, and other factors. The study shall be based on the
other studies under this section. The study shall also identify
programs of the United States and international lending agencies that
could be used to induce lesser developed countries to undertake measures
that will reduce methane emissions and the resource needs of such
programs.
''(f) Information Gathering. -- In carrying out the studies under
this section, the provisions and requirements of section 114 of the
Clean Air Act (42 U.S.C. 7414) shall be available for purposes of
obtaining information to carry out such studies.
''(g) Consultation and Coordination. -- In preparing the studies
under this section the Administrator shall consult and coordinate with
the Secretary of Energy, the Administrators of the National Aeronautics
and Space Administration and the National Oceanic and Atmospheric
Administration, and the heads of other relevant Federal agencies and
departments. In the case of the studies under subsections (a), (b), and
(e), such consultation and coordination shall include the Secretary of
Agriculture.''
42 USC -- 7671c. Phase-out of production and consumption of class I
substances
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Production phase-out
Effective on January 1 of each year specified in Table 2, it shall be
unlawful for any person to produce any class I substance in an annual
quantity greater than the relevant percentage specified in Table 2. The
percentages in Table 2 refer to a maximum allowable production as a
percentage of the quantity of the substance produced by the person
concerned in the baseline year.
(b) Termination of production of class I substances
Effective January 1, 2000 (January 1, 2002 in the case of methyl
chloroform), it shall be unlawful for any person to produce any amount
of a class I substance.
(c) Regulations regarding production and consumption of class I
substances
The Administrator shall promulgate regulations within 10 months after
November 15, 1990, phasing out the production of class I substances in
accordance with this section and other applicable provisions of this
subchapter. The Administrator shall also promulgate regulations to
insure that the consumption of class I substances in the United States
is phased out and terminated in accordance with the same schedule
(subject to the same exceptions and other provisions) as is applicable
to the phase-out and termination of production of class I substances
under this subchapter.
(d) Exceptions for essential uses of methyl chloroform, medical
devices, and aviation safety
(1) Essential uses of methyl chloroform
Notwithstanding the termination of production required by subsection
(b) of this section, during the period beginning on January 1, 2002, and
ending on January 1, 2005, the Administrator, after notice and
opportunity for public comment, may, to the extent such action is
consistent with the Montreal Protocol, authorize the production of
limited quantities of methyl chloroform solely for use in essential
applications (such as nondestructive testing for metal fatigue and
corrosion of existing airplane engines and airplane parts susceptible to
metal fatigue) for which no safe and effective substitute is available.
Notwithstanding this paragraph, the authority to produce methyl
chloroform for use in medical devices shall be provided in accordance
with paragraph (2).
(2) Medical devices
Notwithstanding the termination of production required by subsection
(b) of this section, the Administrator, after notice and opportunity for
public comment, shall, to the extent such action is consistent with the
Montreal Protocol, authorize the production of limited quantities of
class I substances solely for use in medical devices if such
authorization is determined by the Commissioner, in consultation with
the Administrator, to be necessary for use in medical devices.
(3) Aviation safety
(A) Notwithstanding the termination of production required by
subsection (b) of this section, the Administrator, after notice and
opportunity for public comment, may, to the extent such action is
consistent with the Montreal Protocol, authorize the production of
limited quantities of halon-1211 (bromochlorodifluoromethane),
halon-1301 (bromotrifluoromethane), and halon-2402
(dibromotetrafluoroethane) solely for purposes of aviation safety if the
Administrator of the Federal Aviation Administration, in consultation
with the Administrator, determines that no safe and effective substitute
has been developed and that such authorization is necessary for aviation
safety purposes.
(B) The Administrator of the Federal Aviation Administration shall,
in consultation with the Administrator, examine whether safe and
effective substitutes for methyl chloroform or alternative techniques
will be available for nondestructive testing for metal fatigue and
corrosion of existing airplane engines and airplane parts susceptible to
metal fatigue and whether an exception for such uses of methyl
chloroform under this paragraph will be necessary for purposes of
airline safety after January 1, 2005 and provide a report to Congress in
1998.
(4) Cap on certain exceptions
Under no circumstances may the authority set forth in paragraphs (1),
(2), and (3) of subsection (d) of this section be applied to authorize
any person to produce a class I substance in annual quantities greater
than 10 percent of that produced by such person during the baseline
year.
(e) Developing countries
(1) Exception
Notwithstanding the phase-out and termination of production required
under subsections (a) and (b) of this section, the Administrator, after
notice and opportunity for public comment, may, consistent with the
Montreal Protocol, authorize the production of limited quantities of a
class I substance in excess of the amounts otherwise allowable under
subsection (a) or (b) of this section, or both, solely for export to,
and use in, developing countries that are Parties to the Montreal
Protocol and are operating under article 5 of such Protocol. Any
production authorized under this paragraph shall be solely for purposes
of satisfying the basic domestic needs of such countries.
(2) Cap on exception
(A) Under no circumstances may the authority set forth in paragraph
(1) be applied to authorize any person to produce a class I substance in
any year for which a production percentage is specified in Table 2 of
subsection (a) of this section in an annual quantity greater than the
specified percentage, plus an amount equal to 10 percent of the amount
produced by such person in the baseline year.
(B) Under no circumstances may the authority set forth in paragraph
(1) be applied to authorize any person to produce a class I substance in
the applicable termination year referred to in subsection (b) of this
section, or in any year thereafter, in an annual quantity greater than
15 percent of the baseline quantity of such substance produced by such
person.
(C) An exception authorized under this subsection shall terminate no
later than January 1, 2010 (2012 in the case of methyl chloroform).
(f) National security
The President may, to the extent such action is consistent with the
Montreal Protocol, issue such orders regarding production and use of
CFC-114 (chlorofluorocarbon-114), halon-1211, halon-1301, and
halon-2402, at any specified site or facility or on any vessel as may be
necessary to protect the national security interests of the United
States if the President finds that adequate substitutes are not
available and that the production and use of such substance are
necessary to protect such national security interest. Such orders may
include, where necessary to protect such interests, an exemption from
any prohibition or requirement contained in this subchapter. The
President shall notify the Congress within 30 days of the issuance of an
order under this paragraph providing for any such exemption. Such
notification shall include a statement of the reasons for the granting
of the exemption. An exemption under this paragraph shall be for a
specified period which may not exceed one year. Additional exemptions
may be granted, each upon the President's issuance of a new order under
this paragraph. Each such additional exemption shall be for a specified
period which may not exceed one year. No exemption shall be granted
under this paragraph due to lack of appropriation unless the President
shall have specifically requested such appropriation as a part of the
budgetary process and the Congress shall have failed to make available
such requested appropriation.
(g) Fire suppression and explosion prevention
(1) Notwithstanding the production phase-out set forth in subsection
(a) of this section, the Administrator, after notice and opportunity for
public comment, may, to the extent such action is consistent with the
Montreal Protocol, authorize the production of limited quantities of
halon-1211, halon-1301, and halon-2402 in excess of the amount otherwise
permitted pursuant to the schedule under subsection (a) of this section
solely for purposes of fire suppression or explosion prevention if the
Administrator, in consultation with the Administrator of the United
States Fire Administration, determines that no safe and effective
substitute has been developed and that such authorization is necessary
for fire suppression or explosion prevention purposes. The
Administrator shall not authorize production under this paragraph for
purposes of fire safety or explosion prevention training or testing of
fire suppression or explosion prevention equipment. In no event shall
the Administrator grant an exception under this paragraph that permits
production after December 31, 1999.
(2) The Administrator shall periodically monitor and assess the
status of efforts to obtain substitutes for the substances referred to
in paragraph (1) for purposes of fire suppression or explosion
prevention and the probability of such substitutes being available by
December 31, 1999. The Administrator, as part of such assessment, shall
consider any relevant assessments under the Montreal Protocol and the
actions of the Parties pursuant to Article 2B of the Montreal Protocol
in identifying essential uses and in permitting a level of production or
consumption that is necessary to satisfy such uses for which no adequate
alternatives are available after December 31, 1999. The Administrator
shall report to Congress the results of such assessment in 1994 and
again in 1998.
(3) Notwithstanding the termination of production set forth in
subsection (b) of this section, the Administrator, after notice and
opportunity for public comment, may, to the extent consistent with the
Montreal Protocol, authorize the production of limited quantities of
halon-1211, halon-1301, and halon-2402 in the period after December 31,
1999, and before December 31, 2004, solely for purposes of fire
suppression or explosion prevention in association with domestic
production of crude oil and natural gas energy supplies on the North
Slope of Alaska, if the Administrator, in consultation with the
Administrator of the United States Fire Administration, determines that
no safe and effective substitute has been developed and that such
authorization is necessary for fire suppression and explosion prevention
purposes. The Administrator shall not authorize production under the
paragraph for purposes of fire safety or explosion prevention training
or testing of fire suppression or explosion prevention equipment. In no
event shall the Administrator authorize under this paragraph any person
to produce any such halon in an amount greater than 3 percent of that
produced by such person during the baseline year.
(July 14, 1955, ch. 360, title VI, 604, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2655.)
42 USC -- 7671d. Phase-out of production and consumption of class II
substances
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Restriction of use of class II substances
Effective January 1, 2015, it shall be unlawful for any person to
introduce into interstate commerce or use any class II substance unless
such substance --
(1) has been used, recovered, and recycled;
(2) is used and entirely consumed (except for trace quantities) in
the production of other chemicals; or
(3) is used as a refrigerant in appliances manufactured prior to
January 1, 2020.
As used in this subsection, the term ''refrigerant'' means any class
II substance used for heat transfer in a refrigerating system.
(b) Production phase-out
(1) Effective January 1, 2015, it shall be unlawful for any person to
produce any class II substance in an annual quantity greater than the
quantity of such substance produced by such person during the baseline
year.
(2) Effective January 1, 2030, it shall be unlawful for any person to
produce any class II substance.
(c) Regulations regarding production and consumption of class II
substances
By December 31, 1999, the Administrator shall promulgate regulations
phasing out the production, and restricting the use, of class II
substances in accordance with this section, subject to any acceleration
of the phase-out of production under section 7671e of this title. The
Administrator shall also promulgate regulations to insure that the
consumption of class II substances in the United States is phased out
and terminated in accordance with the same schedule (subject to the same
exceptions and other provisions) as is applicable to the phase-out and
termination of production of class II substances under this subchapter.
(d) Exceptions
(1) Medical devices
(A) In general
Notwithstanding the termination of production required under
subsection (b)(2) of this section and the restriction on use referred to
in subsection (a) of this section, the Administrator, after notice and
opportunity for public comment, shall, to the extent such action is
consistent with the Montreal Protocol, authorize the production and use
of limited quantities of class II substances solely for purposes of use
in medical devices if such authorization is determined by the
Commissioner, in consultation with the Administrator, to be necessary
for use in medical devices.
(B) Cap on exception
Under no circumstances may the authority set forth in subparagraph
(A) be applied to authorize any person to produce a class II substance
in annual quantities greater than 10 percent of that produced by such
person during the baseline year.
(2) Developing countries
(A) In general
Notwithstanding the provisions of subsection (a) or (b) of this
section, the Administrator, after notice and opportunity for public
comment, may authorize the production of limited quantities of a class
II substance in excess of the quantities otherwise permitted under such
provisions solely for export to and use in developing countries that are
Parties to the Montreal Protocol, as determined by the Administrator.
Any production authorized under this subsection shall be solely for
purposes of satisfying the basic domestic needs of such countries.
(B) Cap on exception
(i) Under no circumstances may the authority set forth in
subparagraph (A) be applied to authorize any person to produce a class
II substance in any year following the effective date of subsection
(b)(1) of this section and before the year 2030 in annual quantities
greater than 110 percent of the quantity of such substance produced by
such person during the baseline year.
(ii) Under no circumstances may the authority set forth in
subparagraph (A) be applied to authorize any person to produce a class
II substance in the year 2030, or any year thereafter, in an annual
quantity greater than 15 percent of the quantity of such substance
produced by such person during the baseline year.
(iii) Each exception authorized under this paragraph shall terminate
no later than January 1, 2040.
(July 14, 1955, ch. 360, title VI, 605, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2658.)
42 USC -- 7671e. Accelerated schedule
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
The Administrator shall promulgate regulations, after notice and
opportunity for public comment, which establish a schedule for phasing
out the production and consumption of class I and class II substances
(or use of class II substances) that is more stringent than set forth in
section 7671c or 7671d of this title, or both, if --
(1) based on an assessment of credible current scientific information
(including any assessment under the Montreal Protocol) regarding harmful
effects on the stratospheric ozone layer associated with a class I or
class II substance, the Administrator determines that such more
stringent schedule may be necessary to protect human health and the
environment against such effects,
(2) based on the availability of substitutes for listed substances,
the Administrator determines that such more stringent schedule is
practicable, taking into account technological achievability, safety,
and other relevant factors, or
(3) the Montreal Protocol is modified to include a schedule to
control or reduce production, consumption, or use of any substance more
rapidly than the applicable schedule under this subchapter.
In making any determination under paragraphs (1) and (2), the
Administrator shall consider the status of the period remaining under
the applicable schedule under this subchapter.
(b) Petition
Any person may petition the Administrator to promulgate regulations
under this section. The Administrator shall grant or deny the petition
within 180 days after receipt of any such petition. If the
Administrator denies the petition, the Administrator shall publish an
explanation of why the petition was denied. If the Administrator grants
such petition, such final regulations shall be promulgated within 1
year. Any petition under this subsection shall include a showing by the
petitioner that there are data adequate to support the petition. If the
Administrator determines that information is not sufficient to make a
determination under this subsection, the Administrator shall use any
authority available to the Administrator, under any law administered by
the Administrator, to acquire such information.
(July 14, 1955, ch. 360, title VI, 606, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2660.)
42 USC -- 7671f. Exchange authority
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Transfers
The Administrator shall, within 10 months after November 15, 1990,
promulgate rules under this subchapter providing for the issuance of
allowances for the production of class I and II substances in accordance
with the requirements of this subchapter and governing the transfer of
such allowances. Such rules shall insure that the transactions under
the authority of this section will result in greater total reductions in
the production in each year of class I and class II substances than
would occur in that year in the absence of such transactions.
(b) Interpollutant transfers
(1) The rules under this section shall permit a production allowance
for a substance for any year to be transferred for a production
allowance for another substance for the same year on an ozone depletion
weighted basis.
(2) Allowances for substances in each group of class I substances (as
listed pursuant to section 7671a of this title) may only be transferred
for allowances for other substances in the same Group.
(3) The Administrator shall, as appropriate, establish groups of
class II substances for trading purposes and assign class II substances
to such groups. In the case of class II substances, allowances may only
be transferred for allowances for other class II substances that are in
the same Group.
(c) Trades with other persons
The rules under this section shall permit 2 or more persons to
transfer production allowances (including interpollutant transfers which
meet the requirements of subsections (a) and (b) of this section) if the
transferor of such allowances will be subject, under such rules, to an
enforceable and quantifiable reduction in annual production which --
(1) exceeds the reduction otherwise applicable to the transferor
under this subchapter,
(2) exceeds the production allowances transferred to the transferee,
and
(3) would not have occurred in the absence of such transaction.
(d) Consumption
The rules under this section shall also provide for the issuance of
consumption allowances in accordance with the requirements of this
subchapter and for the trading of such allowances in the same manner as
is applicable under this section to the trading of production allowances
under this section.
(July 14, 1955, ch. 360, title VI, 607, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2660.)
42 USC -- 7671g. National recycling and emission reduction program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
(1) The Administrator shall, by not later than January 1, 1992,
promulgate regulations establishing standards and requirements regarding
the use and disposal of class I substances during the service, repair,
or disposal of appliances and industrial process refrigeration. Such
standards and requirements shall become effective not later than July 1,
1992.
(2) The Administrator shall, within 4 years after November 15, 1990,
promulgate regulations establishing standards and requirements regarding
use and disposal of class I and II substances not covered by paragraph
(1), including the use and disposal of class II substances during
service, repair, or disposal of appliances and industrial process
refrigeration. Such standards and requirements shall become effective
not later than 12 months after promulgation of the regulations.
(3) The regulations under this subsection shall include requirements
that --
(A) reduce the use and emission of such substances to the lowest
achievable level, and
(B) maximize the recapture and recycling of such substances.
Such regulations may include requirements to use alternative
substances (including substances which are not class I or class II
substances) or to minimize use of class I or class II substances, or to
promote the use of safe alternatives pursuant to section 7671k of this
title or any combination of the foregoing.
(b) Safe disposal
The regulations under subsection (a) of this section shall establish
standards and requirements for the safe disposal of class I and II
substances. Such regulations shall include each of the following --
(1) Requirements that class I or class II substances contained in
bulk in appliances, machines or other goods shall be removed from each
such appliance, machine or other good prior to the disposal of such
items or their delivery for recycling.
(2) Requirements that any appliance, machine or other good containing
a class I or class II substance in bulk shall not be manufactured, sold,
or distributed in interstate commerce or offered for sale or
distribution in interstate commerce unless it is equipped with a
servicing aperture or an equally effective design feature which will
facilitate the recapture of such substance during service and repair or
disposal of such item.
(3) Requirements that any product in which a class I or class II
substance is incorporated so as to constitute an inherent element of
such product shall be disposed of in a manner that reduces, to the
maximum extent practicable, the release of such substance into the
environment. If the Administrator determines that the application of
this paragraph to any product would result in producing only
insignificant environmental benefits, the Administrator shall include in
such regulations an exception for such product.
(c) Prohibitions
(1) Effective July 1, 1992, it shall be unlawful for any person, in
the course of maintaining, servicing, repairing, or disposing of an
appliance or industrial process refrigeration, to knowingly vent or
otherwise knowingly release or dispose of any class I or class II
substance used as a refrigerant in such appliance (or industrial process
refrigeration) in a manner which permits such substance to enter the
environment. De minimis releases associated with good faith attempts to
recapture and recycle or safely dispose of any such substance shall not
be subject to the prohibition set forth in the preceding sentence.
(2) Effective 5 years after November 15, 1990, paragraph (1) shall
also apply to the venting, release, or disposal of any substitute
substance for a class I or class II substance by any person maintaining,
servicing, repairing, or disposing of an appliance or industrial process
refrigeration which contains and uses as a refrigerant any such
substance, unless the Administrator determines that venting, releasing,
or disposing of such substance does not pose a threat to the
environment. For purposes of this paragraph, the term ''appliance''
includes any device which contains and uses as a refrigerant a
substitute substance and which is used for household or commercial
purposes, including any air conditioner, refrigerator, chiller, or
freezer.
(July 14, 1955, ch. 360, title VI, 608, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2661.)
42 USC -- 7671h. Servicing of motor vehicle air conditioners
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations
Within 1 year after November 15, 1990, the Administrator shall
promulgate regulations in accordance with this section establishing
standards and requirements regarding the servicing of motor vehicle air
conditioners.
(b) Definitions
As used in this section --
(1) The term ''refrigerant'' means any class I or class II substance
used in a motor vehicle air conditioner. Effective 5 years after
November 15, 1990, the term ''refrigerant'' shall also include any
substitute substance.
(2)(A) The term ''approved refrigerant recycling equipment'' means
equipment certified by the Administrator (or an independent standards
testing organization approved by the Administrator) to meet the
standards established by the Administrator and applicable to equipment
for the extraction and reclamation of refrigerant from motor vehicle air
conditioners. Such standards shall, at a minimum, be at least as
stringent as the standards of the Society of Automotive Engineers in
effect as of November 15, 1990, and applicable to such equipment (SAE
standard J-1990).
(B) Equipment purchased before the proposal of regulations under this
section shall be considered certified if it is substantially identical
to equipment certified as provided in subparagraph (A).
(3) The term ''properly using'' means, with respect to approved
refrigerant recycling equipment, using such equipment in conformity with
standards established by the Administrator and applicable to the use of
such equipment. Such standards shall, at a minimum, be at least as
stringent as the standards of the Society of Automotive Engineers in
effect as of November 15, 1990, and applicable to the use of such
equipment (SAE standard J-1989).
(4) The term ''properly trained and certified'' means training and
certification in the proper use of approved refrigerant recycling
equipment for motor vehicle air conditioners in conformity with
standards established by the Administrator and applicable to the
performance of service on motor vehicle air conditioners. Such
standards shall, at a minimum, be at least as stringent as specified, as
of November 15, 1990, in SAE standard J-1989 under the certification
program of the National Institute for Automotive Service Excellence
(ASE) or under a similar program such as the training and certification
program of the Mobile Air Conditioning Society (MACS).
(c) Servicing motor vehicle air conditioners
Effective January 1, 1992, no person repairing or servicing motor
vehicles for consideration may perform any service on a motor vehicle
air conditioner involving the refrigerant for such air conditioner
without properly using approved refrigerant recycling equipment and no
such person may perform such service unless such person has been
properly trained and certified. The requirements of the previous
sentence shall not apply until January 1, 1993 in the case of a person
repairing or servicing motor vehicles for consideration at an entity
which performed service on fewer than 100 motor vehicle air conditioners
during calendar year 1990 and if such person so certifies, pursuant to
subsection (d)(2) of this section, to the Administrator by Janu- ary 1,
1992.
(d) Certification
(1) Effective 2 years after November 15, 1990, each person performing
service on motor vehicle air conditioners for consideration shall
certify to the Administrator either --
(A) that such person has acquired, and is properly using, approved
refrigerant recycling equipment in service on motor vehicle air
conditioners involving refrigerant and that each individual authorized
by such person to perform such service is properly trained and
certified; or
(B) that such person is performing such service at an entity which
serviced fewer than 100 motor vehicle air conditioners in 1991.
(2) Effective January 1, 1993, each person who certified under
paragraph (1)(B) shall submit a certification under paragraph (1)(A).
(3) Each certification under this subsection shall contain the name
and address of the person certifying under this subsection and the
serial number of each unit of approved recycling equipment acquired by
such person and shall be signed and attested by the owner or another
responsible officer. Certifications under paragraph (1)(A) may be made
by submitting the required information to the Administrator on a
standard form provided by the manufacturer of certified refrigerant
recycling equipment.
(e) Small containers of class I or class II substances
Effective 2 years after November 15, 1990, it shall be unlawful for
any person to sell or distribute, or offer for sale or distribution, in
interstate commerce to any person (other than a person performing
service for consideration on motor vehicle air-conditioning systems in
compliance with this section) any class I or class II substance that is
suitable for use as a refrigerant in a motor vehicle air-conditioning
system and that is in a container which contains less than 20 pounds of
such refrigerant.
(July 14, 1955, ch. 360, title VI, 609, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2662.)
42 USC -- 7671i. Nonessential products containing chlorofluorocarbons
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations
The Administrator shall promulgate regulations to carry out the
requirements of this section within 1 year after November 15, 1990.
(b) Nonessential products
The regulations under this section shall identify nonessential
products that release class I substances into the environment (including
any release occurring during manufacture, use, storage, or disposal) and
prohibit any person from selling or distributing any such product, or
offering any such product for sale or distribution, in interstate
commerce. At a minimum, such prohibition shall apply to --
(1) chlorofluorocarbon-propelled plastic party streamers and noise
horns,
(2) chlorofluorocarbon-containing cleaning fluids for noncommercial
electronic and photographic equipment, and
(3) other consumer products that are determined by the Administrator
--
(A) to release class I substances into the environment (including any
release occurring during manufacture, use, storage, or disposal), and
(B) to be nonessential.
In determining whether a product is nonessential, the Administrator
shall consider the purpose or intended use of the product, the
technological availability of substitutes for such product and for such
class I substance, safety, health, and other relevant factors.
(c) Effective date
Effective 24 months after November 15, 1990, it shall be unlawful for
any person to sell or distribute, or offer for sale or distribution, in
interstate commerce any nonessential product to which regulations under
subsection (a) of this section implementing subsection (b) of this
section are applicable.
(d) Other products
(1) Effective January 1, 1994, it shall be unlawful for any person to
sell or distribute, or offer for sale or distribution, in interstate
commerce --
(A) any aerosol product or other pressurized dispenser which contains
a class II substance; or
(B) any plastic foam product which contains, or is manufactured with,
a class II substance.
(2) The Administrator is authorized to grant exceptions from the
prohibition under subparagraph (A) of paragraph (1) where --
(A) the use of the aerosol product or pressurized dispenser is
determined by the Administrator to be essential as a result of
flammability or worker safety concerns, and
(B) the only available alternative to use of a class II substance is
use of a class I substance which legally could be substituted for such
class II substance.
(3) Subparagraph (B) of paragraph (1) shall not apply to --
(A) a foam insulation product, or
(B) an integral skin, rigid, or semi-rigid foam utilized to provide
for motor vehicle safety in accordance with Federal Motor Vehicle Safety
Standards where no adequate substitute substance (other than a class I
or class II substance) is practicable for effectively meeting such
Standards.
(e) Medical devices
Nothing in this section shall apply to any medical device as defined
in section 7671(8) of this title.
(July 14, 1955, ch. 360, title VI, 610, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2664.)
42 USC -- 7671j. Labeling
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Regulations
The Administrator shall promulgate regulations to implement the
labeling requirements of this section within 18 months after November
15, 1990, after notice and opportunity for public comment.
(b) Containers containing class I or class II substances and products
containing class I substances
Effective 30 months after November 15, 1990, no container in which a
class I or class II substance is stored or transported, and no product
containing a class I substance, shall be introduced into interstate
commerce unless it bears a clearly legible and conspicuous label
stating:
''Warning: Contains (insert name of substance), a substance which
harms public health and environment by destroying ozone in the upper
atmosphere''.
(c) Products containing class II substances
(1) After 30 months after November 15, 1990, and before January 1,
2015, no product containing a class II substance shall be introduced
into interstate commerce unless it bears the label referred to in
subsection (b) of this section if the Administrator determines, after
notice and opportunity for public comment, that there are substitute
products or manufacturing processes (A) that do not rely on the use of
such class II substance, (B) that reduce the overall risk to human
health and the environment, and (C) that are currently or potentially
available.
(2) Effective January 1, 2015, the requirements of subsection (b) of
this section shall apply to all products containing a class II
substance.
(d) Products manufactured with class I and class II substances
(1) In the case of a class II substance, after 30 months after
November 15, 1990, and before January 1, 2015, if the Administrator,
after notice and opportunity for public comment, makes the determination
referred to in subsection (c) of this section with respect to a product
manufactured with a process that uses such class II substance, no such
product shall be introduced into interstate commerce unless it bears a
clearly legible and conspicuous label stating:
''Warning: Manufactured with (insert name of substance), a substance
which harms public health and environment by destroying ozone in the
upper atmosphere'' /1/
(2) In the case of a class I substance, effective 30 months after
November 15, 1990, and before January 1, 2015, the labeling requirements
of this subsection shall apply to all products manufactured with a
process that uses such class I substance unless the Administrator
determines that there are no substitute products or manufacturing
processes that (A) do not rely on the use of such class I substance, (B)
reduce the overall risk to human health and the environment, and (C) are
currently or potentially available.
(e) Petitions
(1) Any person may, at any time after 18 months after November 15,
1990, petition the Administrator to apply the requirements of this
section to a product containing a class II substance or a product
manufactured with a class I or II substance which is not otherwise
subject to such requirements. Within 180 days after receiving such
petition, the Administrator shall, pursuant to the criteria set forth in
subsection (c) of this section, either propose to apply the requirements
of this section to such product or publish an explanation of the
petition denial. If the Administrator proposes to apply such
requirements to such product, the Administrator shall, by rule, render a
final determination pursuant to such criteria within 1 year after
receiving such petition.
(2) Any petition under this paragaph /2/ shall include a showing by
the petitioner that there are data on the product adequate to support
the petition.
(3) If the Administrator determines that information on the product
is not sufficient to make the required determination the Administrator
shall use any authority available to the Administrator under any law
administered by the Administrator to acquire such information.
(4) In the case of a product determined by the Administrator, upon
petition or on the Administrator's own motion, to be subject to the
requirements of this section, the Administrator shall establish an
effective date for such requirements. The effective date shall be 1
year after such determination or 30 months after November 15, 1990,
whichever is later.
(5) Effective January 1, 2015, the labeling requirements of this
subsection /3/ shall apply to all products manufactured with a process
that uses a class I or class II substance.
(f) Relationship to other law
(1) The labeling requirements of this section shall not constitute,
in whole or part, a defense to liability or a cause for reduction in
damages in any suit, whether civil or criminal, brought under any law,
whether Federal or State, other than a suit for failure to comply with
the labeling requirements of this section.
(2) No other approval of such label by the Administrator under any
other law administered by the Administrator shall be required with
respect to the labeling requirements of this section.
(July 14, 1955, ch. 360, title VI, 611, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2665.)
/1/ So in original. Probably should be followed by a period.
/2/ So in original. Probably should be ''paragraph''.
/3/ So in original. Probably should be ''section''.
42 USC -- 7671k. Safe alternatives policy
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Policy
To the maximum extent practicable, class I and class II substances
shall be replaced by chemicals, product substitutes, or alternative
manufacturing processes that reduce overall risks to human health and
the environment.
(b) Reviews and reports
The Administrator shall --
(1) in consultation and coordination with interested members of the
public and the heads of relevant Federal agencies and departments,
recommend Federal research programs and other activities to assist in
identifying alternatives to the use of class I and class II substances
as refrigerants, solvents, fire retardants, foam blowing agents, and
other commercial applications and in achieving a transition to such
alternatives, and, where appropriate, seek to maximize the use of
Federal research facilities and resources to assist users of class I and
class II substances in identifying and developing alternatives to the
use of such substances as refrigerants, solvents, fire retardants, foam
blowing agents, and other commercial applications;
(2) examine in consultation and coordination with the Secretary of
Defense and the heads of other relevant Federal agencies and
departments, including the General Services Administration, Federal
procurement practices with respect to class I and class II substances
and recommend measures to promote the transition by the Federal
Government, as expeditiously as possible, to the use of safe
substitutes;
(3) specify initiatives, including appropriate intergovernmental,
international, and commercial information and technology transfers, to
promote the development and use of safe substitutes for class I and
class II substances, including alternative chemicals, product
substitutes, and alternative manufacturing processes; and
(4) maintain a public clearinghouse of alternative chemicals, product
substitutes, and alternative manufacturing processes that are available
for products and manufacturing processes which use class I and class II
substances.
(c) Alternatives for class I or II substances
Within 2 years after November 15, 1990, the Administrator shall
promulgate rules under this section providing that it shall be unlawful
to replace any class I or class II substance with any substitute
substance which the Administrator determines may present adverse effects
to human health or the environment, where the Administrator has
identified an alternative to such replacement that --
(1) reduces the overall risk to human health and the environment;
and
(2) is currently or potentially available.
The Administrator shall publish a list of (A) the substitutes
prohibited under this subsection for specific uses and (B) the safe
alternatives identified under this subsection for specific uses.
(d) Right to petition
Any person may petition the Administrator to add a substance to the
lists under subsection (c) of this section or to remove a substance from
either of such lists. The Administrator shall grant or deny the
petition within 90 days after receipt of any such petition. If the
Administrator denies the petition, the Administrator shall publish an
explanation of why the petition was denied. If the Administrator grants
such petition the Administrator shall publish such revised list within 6
months thereafter. Any petition under this subsection shall include a
showing by the petitioner that there are data on the substance adequate
to support the petition. If the Administrator determines that
information on the substance is not sufficient to make a determination
under this subsection, the Administrator shall use any authority
available to the Administrator, under any law administered by the
Administrator, to acquire such information.
(e) Studies and notification
The Administrator shall require any person who produces a chemical
substitute for a class I substance to provide the Administrator with
such person's unpublished health and safety studies on such substitute
and require producers to notify the Administrator not less than 90 days
before new or existing chemicals are introduced into interstate commerce
for significant new uses as substitutes for a class I substance. This
subsection shall be subject to section 7414(c) of this title.
(July 14, 1955, ch. 360, title VI, 612, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2667.)
42 USC -- 7671l. Federal procurement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Not later than 18 months after November 15, 1990, the Administrator,
in consultation with the Administrator of the General Services
Administration and the Secretary of Defense, shall promulgate
regulations requiring each department, agency, and instrumentality of
the United States to conform its procurement regulations to the policies
and requirements of this subchapter and to maximize the substitution of
safe alternatives identified under section 7671k of this title for class
I and class II substances. Not later than 30 months after November 15,
1990, each department, agency, and instrumentality of the United States
shall so conform its procurement regulations and certify to the
President that its regulations have been modified in accordance with
this section.
(July 14, 1955, ch. 360, title VI, 613, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2668.)
42 USC -- 7671m. Relationship to other laws
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State laws
Notwithstanding section 7416 of this title, during the 2-year period
beginning on November 15, 1990, no State or local government may enforce
any requirement concerning the design of any new or recalled appliance
for the purpose of protecting the stratospheric ozone layer.
(b) Montreal Protocol
This subchapter as added by the Clean Air Act Amendments of 1990
shall be construed, interpreted, and applied as a supplement to the
terms and conditions of the Montreal Protocol, as provided in Article 2,
paragraph 11 thereof, and shall not be construed, interpreted, or
applied to abrogate the responsibilities or obligations of the United
States to implement fully the provisions of the Montreal Protocol. In
the case of conflict between any provision of this subchapter and any
provision of the Montreal Protocol, the more stringent provision shall
govern. Nothing in this subchapter shall be construed, interpreted, or
applied to affect the authority or responsibility of the Administrator
to implement Article 4 of the Montreal Protocol with other appropriate
agencies.
(c) Technology export and overseas investment
Upon November 15, 1990, the President shall --
(1) prohibit the export of technologies used to produce a class I
substance;
(2) prohibit direct or indirect investments by any person in
facilities designed to produce a class I or class II substance in
nations that are not parties to the Montreal Protocol; and
(3) direct that no agency of the government provide bilateral or
multilateral subsidies, aids, credits, guarantees, or insurance
programs, for the purpose of producing any class I substance.
(July 14, 1955, ch. 360, title VI, 614, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2668.)
The Clean Air Act Amendments of 1990, referred to in subsec. (b),
probably means Pub. L. 101-549, Nov. 15, 1990, 104 Stat. 2399. For
complete classification of this Act to the Code, see Short Title of 1990
Amendment note set out under section 7401 of this title and Tables.
42 USC -- 7671n. Authority of Administrator
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
If, in the Administrator's judgment, any substance, practice,
process, or activity may reasonably be anticipated to affect the
stratosphere, especially ozone in the stratosphere, and such effect may
reasonably be anticipated to endanger public health or welfare, the
Administrator shall promptly promulgate regulations respecting the
control of such substance, practice, process, or activity, and shall
submit notice of the proposal and promulgation of such regulation to the
Congress.
(July 14, 1955, ch. 360, title VI, 615, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2669.)
42 USC -- 7671o. Transfers among Parties to Montreal Protocol
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
Consistent with the Montreal Protocol, the United States may engage
in transfers with other Parties to the Protocol under the following
conditions:
(1) The United States may transfer production allowances to another
Party if, at the time of such transfer, the Administrator establishes
revised production limits for the United States such that the aggregate
national United States production permitted under the revised production
limits equals the lesser of (A) the maximum production level permitted
for the substance or substances concerned in the transfer year under the
Protocol minus the production allowances transferred, (B) the maximum
production level permitted for the substance or substances concerned in
the transfer year under applicable domestic law minus the production
allowances transferred, or (C) the average of the actual national
production level of the substance or substances concerned for the 3
years prior to the transfer minus the production allowances transferred.
(2) The United States may acquire production allowances from another
Party if, at the time of such transfer, the Administrator finds that the
other Party has revised its domestic production limits in the same
manner as provided with respect to transfers by the United States in
this subsection.
(b) Effect of transfers on production limits
The Administrator is authorized to reduce the production limits
established under this chapter as required as a prerequisite to
transfers under paragraph (1) of subsection (a) of this section or to
increase production limits established under this chapter to reflect
production allowances acquired under a transfer under paragraph (2) of
subsection (a) of this section.
(c) Regulations
The Administrator shall promulgate, within 2 years after November 15,
1990, regulations to implement this section.
(d) ''Applicable domestic law'' defined
In the case of the United States, the term ''applicable domestic
law'' means this chapter.
(July 14, 1955, ch. 360, title VI, 616, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2669.)
42 USC -- 7671p. International cooperation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
The President shall undertake to enter into international agreements
to foster cooperative research which complements studies and research
authorized by this subchapter, and to develop standards and regulations
which protect the stratosphere consistent with regulations applicable
within the United States. For these purposes the President through the
Secretary of State and the Assistant Secretary of State for Oceans and
International Environmental and Scientific Affairs, shall negotiate
multilateral treaties, conventions, resolutions, or other agreements,
and formulate, present, or support proposals at the United Nations and
other appropriate international forums and shall report to the Congress
periodically on efforts to arrive at such agreements.
(b) Assistance to developing countries
The Administrator, in consultation with the Secretary of State, shall
support global participation in the Montreal Protocol by providing
technical and financial assistance to developing countries that are
Parties to the Montreal Protocol and operating under article 5 of the
Protocol. There are authorized to be appropriated not more than
$30,000,000 to carry out this section in fiscal years 1991, 1992 and
1993 and such sums as may be necessary in fiscal years 1994 and 1995.
If China and India become Parties to the Montreal Protocol, there are
authorized to be appropriated not more than an additional $30,000,000 to
carry out this section in fiscal years 1991, 1992, and 1993.
(July 14, 1955, ch. 360, title VI, 617, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2669.)
42 USC -- 7671q. Miscellaneous provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of section 7416 of this title, requirements concerning
the areas addressed by this subchapter for the protection of the
stratosphere against ozone layer depletion shall be treated as
requirements for the control and abatement of air pollution. For
purposes of section 7418 of this title, the requirements of this
subchapter and corresponding State, interstate, and local requirements,
administrative authority, and process, and sanctions respecting the
protection of the stratospheric ozone layer shall be treated as
requirements for the control and abatement of air pollution within the
meaning of section 7418 of this title.
(July 14, 1955, ch. 360, title VI, 618, as added Nov. 15, 1990, Pub.
L. 101-549, title VI, 602(a), 104 Stat. 2670.)
42 USC -- CHAPTER 86 -- EARTHQUAKE HAZARDS REDUCTION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
7701. Congressional findings.
7702. Congressional statement of purpose.
7703. Definitions.
7704. National Earthquake Hazards Reduction Program.
(a) Establishment.
(b) Responsibilities of Program agencies.
7704a. Report on seismic safety property standards.
(a) Authority.
(b) Standards.
(c) Consultation.
(d) Reports.
7705. Office of Science and Technology Policy report.
7705a. Advisory Committee.
7705b. Seismic standards.
(a) Buildings.
(b) Lifelines.
7705c. Acceptance of gifts.
(a) Authority.
(b) Criteria.
7705d. Non-Federal cost sharing for supplemental funds.
7705e. Post-earthquake investigations program.
7706. Authorization of appropriations.
(a) General authorization for program.
(b) United States Geological Survey.
(c) National Science Foundation.
(d) National Institute of Standards and Technology.
(e) Funds for certain required adjustments.
(f) Availability of funds.
42 USC -- 7701. Congressional findings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Congress finds and declares the following:
(1) All 50 States are vulnerable to the hazards of earthquakes, and
at least 39 of them are subject to major or moderate seismic risk,
including Alaska, California, Hawaii, Illinois, Massachusetts, Missouri,
Montana, Nevada, New Jersey, New York, South Carolina, Utah, and
Washington. A large portion of the population of the United States
lives in areas vulnerable to earthquake hazards.
(2) Earthquakes have caused, and can cause in the future, enormous
loss of life, injury, destruction of property, and economic and social
disruption. With respect to future earthquakes, such loss, destruction,
and disruption can be substantially reduced through the development and
implementation of earthquake hazards reduction measures, including (A)
improved design and construction methods and practices, (B) land-use
controls and redevelopment, (C) prediction techniques and early-warning
systems, (D) coordinated emergency preparedness plans, and (E) public
education and involvement programs.
(3) An expertly staffed and adequately financed earthquake hazards
reduction program, based on Federal, State, local, and private research,
planning, decisionmaking, and contributions would reduce the risk of
such loss, destruction, and disruption in seismic areas by an amount far
greater than the cost of such program.
(4) A well-funded seismological research program in earthquake
prediction could provide data adequate for the design, of an operational
system that could predict accurately the time, place, magnitude, and
physical effects of earthquakes in selected areas of the United States.
(5) The geological study of active faults and features can reveal how
recently and how frequently major earthquakes have occurred on those
faults and how much risk they pose. Such long-term seismic risk
assessments are needed in virtually every aspect of earthquake hazards
management, whether emergency planning, public regulation, detailed
building design, insurance rating, or investment decision.
(6) The vulnerability of buildings, lifelines, public works, and
industrial and emergency facilities can be reduced through proper
earthquake resistant design and construction practices. The economy and
efficacy of such procedures can be substantially increased through
research and development.
(7) Programs and practices of departments and agencies of the United
States are important to the communities they serve; some functions,
such as emergency communications and national defense, and lifelines,
such as dams, bridges, and public works, must remain in service during
and after an earthquake. Federally owned, operated, and influenced
structures and lifelines should serve as models for how to reduce and
minimize hazards to the community.
(8) The implementation of earthquake hazards reduction measures
would, as an added benefit, also reduce the risk of loss, destruction,
and disruption from other natural hazards and manmade hazards, including
hurricanes, tornadoes, accidents, explosions, landslides, building and
structural cave-ins, and fires.
(9) Reduction of loss, destruction, and disruption from earthquakes
will depend on the actions of individuals, and organizations in the
private sector and governmental units at Federal, State, and local
levels. The current capability to transfer knowledge and information to
these sectors is insufficient. Improved mechanisms are needed to
translate existing information and research findings into reasonable and
usable specifications, criteria, and practices so that individuals,
organizations, and governmental units may make informed decisions and
take appropriate actions.
(10) Severe earthquakes are a worldwide problem. Since damaging
earthquakes occur infrequently in any one nation, international
cooperation is desirable for mutual learning from limited experiences.
(11) An effective Federal program in earthquake hazards reduction
will require input from and review by persons outside the Federal
Government expert in the sciences of earthquake hazards reduction and in
the practical application of earthquake hazards reduction measures.
(Pub. L. 95-124, 2, Oct. 7, 1977, 91 Stat. 1098; Pub. L. 101-614,
2, Nov. 16, 1990, 104 Stat. 3231.)
1990 -- Pars. (5) to (11). Pub. L. 101-614 added pars. (5) to (7),
struck out former pars. (5) and (6), and redesignated former pars. (7)
to (10) as (8) to (11), respectively. Prior to amendment, pars. (5)
and (6) read as follows:
''(5) An operational earthquake prediction system can produce
significant social, economic, legal, and political consequences.
''(6) There is a scientific basis for hypothesizing that major
earthquakes may be moderated, in at least some seismic areas, by
application of the findings of earthquake control and seismological
research.''
Section 1 of Pub. L. 101-614 provided that: ''This Act (enacting
sections 7705a to 7705e, amending this section and sections 7702 to
7705, and 7706 of this title, and enacting provisions set out as notes
under sections 7704, 7705b, and 7705e of this title) may be cited as the
'National Earthquake Hazards Reduction Program Reauthorization Act'.''
Section 1 of Pub. L. 95-124 provided: ''That this Act (enacting
this chapter) may be cited as the 'Earthquake Hazards Reduction Act of
1977'.''
Functions of President under Earthquake Hazards Reduction Act of 1977
delegated, transferred, or reassigned to Director of Federal Emergency
Management Agency pursuant to sections 1-104 and 4-204 of Ex. Ord. No.
12148, July 20, 1979, 44 F.R. 43239, set out as a note under section
2251 of the Appendix to Title 50, War and National Defense.
42 USC -- 7702. Congressional statement of purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
It is the purpose of the Congress in this chapter to reduce the risks
of life and property from future earthquakes in the United States
through the establishment and maintenance of an effective earthquake
hazards reduction program. The objectives of such program shall include
--
(1) the education of the public, including State and local officials,
as to earthquake phenomena, the identification of locations and
structures which are especially susceptible to earthquake damage, ways
to reduce the adverse consequences of an earthquake, and related
matters;
(2) the development of technologically and economically feasible
design and construction methods and procedures to make new and existing
structures, in areas of seismic risk, earthquake resistant, giving
priority to the development of such methods and procedures for power
generating plants, dams, hospitals, schools, public utilities and other
lifelines, public safety structures, high occupancy buildings, and other
structures which are especially needed in time of disaster;
(3) the implementation to the greatest extent practicable, in all
areas of high or moderate seismic risk, of a system (including
personnel, technology, and procedures) for predicting damaging
earthquakes and for identifying, evaluating, and accurately
characterizing seismic hazards;
(4) the development, publication, and promotion, in conjunction with
State and local officials and professional organizations, of model
building codes and other means to encourage consideration of information
about seismic risk in making decisions about land-use policy and
construction activity;
(5) the development, in areas of seismic risk, of improved
understanding of, and capability with respect to, earthquake-related
issues, including methods of mitigating the risks from earthquakes,
planning to prevent such risks, disseminating warnings of earthquakes,
organization emergency services, and planning for reconstruction and
redevelopment after an earthquake;
(6) the development of ways to increase the use of existing
scientific and engineering knowledge to mitigate earthquake hazards;
and
(7) the development of ways to assure the availability of affordable
earthquake insurance.
(Pub. L. 95-124, 3, Oct. 7, 1977, 91 Stat. 1099; Pub. L. 101-614,
3, Nov. 16, 1990, 104 Stat. 3231.)
1990 -- Pub. L. 101-614 inserted sentence at end, listing objectives
of program.
42 USC -- 7703. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this chapter, unless the context otherwise requires:
(1) The term ''includes'' and variants thereof should be read as if
the phrase ''but is not limited to'' were also set forth.
(2) The term ''Program'' means the National Earthquake Hazards
Reduction Program established under section 7704 of this title.
(3) The term ''seismic'' and variants thereof mean having to do with,
or caused by earthquakes.
(4) The term ''State'' means each of the States of the United States,
the District of Columbia, the Commonwealth of Puerto Rico, the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Mariana Islands,
and any other territory or possession of the United States.
(5) The term ''United States'' means, when used in a geographical
sense, all of the States as defined in paragraph (4) of this section.
(6) The term ''lifelines'' means public works and utilities,
including transportation facilities and infrastructure, oil and gas
pipelines, electrical power and communication facilities, and water
supply and sewage treatment facilities.
(7) The term ''Program agencies'' means the Federal Emergency
Management Agency, the United States Geological Survey, the National
Science Foundation, and the National Institute of Standards and
Technology.
(Pub. L. 95-124, 4, Oct. 7, 1977, 91 Stat. 1099; Pub. L. 101-614,
4, Nov. 16, 1990, 104 Stat. 3232.)
1990 -- Par. (2). Pub. L. 101-614, 4(1), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ''The term
'program' means the earthquake hazards reduction program established
under section 7704 of this title.''
Pars. (6), (7). Pub. L. 101-614, 4(2), added pars. (6) and (7).
42 USC -- 7704. National Earthquake Hazards Reduction Program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment
There is established a National Earthquake Hazards Reduction Program.
(b) Responsibilities of Program agencies
(1) Lead agency
The Federal Emergency Management Agency (hereafter in this chapter
referred to as the ''Agency'') shall have the primary responsibility for
planning and coordinating the Program. In carrying out this paragraph,
the Director of the Agency shall --
(A) prepare, in conjunction with the other Program agencies, an
annual budget for the Program to be submitted to the Office of
Management and Budget;
(B) ensure that the Program includes the necessary steps to promote
the implementation of earthquake hazard reduction measures by Federal,
State, and local governments, national standards and model building code
organizations, architects and engineers, and others with a role in
planning and constructing buildings and lifelines;
(C) prepare, in conjunction with the other Program agencies, a
written plan for the Program, which shall include specific tasks and
milestones for each Program agency, and which shall be submitted to the
Congress and updated at such times as may be required by significant
Program events, but in no event less frequently than every 3 years;
(D) prepare, in conjunction with the other Program agencies, a
biennial report, to be submitted to the Congress within 90 days after
the end of each even-numbered fiscal year, which shall describe the
activities and achievements of the Program during the preceding two
fiscal years; and
(E) request the assistance of Federal agencies other than the Program
agencies, as necessary to assist in carrying out this chapter.
The principal official carrying out the responsibilities described in
this paragraph shall be at a level no lower than that of Associate
Director.
(2) Federal Emergency Management Agency
(A) Program responsibilities
In addition to the lead agency responsibilities described in
paragraph (1), the Director of the Agency shall --
(i) operate a program of grants and technical assistance which would
enable States to develop preparedness and response plans, prepare
inventories and conduct seismic safety inspections of critical
structures and lifelines, update building and zoning codes and
ordinances to enhance seismic safety, increase earthquake awareness and
education, and encourage the development of multi-State groups for such
purposes;
(ii) prepare and execute, in conjunction with the Program agencies,
the Department of Education, other Federal agencies, and private sector
groups, a comprehensive earthquake education and public awareness
program, to include development of materials and their wide
dissemination to schools and the general public;
(iii) prepare and disseminate widely, with the assistance of the
National Institute of Standards and Technology, other Federal agencies,
and private sector groups, information on building codes and practices
for structures and lifelines;
(iv) develop, and coordinate the execution of, Federal interagency
plans to respond to an earthquake, with specific plans for each
high-risk area which ensure the availability of adequate emergency
medical resources, search and rescue personnel and equipment, and
emergency broadcast capability;
(v) develop approaches to combine measures for earthquake hazards
reduction with measures for reduction of other natural and technological
hazards; and
(vi) provide response recommendations to communities after an
earthquake prediction has been made under paragraph (3)(D).
In addition, the Director of the Agency may enter into cooperative
agreements or contracts with States and local jurisdictions to establish
demonstration projects on earthquake hazard mitigation, to link
earthquake research and mitigation efforts with emergency management
programs, or to prepare educational materials for national distribution.
(B) State assistance program criteria
In order to qualify for assistance under subparagraph (A)(i), a State
must --
(i) demonstrate that the assistance will result in enhanced seismic
safety in the State;
(ii) provide a share of the costs of the activities for which
assistance is being given, in accordance with subparagraph (C); and
(iii) meet such other requirements as the Director of the Agency
shall prescribe.
(C) Non-Federal cost sharing
(i) In the case of any State which has received, before October 1,
1990, a grant from the Agency for activities under this chapter which
included a requirement for cost sharing by matching such grant, any
grant obtained from the Agency for activities under subparagraph (A)(i)
after such date shall not include a requirement for cost sharing in an
amount greater than 50 percent of the cost of the project for which the
grant is made.
(ii) In the case of any State which has not received, before October
1, 1990, a grant from the Agency for activities under this chapter which
included a requirement for cost sharing by matching such grant, any
grant obtained from the Agency for activities under subparagraph (A)(i)
after such date --
(I) shall not include a requirement for cost sharing for the first
fiscal year of such a grant;
(II) shall not include a requirement for cost sharing in an amount
greater than 25 percent of the cost of the project for which the grant
is made for the second fiscal year of such grant, and any cost sharing
requirement may be satisfied through in-kind contributions;
(III) shall not include a requirement for cost sharing in an amount
greater than 35 percent of the cost of the project for which the grant
is made for the third fiscal year of such grant, and any cost sharing
requirement may be satisfied through in-kind contributions; and
(IV) shall not include a requirement for cost sharing in an amount
greater than 50 percent of the cost of the project for which the grant
is made for the fourth and subsequent fiscal years of such grant.
(3) United States Geological Survey
The United States Geological Survey shall conduct research necessary
to characterize and identify earthquake hazards, assess earthquake
risks, monitor seismic activity, and improve earthquake predictions. In
carrying out this paragraph, the Director of the United States
Geological Survey shall --
(A) conduct a systematic assessment of the seismic risks in each
region of the Nation prone to earthquakes, including, where appropriate,
the establishment and operation of intensive monitoring projects on
hazardous faults, seismic microzonation studies in urban and other
developed areas where earthquake risk is determined to be significant,
and engineering seismology studies;
(B) work with officials of State and local governments to ensure that
they are knowledgeable about the specific seismic risks in their areas;
(C) develop standard procedures, in consultation with the Agency, for
issuing earthquake predictions, including aftershock advisories;
(D) issue when necessary, and notify the Director of the Agency of,
an earthquake prediction or other earthquake advisory, which may be
evaluated by the National Earthquake Prediction Evaluation Council,
which shall be exempt from the requirements of section 10(a)(2) of the
Federal Advisory Committee Act when meeting for such purposes;
(E) establish, using existing facilities, a Center for the
International Exchange of Earthquake Information which shall --
(i) promote the exchange of information on earthquake research and
earthquake preparedness between the United States and other nations;
(ii) maintain a library containing selected reports, research papers,
and data produced through the Program;
(iii) answer requests from other nations for information on United
States earthquake research and earthquake preparedness programs; and
(iv) direct foreign requests to the agency involved in the Program
which is best able to respond to the request; and /1/
(F) operate a National Seismic Network; /2/
(G) support regional seismic networks, which shall complement the
National Seismic Network.
(4) National Science Foundation
The National Science Foundation shall be responsible for funding
research on earth sciences to improve the understanding of the causes
and behavior of earthquakes, on earthquake engineering, and on human
response to earthquakes. In carrying out this paragraph, the Director
of the National Science Foundation shall --
(A) encourage prompt dissemination of significant findings, sharing
of data, samples, physical collections, and other supporting materials,
and development of intellectual property so research results can be used
by appropriate organizations to mitigate earthquake damage;
(B) in addition to supporting individual investigators, support
university research consortia and centers for research in geosciences
and in earthquake engineering;
(C) work closely with the United States Geological Survey to identify
geographic regions of national concern that should be the focus of
targeted solicitations for earthquake-related research proposals;
(D) emphasize, in earthquake engineering research, development of
economically feasible methods to retrofit existing buildings and to
protect lifelines to mitigate earthquake damage; and
(E) support research that studies the political, economic, and social
factors that influence the implementation of hazard reduction measures.
(5) National Institute of Standards and Technology
The National Institute of Standards and Technology shall be
responsible for carrying out research and development to improve
building codes and standards and practices for structures and lifelines.
In carrying out this paragraph, the Director of the National Institute
of Standards and Technology shall --
(A) work closely with national standards and model building code
organizations, in conjunction with the Agency, to promote the
implementation of research results;
(B) promote better building practices among architects and engineers;
and
(C) work closely with national standards organizations to develop
seismic safety standards and practices for new and existing lifelines.
(Pub. L. 95-124, 5, Oct. 7, 1977, 91 Stat. 1099; Pub. L. 96-472,
title I, 101, Oct. 19, 1980, 94 Stat. 2257; Pub. L. 99-105, 5, 6,
Sept. 30, 1985, 99 Stat. 475; Pub. L. 100-252, 2, Feb. 29, 1988, 102
Stat. 18; Pub. L. 100-418, title V, 5115(c), Aug. 23, 1988, 102 Stat.
1433; Pub. L. 100-707, title I, 109(u), Nov. 23, 1988, 102 Stat. 4710;
Pub. L. 101-614, 5, Nov. 16, 1990, 104 Stat. 3232.)
Section 10(a)(2) of the Federal Advisory Committee Act, referred to
in subsec. (b)(3)(D), is section 10(a)(2) of Pub. L. 92-463, Oct. 6,
1972, 86 Stat. 774, which is set out in the Appendix to Title 5,
Government Organization and Employees.
1990 -- Pub. L. 101-614 amended section generally, substituting
present provisions consisting of subsecs. (a) and (b) for former
provisions which provided for: in subsec. (a), establishment of
program; in subsec. (b), duties of President and Director of Federal
Emergency Management Agency; in subsec. (c), objectives of program;
in subsec. (d), Federal participation; in subsec. (e), research
elements; in subsec. (f), mitigation elements; in subsec. (g), State
assistance; in subsec. (h), non-Federal participation; in subsec.
(i), study and recommendations on disaster relief; and in subsec. (j),
cost sharing.
1988 -- Subsec. (b)(2)(F). Pub. L. 100-418 substituted ''National
Institute of Standards and Technology'' for ''National Bureau of
Standards''.
Subsecs. (g), (i). Pub. L. 100-707 substituted ''Disaster Relief and
Emergency Assistance Act'' for ''Disaster Relief Act of 1974''.
Subsec. (j). Pub. L. 100-252 added subsec. (j).
1985 -- Subsec. (b)(2)(E). Pub. L. 99-105, 5, amended subpar. (E)
generally, substituting ''to be submitted to the Congress and updated at
such times as may be required by significant program events, but in no
event less frequently than every three years;'' for ''which plan will
recommend base and incremental budget options for the agencies to carry
out the elements and programs specified through at least 1985, and which
plan shall be completed by September 30, 1981, and transmitted to the
Congress and shall be updated annually; and''.
Subsec. (b)(2)(F), (G). Pub. L. 99-105, 6, added subpar. (F) and
redesignated former subpar. (F) as (G).
1980 -- Subsec. (a). Pub. L. 96-472, 101(a), inserted provisions
relating to non-Federal participation in par. (2), and substituted
provisions respecting the elements described in subsec. (f) of this
section, for provisions respecting the implementation plan described in
subsec. (f) of this section in par. (3).
Subsec. (b). Pub. L. 96-472, 101(b), substituted provisions setting
forth the duties of the President and the Director of the Federal
Emergency Management Agency with respect to the Program for provisions
setting forth the duties of the President with respect to the program
and plan.
Subsec. (d). Pub. L. 96-472, 101(c), substituted ''(1)(A)'' for
''(3)(B)'', ''Department of Commerce'' for ''National Bureau of
Standards'', and ''Federal Emergency Management Agency'' for ''National
Fire Prevention and Control Administration''.
Subsec. (e)(6). Pub. L. 96-472, 101(d), substituted ''potential''
for ''political''.
Subsec. (f). Pub. L. 96-472, 101(e), substituted in provision
preceding par. (1), provision directing that the mitigation elements of
the program are to be as specified in pars. (1) to (8) for provision
authorizing the establishment of a implementation plan, year-by-year
targets, and Federal and non-Federal roles, in par. (1), substituted
provision including as one of the mitigating elements, issuance of
earthquake predictions for provision including in the implementation
plan development of measures in preparing for earthquakes, actual
predictions, warnings, and insuring a comprehensive response to an
earthquake, added pars. (7) and (8), and struck out provision following
par. (8), that when the implementation plan developed by the President
contemplates specific action to be taken by a Federal agency,
department, or entity, and at the end of the 30-day period beginning on
the date the President submits such plan to the appropriate authorizing
committees of Congress and such action has not been initiated, the
President submit to such committees a report why such action has not
been taken.
Subsec. (i). Pub. L. 96-472, 101(f), added subsec. (i).
Section 14 of Pub. L. 101-614 provided that:
''(a) Study of Indirect Economic Losses. -- Within 12 months after
the date of enactment of this Act (Nov. 16, 1990), the Director of the
Federal Emergency Management Agency shall submit, to the Committee on
Science, Space, and Technology, the Committee on Interior and Insular
Affairs, and the Committee on Banking, Finance and Urban Affairs of the
House of Representatives, and to the Committee on Commerce, Science and
Transportation and the Committee on Banking, Housing, and Urban Affairs
of the Senate, a report on the results of a study on the impact and
repercussions of a catastrophic earthquake on local, regional, and
national economies. The Director of the Federal Emergency Management
Agency shall appoint, in consultation with the Department of the
Treasury, a panel of experts in relevant fields and activities to
undertake such study. In particular, the study shall evaluate the
repercussions and indirect economic impact of such an earthquake on --
''(1) financial markets;
''(2) the national banking system;
''(3) the insurance industry; and
''(4) the national energy distribution network;
and shall include an estimate of the ability of current disaster
assistance efforts and insurance coverage to allow recovery from the
economic losses caused by a catastrophic earthquake.
''(b) Study on Improving Earthquake Mitigation. -- Within 12 months
after the date of enactment of this Act (Nov. 16, 1990), the Director of
the Federal Emergency Management Agency shall submit, to the Committee
on Science, Space, and Technology, the Committee on Interior and Insular
Affairs, and the Committee on Banking, Finance and Urban Affairs of the
House of Representatives, and to the Committee on Commerce, Science, and
Transportation and the Committee on Banking, Housing, and Urban Affairs
of the Senate, a report on the results of a study on the adequacy of
preparation and response capabilities for reducing and recovering from
losses caused by a catastrophic earthquake. The Director of the Federal
Emergency Management Agency shall appoint, in consultation with the
United States Geological Survey, the National Institute of Standards and
Technology, and the National Science Foundation, a panel of experts in
relevant fields and activities to undertake such study. The study
required under subsection ((a)) shall
''(1) identify impediments to the effective implementation of
Federal, State, and local programs of earthquake hazard mitigation,
including an analysis of the appropriate roles for Federal, State, and
local governments and the private sector in preparing for and responding
to the economic and social consequences of earthquakes; and
''(2) consider the effectiveness, and efficiencies of alternative
ways for Federal, State, and local governments to reduce the economic
impact of earthquakes, including earthquake hazard mitigation, disaster
assistance, earthquake insurance for homeowners and small businesses,
and earthquake reinsurance for general commercial liabilities.''
Pub. L. 100-570, title I, 115, Oct. 31, 1988, 102 Stat. 2871,
provided that:
''(a) The National Academy of Sciences shall conduct a study of
earthquake engineering activities being carried out by the Foundation
and other Federal agencies under the Earthquake Hazards Reduction Act of
1977 (42 U.S.C. 7701 et seq.). Such study shall include --
''(1) an assessment of the adequacy of each agency's current Federal
earthquake engineering efforts, including those designed to increase the
implementation of new techniques; the need for specialized research
facilities, including large-scale facilities; the division of
responsibilities among the various Federal agencies; and recommended
levels of funding that the Foundation and other agencies should provide,
in the form of grants to individuals, groups, and centers, to
non-Federal researchers principally engaged in earthquake engineering
research; and
''(2) recommendations, if any, of the National Academy of Sciences
for improvements in the current Federal efforts in the area of
earthquake engineering research.
''(b) The results of the study required by subsection (a) of this
section shall be reported to the Congress on or before the expiration of
the 12-month period following the date of enactment of this Act (Oct.
31, 1988).
''(c) In carrying out such study, the National Academy of Sciences is
authorized to call upon any agency, department, or other instrumentality
or entity of the United States for cooperation, and such agency,
department, instrumentality, or entity shall provide such cooperation.''
Ex. Ord. No. 12699, Jan. 5, 1990, 55 F.R. 835, provided:
By the authority vested in me as President by the Constitution and
laws of the United States of America, and in furtherance of the
Earthquake Hazards Reduction Act of 1977, as amended (42 U.S.C. 7701 et
seq.), which requires that Federal preparedness and mitigation
activities are to include ''development and promulgation of
specifications, building standards, design criteria, and construction
practices to achieve appropriate earthquake resistance for new . . .
structures,'' and ''an examination of alternative provisions and
requirements for reducing earthquake hazards through Federal and
federally financed construction, loans, loan guarantees, and licenses.
. . .'' (42 U.S.C. 7704(f)(3, 4)), it is hereby ordered as follows:
Section 1. Requirements for Earthquake Safety of New Federal
Buildings.
The purposes of these requirements are to reduce risks to the lives
of occupants of buildings owned by the Federal Government and to persons
who would be affected by the failures of Federal buildings in
earthquakes, to improve the capability of essential Federal buildings to
function during or after an earthquake, and to reduce earthquake losses
of public buildings, all in a cost-effective manner. A building means
any structure, fully or partially enclosed, used or intended for
sheltering persons or property.
Each Federal agency responsible for the design and construction of
each new Federal building shall ensure that the building is designed and
constructed in accord with appropriate seismic design and construction
standards. This requirement pertains to all building projects for which
development of detailed plans and specifications is initiated subsequent
to the issuance of the order. Seismic design and construction standards
shall be adopted for agency use in accord with sections 3(a) and 4(a) of
this order.
Sec. 2. Federally Leased, Assisted, or Regulated Buildings.
The purposes of these requirements are to reduce risks to the lives
of occupants of buildings leased for Federal uses or purchased or
constructed with Federal assistance, to reduce risks to the lives of
persons who would be affected by earthquake failures of federally
assisted or regulated buildings, and to protect public investments, all
in a cost-effective manner. The provisions of this order shall apply to
all the new construction activities specified in the subsections below.
(a) Space Leased for Federal Occupancy. Each Federal agency
responsible for the construction and lease of a new building for Federal
use shall ensure that the building is designed and constructed in accord
with appropriate seismic design and construction standards. This
requirement pertains to all leased building projects for which the
agreement covering development of detailed plans and specifications is
effected subsequent to the issuance of this order. Local building codes
shall be used in design and construction by those concerned with such
activities in accord with section 3(a) and 3(c) of this order and
augmented when necessary to achieve appropriate seismic design and
construction standards.
(b) Federal Domestic Assistance Programs. Each Federal agency
assisting in the financing, through Federal grants or loans, or
guaranteeing the financing, through loan or mortgage insurance programs,
of newly constructed buildings shall plan, and shall initiate no later
than 3 years subsequent to the issuance of this order, measures
consistent with section 3(a) of this order, to assure appropriate
consideration of seismic safety.
(c) Federally Regulated Buildings. Each Federal agency with generic
responsibility for regulating the structural safety of buildings shall
plan to require use of appropriate seismic design and construction
standards for new buildings within the agency's purview. Implementation
of the plan shall be initiated no later than 3 years subsequent to the
issuance of this order.
Sec. 3. Concurrent Requirements. (a) In accord with Office of
Management and Budget Circular A-119 of January 17, 1980, entitled
''Federal Participation in the Development and Use of Voluntary
Standards,'' nationally recognized private sector standards and
practices shall be used for the purposes identified in sections 1 and 2
above unless the responsible agency finds that none is available that
meets its requirements. The actions ordered herein shall consider the
seismic hazards in various areas of the country to be as shown in the
most recent edition of the American National Standards Institute
Standards A58, Minimum Design Loans for Buildings and Other Structures,
or subsequent maps adopted for Federal use in accord with this order.
Local building codes determined by the responsible agency or by the
Interagency Committee for Seismic Safety in Construction to provide
adequately for seismic safety, or special seismic standards and
practices required by unique agency mission needs, may be used.
(b) All orders, regulations, circulars, or other directives issued,
and all other actions taken prior to the date of this order that meet
the requirements of this order, are hereby confirmed and ratified and
shall be deemed to have been issued under this order.
(c) Federal agencies that are as of this date requiring seismic
safety levels that are higher than those imposed by this order in their
assigned new building construction programs shall continue to maintain
in force such levels.
(d) Nothing in this order shall apply to assistance provided for
emergency work essential to save lives and protect property and public
health and safety, performed pursuant to Sections 402, 403, 502, and 503
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Stafford Act) (42 U.S.C. 5170a, 5170b, 5192, and 5193), or for
temporary housing assistance programs and individual and family grants
performed pursuant to Sections 408 and 411 of the Stafford Act (42
U.S.C. 5174 and 5178). However, this order shall apply to other
provisions of the Stafford Act (42 U.S.C. 5121 et seq.) after a
presidentially declared major disaster or emergency when assistance
actions involve new construction or total replacement of a building.
Grantees and subgrantees shall be encouraged to adopt the standards
established in section 3(a) of this order for use when the construction
does not involve Federal funding as well as when Federal Emergency
Management Agency (FEMA) funding applies.
Sec. 4. Agency Responsibilities. (a) The Director of the Federal
Emergency Management Agency shall be responsible for reporting to the
President on the execution of this order and providing support for the
secretariat of the Interagency Committee on Seismic Safety in
Construction (ICSSC). The ICSSC, using consensus procedures, shall be
responsible to FEMA for the recommendation for adoption of
cost-effective seismic design and construction standards and practices
required by sections 1 and 2 of this order. Participation in ICSSC
shall be open to all agencies with programs affected by this order.
(b) To the extent permitted by law, each agency shall issue or amend
existing regulations or procedures to comply with this order within 3
years of its issuance and plan for their implementation through the
usual budget process. Thereafter, each agency shall review, within a
period not to exceed 3 years, its regulations or procedures to assess
the need to incorporate new or revised standards and practices.
Sec. 5. Reporting. The Federal Emergency Management Agency shall
request, from each agency affected by this order, information on the
status of its procedures, progress in its implementation plan, and the
impact of this order on its operations. The FEMA shall include an
assessment of the execution of this order in its annual report to the
Congress on the National Earthquake Hazards Reduction Program.
Sec. 6. Judicial Review. Nothing in this order is intended to create
any right or benefit, substantive or procedural, enforceable at law by a
party against the United States, its agencies, its officers, or any
person.
George Bush.
/1/ So in original. The word ''and'' probably should not appear.
/2/ So in original. Probably should be followed by ''and''.
42 USC -- 7704a. Report on seismic safety property standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority
The Secretary of Housing and Urban Development (in this section
referred to as the ''Secretary'') shall assess the risk of
earthquake-related damage to properties assisted under programs
administered by the Secretary and shall develop seismic safety standards
for such properties. This section may not be construed to prohibit the
Secretary from deferring to local building codes that meet the
requirements of the seismic safety standards developed under this
section.
(b) Standards
The standards shall be designed to reduce the risk of loss of life to
building occupants to the maximum extent feasible and to reduce the risk
of shake-related property damage to the maximum extent practicable.
(c) Consultation
In carrying out this section, the Secretary shall consult with the
Director of the Federal Emergency Management Agency and may utilize the
resources under the National Earthquake Hazards Reduction Program
(established under the Earthquake Hazards Reduction Act of 1977 (42
U.S.C. 7701 et seq.)) and any other resources as may be required to
carry out the activities under this section.
(d) Reports
(1) Submission and contents
The Secretary shall submit a report to the Congress, not less than
biennially, containing a statement of the findings of the risk
assessment study conducted under this section, including risk assessment
of properties located in seismic risk zones and a compilation of the
standards developed pursuant to this section. The report shall also
include a statement of the activities undertaken by the Secretary to
carry out this section and the amount and sources of any funds expended
by the Secretary for such purposes. The report shall also include a
statement of the activities undertaken by the Secretary to carry out the
requirements of Executive Order No. 12699 (January 5, 1990) and the
amount and sources of any funds expended by the Secretary for such
purposes.
(2) Initial submission
The first report required under this subsection shall be submitted
not later than the expiration of the 18-month period beginning on
November 28, 1990.
(Pub. L. 101-625, title IX, 947, Nov. 28, 1990, 104 Stat. 4416.)
The Earthquake Hazards Reduction Act of 1977, referred to in subsec.
(c), is Pub. L. 95-124, Oct. 7, 1977, 91 Stat. 1098, as amended,
which is classified generally to this chapter ( 7701 et seq.). For
complete classification of this Act to the Code, see Short Title note
set out under section 7701 of this title and Tables.
Executive Order No. 12699, referred to in subsec. (d)(1), is set
out as a note under section 7704 of this title.
Section was enacted as part of the Cranston-Gonzalez National
Affordable Housing Act, and not as part of the Earthquake Hazards
Reduction Act of 1977 which comprises this chapter.
42 USC -- 7705. Office of Science and Technology Policy report
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Director of the Office of Science and Technology Policy shall,
within 3 months after November 16, 1990, report to the Committee on
Commerce, Science, and Transportation of the Senate and to the Committee
on Science, Space, and Technology and the Committee on Interior and
Insular Affairs of the House of Representatives with respect to how the
Office of Science and Technology Policy can play a role in interagency
coordination, planning, and operation of the Program.
(Pub. L. 95-124, 6, Oct. 7, 1977, 91 Stat. 1102; Pub. L. 96-472,
title I, 102(a), Oct. 19, 1980, 94 Stat. 2259; Pub. L. 101-614, 6,
Nov. 16, 1990, 104 Stat. 3236.)
1990 -- Pub. L. 101-614 amended section generally. Prior to
amendment, section read as follows: ''The President shall, within
ninety days after the end of each fiscal year, submit an annual report
to the appropriate authorizing committees in the Congress describing the
status of the program, and describing and evaluating progress achieved
during the preceding fiscal year in reducing the risks of earthquake
hazards. Each such report shall include a copy of the program plan
described in section 7704(b)(2)(E) of this title and any recommendations
for legislation and other action the President deems necessary and
appropriate.''
1980 -- Pub. L. 96-472 inserted provisions relating to the copy of
the program plan described in section 7704(b)(2)(E) of this title.
42 USC -- 7705a. Advisory Committee
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There is established a National Earthquake Hazards Reduction Program
Advisory Committee (hereafter in this chapter referred to as the
''Advisory Committee''), which shall advise the Program agencies on
planning and implementing the Program. The Director of the Agency
shall, in consultation with the directors of the Program agencies,
determine the number of members on the Advisory Committee and the
duration of their terms, and appoint the Chairman and Members of the
Advisory Committee. The Advisory Committee shall have balanced
representation of State and local governments, the design professions,
the research community, business and industry, and the general public.
The Advisory Committee shall meet at the call of the Chairman, but in no
event less often than every 6 months. The Advisory Committee shall
submit a written report directly to the Congress, without review by the
Office of Management and Budget or any other agency, by January 31 of
each calendar year beginning after November 16, 1990, which shall
describe any recommendations the Advisory Committee has made to the
Program agencies during the preceding year. Members of the Advisory
Committee shall serve without compensation but may receive reimbursement
for expenses. All expenses of the Advisory Committee shall be borne by
the Agency. The Advisory Committee shall expire September 30, 1993.
(Pub. L. 95-124, 7, as added Pub. L. 101-614, 7(2), Nov. 16, 1990,
104 Stat. 3236.)
42 USC -- 7705b. Seismic standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Buildings
(1) Adoption of standards
The President shall adopt, not later than December 1, 1994, standards
for assessing and enhancing the seismic safety of existing buildings
constructed for or leased by the Federal Government which were designed
and constructed without adequate seismic design and construction
standards. Such standards shall be developed by the Interagency
Committee on Seismic Safety in Construction, whose chairman is the
Director of the National Institute of Standards and Technology or his
designee, and which shall work in consultation with appropriate private
sector organizations.
(2) Report to Congress
The President shall report to the Congress, not later than December
1, 1994, on how the standards adopted under paragraph (1) could be
applied with respect to buildings --
(A) for which Federal financial assistance has been obtained through
grants, loans, financing guarantees, or loan or mortgage insurance
programs; or
(B) the structural safety of which is regulated by a Federal agency.
(3) Regulations
The President shall ensure the issuance, before February 1, 1993, by
all Federal agencies of final regulations required by section 4(b) of
Executive Order numbered 12699, issued January 5, 1990.
(b) Lifelines
The Director of the Agency, in consultation with the Director of the
National Institute of Standards and Technology, shall submit to the
Congress, not later than June 30, 1992, a plan, including precise
timetables and budget estimates, for developing and adopting, in
consultation with appropriate private sector organizations, design and
construction standards for lifelines. The plan shall include
recommendations of ways Federal regulatory authority could be used to
expedite the implementation of such standards.
(Pub. L. 95-124, 8, as added Pub. L. 101-614, 8(a), Nov. 16, 1990,
104 Stat. 3237.)
Executive Order numbered 12699, referred to in subsec. (a)(3), is
set out as a note under section 7704 of this title.
Section 8(b) of Pub. L. 101-614 provided that: ''The Comptroller
General shall, not later than 18 months after the date of enactment of
this Act (Nov. 16, 1990), report to the Committee on Commerce, Science,
and Transportation of the Senate and to the Committee on Interior and
Insular Affairs and the Committee on Science, Space, and Technology of
the House of Representatives on the vulnerability of buildings owned and
leased by the Federal Government and on the efforts of Federal agencies
to improve the seismic resistance of the buildings they own or lease.
For each such agency, the Comptroller General shall enumerate the number
of buildings owned or leased by the agency, the seriousness of the
seismic risk to such buildings, and the value of the buildings at risk.
The Comptroller General shall tabulate the expenditures each such agency
has devoted to reducing earthquake damage and estimate the total
expenditure necessary to address the problem adequately.''
42 USC -- 7705c. Acceptance of gifts
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority
In furtherance of the purposes of this chapter, the Director of the
Agency may accept and use bequests, gifts, or donations of services,
money, or property, notwithstanding section 1342 of title 31.
(b) Criteria
The Director of the Agency shall establish by regulation criteria for
determining whether to accept bequests, gifts, or donations of services,
money, or property. Such criteria shall take into consideration whether
the acceptance of the bequest, gift, or donation would reflect
unfavorably on the Director's ability to carry out his responsibilities
in a fair and objective manner, or would compromise the integrity of, or
the appearance of the integrity of, the Program or any official involved
in administering the Program.
(Pub. L. 95-124, 9, as added Pub. L. 101-614, 9, Nov. 16, 1990, 104
Stat. 3238.)
In subsec. (a), ''section 1342 of title 31'' was substituted for
''section 3679 of the Revised Statutes (31 U.S.C. 1342)'' on authority
of Pub. L. 97-258, 4(b), Sept. 13, 1982, 96 Stat. 1067, the first
section of which enacted Title 31, Money and Finance.
42 USC -- 7705d. Non-Federal cost sharing for supplemental funds
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
A grant under this chapter to a State from the Agency that is made
with funds appropriated under the Fiscal Year 1990 Dire Emergency
Supplemental to Meet the Needs of Natural Disasters of National
Significance (Public Law 101-130; 103 Stat. 775) shall not include a
requirement for cost sharing in an amount greater than 25 percent of the
cost of the project for which the grant is made, and any cost sharing
requirement may be satisfied through in-kind contributions.
(Pub. L. 95-124, 10, as added Pub. L. 101-614, 10, Nov. 16, 1990,
104 Stat. 3238.)
The Fiscal Year 1990 Dire Emergency Supplemental to Meet the Needs of
Natural Disasters of National Significance, referred to in text, is
section 108 of Pub. L. 101-100, as added by Pub. L. 101-130, Oct. 26,
1989, 103 Stat. 775, which is not classified to the Code.
42 USC -- 7705e. Post-earthquake investigations program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There is established within the United States Geological Survey a
post-earthquake investigations program, the purpose of which is to
investigate major earthquakes, so as to learn lessons which can be
applied to reduce the loss of lives and property in future earthquakes.
The United States Geological Survey, in consultation with each Program
agency, shall organize investigations to study the implications of the
earthquake in the areas of responsibility of each Program agency. The
investigations shall begin as rapidly as possible and may be conducted
by grantees and contractors. The Program agencies shall ensure that the
results of investigations are disseminated widely. The Director of the
Survey is authorized to utilize earthquake expertise from the Agency,
the National Science Foundation, the National Institute of Standards and
Technology, other Federal agencies, and private contractors, on a
reimbursable basis, in the conduct of such earthquake investigations.
At a minimum, investigations under this section shall include --
(1) analysis by the National Science Foundation and the United States
Geological Survey of the causes of the earthquake and the nature of the
resulting ground motion;
(2) analysis by the National Science Foundation and the National
Institute of Standards and Technology of the behavior of structures and
lifelines, both those that were damaged and those that were undamaged;
and
(3) analysis by each of the Program agencies of the effectiveness of
the earthquake hazards mitigation programs and actions relating to its
area of responsibility under the Program, and how those programs and
actions could be strengthened.
(Pub. L. 95-124, 11, as added Pub. L. 101-614, 11(a), Nov. 16,
1990, 104 Stat. 3239.)
Section 11(b) of Pub. L. 101-614 provided that: ''The Director of
the Federal Emergency Management Agency in consultation with the other
agencies of the National Earthquake Hazards Reduction Program shall, not
later than one year after the date of enactment of this Act (Nov. 16,
1990), report to the Committee on Commerce, Science, and Transportation
and the Committee on Appropriations of the Senate and to the Committee
on Interior and Insular Affairs, the Committee on Science, Space, and
Technology, and the Committee on Appropriations of the House of
Representatives on possible options for funding a program for
post-earthquake investigations. Such report, at a minimum, shall
consider funding such a program either by setting aside a percentage of
disaster relief funds provided by the Federal Emergency Management
Agency after a major earthquake or by a revolving fund. The report
shall include a recommendation on how the funding for such
investigations should be allocated among the other Program agencies.''
42 USC -- 7706. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General authorization for program
(1) There are authorized to be appropriated to the President to carry
out the provisions of sections 7704 and 7705 of this title (in addition
to any authorizations for similar purposes included in other Acts and
the authorizations set forth in subsections (b) and (c) of this
section), not to exceed $1,000,000 for the fiscal year ending September
30, 1978, not to exceed $2,000,000 for the fiscal year ending September
30, 1979, and not to exceed $2,000,000 for the fiscal year ending
September 30, 1980.
(2) There are authorized to be appropriated to the Director to carry
out the provisions of sections 7704 and 7705 of this title for the
fiscal year ending September 30, 1981 --
(A) $1,000,000 for continuation of the Interagency Committee on
Seismic Safety in Construction and the Building Seismic Safety Council
programs,
(B) $1,500,000 for plans and preparedness for earthquake disasters,
(C) $500,000 for prediction response planning,
(D) $600,000 for architectural and engineering planning and practice
programs,
(E) $1,000,000 for development and application of a public education
program,
(F) $3,000,000 for use by the National Science Foundation in addition
to the amount authorized to be appropriated under subsection (c) of this
section, which amount includes $2,400,000 for earthquake policy research
and $600,000 for the strong ground motion element of the siting program,
and
(G) $1,000,000 for use by the Center for Building Technology,
National Institute of Standards and Technology in addition to the amount
authorized to be appropriated under subsection (d) of this section for
earthquake activities in the Center.
(3) There are authorized to be appropriated to the Director for the
fiscal year ending September 30, 1982, $2,000,000 to carry out the
provisions of sections 7704 and 7705 of this title.
(4) There are authorized to be appropriated to the Director, to carry
out the provisions of sections 7704 and 7705 of this title, $1,281,000
for the fiscal year ending September 30, 1983.
(5) There are authorized to be appropriated to the Director, to carry
out the provisions of sections 7704 and 7705 of this title, for the
fiscal year ending September 30, 1984, $3,705,000, and for the fiscal
year ending September 30, 1985, $6,096,000.
(6) There are authorized to be appropriated to the Director, to carry
out the provisions of sections 7704 and 7705 of this title, for the
fiscal year ending September 30, 1986, $5,596,000, and for the fiscal
year ending September 30, 1987, $5,848,000.
(7) There are authorized to be appropriated to the Director, to carry
out this chapter, $5,778,000 for the fiscal year ending September 30,
1988, $5,788,000 for the fiscal year ending September 30, 1989,
$8,798,000 for the fiscal year ending September 30, 1990, $14,750,000
for the fiscal year ending September 30, 1991, $19,000,000 for the
fiscal year ending September 30, 1992, and $22,000,000 for the fiscal
year ending September 30, 1993.
(b) United States Geological Survey
There are authorized to be appropriated to the Secretary of the
Interior for purposes for carrying out, through the Director of the
United States Geological Survey, the responsibilities that may be
assigned to the Director under this chapter not to exceed $27,500,000
for the fiscal year ending September 30, 1978; not to exceed
$35,000,000 for the fiscal year ending September 30, 1979; not to
exceed $40,000,000 for the fiscal year ending September 30, 1980;
$32,484,000 for the fiscal year ending September 30, 1981; $34,425,000
for the fiscal year ending September 30, 1982; $31,843,000 for the
fiscal year ending September 30, 1983; $35,524,000 for the fiscal year
ending September 30, 1984; $37,300,200 for the fiscal year ending
September 30, 1985 /1/ $35,578,000 for the fiscal year ending September
30, 1986; $37,179,000 for the fiscal year ending September 30, 1987;
$38,540,000 for the fiscal year ending September 30, 1988; $41,819,000
for the fiscal year ending September 30, 1989; $55,283,000 for the
fiscal year ending September 30, 1990, of which $8,000,000 shall be for
earthquake investigations under section 7705e of this title;
$50,000,000 for the fiscal year ending September 30, 1991; $54,500,000
for the fiscal year ending September 30, 1992; and $62,500,000 for the
fiscal year ending September 30, 1993.
(c) National Science Foundation
To enable the Foundation to carry out responsibilities that may be
assigned to it under this chapter, there are authorized to be
appropriated to the Foundation not to exceed $27,500,000 for the fiscal
year ending September 30, 1978; not to exceed $35,000,000 for the
fiscal year ending September 30, 1979; not to exceed $40,000,000 for
the fiscal year ending September 30, 1980; $26,600,000 for the fiscal
year ending September 30, 1981; $27,150,000 for the fiscal year ending
September 30, 1982; $25,000,000 for the fiscal year ending September
30, 1983; $25,800,000 for the fiscal year ending September 30, 1984;
$28,665,000 for the fiscal year ending September 30, 1985 /1/
$27,760,000 for the fiscal year ending September 30, 1986; $29,009,000
for the fiscal year ending September 30, 1987; $28,235,000 for the
fiscal year ending September 30, 1988; $31,634,000 for the fiscal year
ending September 30, 1989; $38,454,000 for the fiscal year ending
September 30, 1990. Of the amounts authorized for Engineering under
section 101(d)(1)(B) of the National Science Foundation Authorization
Act of 1988, $24,000,000 is authorized for carrying out this chapter for
the fiscal year ending September 30, 1991, and of the amounts authorized
for Geosciences /2/
under section 101(d)(1)(D) of the National Science Foundation
Authorization Act of 1988, $13,000,000 is authorized for carrying out
this chapter for the fiscal year ending September 30, 1991. Of the
amounts authorized for Research and Related Activities under section
101(e)(1) of the National Science Foundation Authorization Act of 1988,
$29,000,000 is authorized for engineering research under this chapter,
and $14,750,000 is authorized for geosciences research under this
chapter, for the fiscal year ending September 30, 1992. Of the amounts
authorized for Research and Related Activities under section 101(f)(1)
of the National Science Foundation Authorization Act of 1988,
$34,500,000 is authorized for engineering research under this chapter,
and $17,500,000 is authorized for geosciences research under this
chapter, for the fiscal year ending September 30, 1993.
(d) National Institute of Standards and Technology
To enable the National Institute of Standards and Technology to carry
out responsibilities that may be assigned to it under this chapter,
there are authorized to be appropriated $425,000 for the fiscal year
ending September 30, 1981; $425,000 for the fiscal year ending
September 30, 1982; $475,000 for the fiscal year ending September 30,
1983; $475,000 for the fiscal year ending September 30, 1984; $498,750
for the fiscal year ending September 30, 1985 /1/ $499,000 for the
fiscal year ending September 30, 1986; $521,000 for the fiscal year
ending September 30, 1987; $525,000 for the fiscal year ending
September 30, 1988; $525,000 for the fiscal year ending September 30,
1989; $2,525,000 for the fiscal year ending September 30, 1990;
$1,000,000 for the fiscal year ending September 30, 1991; $3,000,000
for the fiscal year ending September 30, 1992; and $4,750,000 for the
fiscal year ending September 30, 1993.
(e) Funds for certain required adjustments
For each of the fiscal years ending September 30, 1982, September 30,
1983, September 30, 1984, and September 30, 1985, there are authorized
to be appropriated such further sums as may be necessary for adjustments
required by law in salaries, pay, retirement, and employee benefits
incurred in the conduct of activities for which funds are authorized by
the preceding provisions of this section.
(f) Availability of funds
Funds appropriated for fiscal years 1991, 1992, and 1993 pursuant to
this section shall remain available until expended.
(Pub. L. 95-124, 12, formerly 7, Oct. 7, 1977, 91 Stat. 1102; Pub.
L. 96-472, title I, 103, Oct. 19, 1980, 94 Stat. 2259; Pub. L. 97-80,
title I, 101, Nov. 20, 1981, 95 Stat. 1081; Pub. L. 97-464, title I,
101, Jan. 12, 1983, 96 Stat. 2533; Pub. L. 98-241, title I, 101, Mar.
22, 1984, 98 Stat. 95; Pub. L. 99-105, 1-4, Sept. 30, 1985, 99 Stat.
475; Pub. L. 100-252, 1, Feb. 29, 1988, 102 Stat. 18; Pub. L.
100-418, title V, 5115(c), Aug. 23, 1988, 102 Stat. 1433; renumbered
12 and amended Pub. L. 101-614, 7(1), 12, Nov. 16, 1990, 104 Stat.
3236, 3240.)
Section 101(d)(1)(B), (D), (e)(1), and (f)(1) of the National Science
Foundation Authorization Act of 1988, referred to in subsec. (c), is
section 101(d)(1)(B), (D), (e)(1), and (f)(1) of Pub. L. 100-570, Oct.
31, 1988, 102 Stat. 2865, 2866, which is not classified to the Code.
1990 -- Subsec. (a)(7). Pub. L. 101-614, 12(1), substituted ''carry
out this chapter'' for ''carry out the provisions of sections 7704 and
7705 of this title'', substituted ''$8,798,000'' for ''and $5,798,000'',
and inserted before period at end '', $14,750,000 for the fiscal year
ending September 30, 1991, $19,000,000 for the fiscal year ending
September 30, 1992, and $22,000,000 for the fiscal year ending September
30, 1993''.
Subsec. (b). Pub. L. 101-614, 12(2), substituted ''$55,283,000'' for
''and $43,283,000'' and inserted before period at end '', of which
$8,000,000 shall be for earthquake investigations under section 7705e of
this title; $50,000,000 for the fiscal year ending September 30, 1991;
$54,500,000 for the fiscal year ending September 30, 1992; and
$62,500,000 for the fiscal year ending September 30, 1993''.
Subsec. (c). Pub. L. 101-614, 12(3), substituted ''$38,454,000'' for
''and $35,454,000'' and inserted at end ''Of the amounts authorized for
Engineering under section 101(d)(1)(B) of the National Science
Foundation Authorization Act of 1988, $24,000,000 is authorized for
carrying out this chapter for the fiscal year ending September 30, 1991,
and of the amounts authorized for Geosciences under section 101(d)(1)(D)
of the National Science Foundation Authorization Act of 1988,
$13,000,000 is authorized for carrying out this chapter for the fiscal
year ending September 30, 1991. Of the amounts authorized for Research
and Related Activities under section 101(e)(1) of the National Science
Foundation Authorization Act of 1988, $29,000,000 is authorized for
engineering research under this chapter, and $14,750,000 is authorized
for geosciences research under this chapter, for the fiscal year ending
September 30, 1992. Of the amounts authorized for Research and Related
Activities under section 101(f)(1) of the National Science Foundation
Authorization Act of 1988, $34,500,000 is authorized for engineering
research under this chapter, and $17,500,000 is authorized for
geosciences research under this chapter, for the fiscal year ending
September 30, 1993.''
Subsec. (d). Pub. L. 101-614, 12(4), substituted ''National
Institute of Standards and Technology'' for ''National Bureau of
Standards'' in heading and for ''Bureau'' in text, substituted
''$2,525,000'' for ''and $525,000'', and inserted before period at end
''; $1,000,000 for the fiscal year ending September 30, 1991;
$3,000,000 for the fiscal year ending September 30, 1992; and
$4,750,000 for the fiscal year ending September 30, 1993''.
Subsec. (f). Pub. L. 101-614, 12(5), added subsec. (f).
1988 -- Subsec. (a)(2)(G). Pub. L. 100-418 substituted
''Institute''for ''Bureau''.
Subsec. (a)(7). Pub. L. 100-252, 1(a), added par. (7).
Subsec. (b). Pub. L. 100-252, 1(b), struck out ''and'' after
''1986;'' and inserted ''; $38,540,000 for the fiscal year ending
September 30, 1988; $41,819,000 for the fiscal year ending September
30, 1989; and $43,283,000 for the fiscal year ending September 30,
1990''.
Subsec. (c). Pub. L. 100-252, 1(c), struck out ''and'' after
''1986;'' and inserted ''; $28,235,000 for the fiscal year ending
September 30, 1988; $31,634,000 for the fiscal year ending September
30, 1989; and $35,454,000 for the fiscal year ending September 30,
1990''.
Subsec. (d). Pub. L. 100-252, 1(d), struck out ''and'' after
''1986;'' and inserted ''; $525,000 for the fiscal year ending
September 30, 1988; $525,000 for the fiscal year ending September 30,
1989; and $525,000 for the fiscal year ending September 30, 1990''.
1985 -- Subsec. (a)(6). Pub. L. 99-105, 1, added par. (6).
Subsec. (b). Pub. L. 99-105, 2, substituted a semicolon for '',
and'' after ''1984'' and inserted ''$35,578,000 for the fiscal year
ending September 30, 1986; and $37,179,000 for the fiscal year ending
September 30, 1987''.
Subsec. (c). Pub. L. 99-105, 3, struck out ''and'' after ''1984;''
and inserted ''$27,760,000 for the fiscal year ending September 30,
1986; and $20,009,000 for the fiscal year ending September 30, 1987''.
Subsec. (d). Pub. L. 99-105, 4, struck out ''and'' after ''1984;''
and inserted ''$499,000 for the fiscal year ending September 30, 1986;
and $521,000 for the fiscal year ending September 30, 1987''.
1984 -- Subsec. (a). Pub. L. 98-241, 101(a), added par. (5).
Subsec. (b). Pub. L. 98-241, 101(b), struck out ''and'' after
''1982;'' and inserted ''; $35,524,000 for the fiscal year ending
September 30, 1984, and $37,300,200 for the fiscal year ending September
30, 1985''.
Subsec. (c). Pub. L. 98-241, 101(c), struck out ''and'' after
''1982;'' and inserted ''; $25,800,000 for the fiscal year ending
September 30, 1984; and $28,665,000 for the fiscal year ending
September 30, 1985''.
Subsec. (d). Pub. L. 98-241, 101(d), struck out ''and'' after
''1982;'' and inserted ''; $475,000 for the fiscal year ending
September 30, 1984; and $498,750 for the fiscal year ending September
30, 1985''.
Subsec. (e). Pub. L. 98-241, 101(e), substituted ''1982,'' for
''1982 and'' and inserted ''September 30, 1984, and September 30,
1985,''.
1983 -- Subsec. (a)(4). Pub. L. 97-464, 101(a), added par. (4).
Subsecs. (b) to (d). Pub. L. 97-464, 101(b)-(d), inserted
authorization for fiscal year ending Sept. 30, 1983.
Subsec. (e). Pub. L. 97-464, 101(e), substituted ''each of the
fiscal years ending September 30, 1982 and September 30, 1983'' for
''the fiscal year ending September 30, 1982''.
1981 -- Subsec. (a)(3). Pub. L. 97-80, 101(a), added par. (3).
Subsecs. (b) to (d). Pub. L. 97-80, 101(b)-(d), inserted
authorization for fiscal year ending Sept. 30, 1982.
Subsec. (e). Pub. L. 97-80, 101(e), added subsec. (e).
1980 -- Subsec. (a). Pub. L. 96-472, 103(a), designated existing
provisions as par. (1) and added par. (2).
Subsecs. (b), (c). Pub. L. 96-472, 103(b), (c), inserted
authorization for fiscal year ending Sept. 30, 1981.
Subsec. (d). Pub. L. 96-472, 103(d), added subsec. (d).
/1/ So in original. Probably should be followed by a semicolon.
/2/ So in original. Probably should not be capitalized.
42 USC -- CHAPTER 87 -- WATER RESEARCH AND DEVELOPMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7801, 7802. Repealed. Pub. L. 98-242, title I, 110(a),
Mar. 22, 1984, 98 Stat. 101
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7801, Pub. L. 95-467, 2, Oct. 17, 1978, 92 Stat. 1305,
set out Congressional findings and declarations for a water research and
development program.
Section 7802, Pub. L. 95-467, 3, Oct. 17, 1978, 92 Stat. 1305,
set out Congressional statement of purpose.
For similar provisions, see section 10301 et seq. of this title.
Section 110(b) of Pub. L. 98-242 provided that: ''Rules and
regulations issued prior to the date of enactment of this Act (Mar. 22,
1984) under the authority of Public Law 95-467 (this chapter) shall
remain in full force and effect under this Act (repealing this chapter
and enacting chapter 109 ( 10301 et seq.) of this title) until
superseded by new rules and regulations promulgated under this Act.''
Section 1 of Pub. L. 95-467, which provided that Pub. L. 95-467 was
to be cited as the ''Water Research and Development Act of 1978'', was
repealed by section 110(a) of Pub. L. 98-242.
42 USC -- SUBCHAPTER I -- WATER RESOURCES RESEARCH AND DEVELOPMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7811 to 7819. Repealed. Pub. L. 98-242, title I, 110(a),
Mar. 22, 1984, 98 Stat. 101
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7811, Pub. L. 95-467, title I, 101, Oct. 17, 1978, 92
Stat. 1306, related to establishment of research and technology
institutes.
Section 7812, Pub. L. 95-467, title I, 102, Oct. 17, 1978, 92
Stat. 1307, authorized use of appropriated funds for printing and
publishing of program results, and planning, coordinating, and
conducting of cooperative research.
Section 7813, Pub. L. 95-467, title I, 103, Oct. 17, 1978, 92
Stat. 1308, set out responsibilities of Secretary of the Interior in
prescribing procedures, rules, and regulations, and in developing a
5-year water resource research program.
Section 7814, Pub. L. 95-467, title I, 104, Oct. 17, 1978, 92
Stat. 1308, related to non-impairment of legal relationship between
State governments and educational institutions involved in water
research and to prohibition with regard to any Federal control of
educational institutions.
Section 7815, Pub. L. 95-467, title I, 105, Oct. 17, 1978, 92
Stat. 1308, provided for making of grants and contracts.
Section 7816, Pub. L. 95-467, title I, 106, Oct. 17, 1978, 92
Stat. 1309, set out range of program issues and provided for due
consideration to be given to priority problems.
Section 7817, Pub. L. 95-467, title I, 107, Oct. 17, 1978, 92
Stat. 1309, defined ''State''.
Section 7818, Pub. L. 95-467, title I, 108, Oct. 17, 1978, 92
Stat. 1309, authorized advance payment of initial expenses.
Section 7819, Pub. L. 95-467, title I, 109, Oct. 17, 1978, 92
Stat. 1309, provided for study and design of water resources programs
and activities and for reports to Congress.
For similar provisions, see section 10301 et seq. of this title.
42 USC -- SUBCHAPTER II -- WATER RESEARCH AND DEVELOPMENT FOR SALINE AND
OTHER IMPAIRED WATERS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7831 to 7835. Repealed. Pub. L. 98-242, title I, 110(a),
Mar. 22, 1984, 98 Stat. 101
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7831, Pub. L. 95-467, title II, 200, Oct. 17, 1978, 92
Stat. 1310, set out Congressional findings and declaration of policy in
establishing a program for water research and development for saline and
other impaired waters.
Section 7832, Pub. L. 95-467, title II, 201, Oct. 17, 1978, 92
Stat. 1310, set out functions of the Secretary.
Section 7833, Pub. L. 95-467, title II, 202, Oct. 17, 1978, 92
Stat. 1310, set out additional functions of the Secretary with regard
to demonstrations and prototype plants, utilization of Federal
expertise, and financial assistance from State or public agencies.
Section 7834, Pub. L. 95-467, title II, 203, Oct. 17, 1978, 92
Stat. 1311, authorized the Secretary to issue rules and regulations to
carry out this subchapter.
Section 7835, Pub. L. 95-467, title II, 204, Oct. 17, 1978, 92
Stat. 1311, defined ''saline and other impaired water'', ''United
States'', ''pilot plant'', ''demonstration'', and ''prototype''.
For similar provisions, see section 10301 et seq. of this title.
42 USC -- 7836. Transferred
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-84, 2, Aug. 2, 1977, 91 Stat. 400; Pub. L.
95-467, title II, 205(a), (b), Oct. 17, 1978, 92 Stat. 1311; Pub. L.
96-457, 3, Oct. 15, 1980, 94 Stat. 2032; Pub. L. 98-242, title I,
110(a), Mar. 22, 1984, 98 Stat. 101, which directed Secretary of the
Interior to construct facilities demonstrating the engineering and
economic viability of various desalting processes, was transferred, and
is set out as a Desalting Plants note under section 10301 of this title.
Section 205(c) of Pub. L. 95-467, which authorized an appropriation
of $10,000,000 to remain available until expended for the fiscal year
ending Sept. 30, 1980, and thereafter in addition to sums previously
authorized to be appropriated to carry out the purpose of this section,
was repealed by Pub. L. 96-457, 4, Oct. 15, 1980, 94 Stat. 2034, and
Pub. L. 98-242, title I, 110(a), Mar. 22, 1984, 98 Stat. 101.
42 USC -- SUBCHAPTER III -- TECHNOLOGY TRANSFER AND INFORMATION
DISSEMINATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7851 to 7853. Repealed. Pub. L. 98-242, title I, 110(a),
Mar. 22, 1984, 98 Stat. 101
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7851, Pub. L. 95-467, title III, 300, Oct. 17, 1978, 92
Stat. 1312, provided for creation and operation of a research
assessment and technology transfer program.
Section 7852, Pub. L. 95-467, title III, 301, Oct. 17, 1978, 92
Stat. 1312, authorized the Secretary to maintain a national center for
acquisition, processing, and dissemination of information dealing with
all areas of water research.
Section 7853, Pub. L. 95-467, title III, 302, Oct. 17, 1978, 92
Stat. 1312, provided for establishment of a center for cataloging
current scientific research in all fields of water resources.
For similar provisions, see section 10301 et seq. of this title.
42 USC -- SUBCHAPTER IV -- GENERAL PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7871 to 7883. Repealed. Pub. L. 98-242, title I, 110(a),
Mar. 22, 1984, 98 Stat. 101
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 7871, Pub. L. 95-467, title IV, 400, Oct. 17, 1978, 92
Stat. 1313, enumerated powers of Secretary of the Interior in carrying
out this chapter.
Section 7872, Pub. L. 95-467, title IV, 401, Oct. 17, 1978, 92
Stat. 1313; Pub. L. 96-457, 1, 2(a), Oct. 15, 1980, 94 Stat. 2032,
authorized appropriation of funds for programs under sections 7811(a)
and (c), 7815(a) and (b), and 7819 of this title.
Section 7873, Pub. L. 95-467, title IV, 402, Oct. 17, 1978, 92
Stat. 1314; Pub. L. 96-457, 2(b)(1), Oct. 15, 1980, 94 Stat. 2032,
authorized appropriation of funds for research, development, and
demonstration plants.
Section 7874, Pub. L. 95-467, title IV, 403, Oct. 17, 1978, 92
Stat. 1314; Pub. L. 96-457, 2(b)(2), Oct. 15, 1980, 94 Stat. 2032,
authorized appropriation of funds for programs conducted under this
chapter for which there were no specific appropriations.
Section 7875, Pub. L. 95-467, title IV, 404, Oct. 17, 1978, 92
Stat. 1314, related to grant applications, approval of applications by
the Secretary, and the basis of approvals.
Section 7876, Pub. L. 95-467, title IV, 405, Oct. 17, 1978, 92
Stat. 1315, related to payments to institutes and accounting for such
payments.
Section 7877, Pub. L. 95-467, title IV, 406, Oct. 17, 1978, 92
Stat. 1315, related to cooperation in research programs between Federal
agencies, State and local governments, private institutions, and
individuals.
Section 7878, Pub. L. 95-467, title IV, 407, Oct. 17, 1978, 92
Stat. 1316, authorized conveyance of property acquired by the Secretary
to a cooperating institute, educational institution, or cooperating
nonprofit organization, and empowered the Secretary to dispose of water
and byproducts resulting from operations under this chapter.
Section 7879, Pub. L. 95-467, title IV, 408, Oct. 17, 1978, 92
Stat. 1316, set out policy under this chapter with regard to patents.
Section 7880, Pub. L. 95-467, title IV, 409, Oct. 17, 1978, 92
Stat. 1316, provided for annual reports to the Secretary by various
water research institutes.
Section 7881, Pub. L. 95-467, title IV, 410, Oct. 17, 1978, 92
Stat. 1316, provided that the chapter was not intended to repeal,
supersede, or diminish existing authorities of agencies concerning water
resources, or to be construed to alter existing law with respect to
ownership and control of water.
Section 7882, Pub. L. 95-467, title IV, 411, Oct. 17, 1978, 92
Stat. 1317, Pub. L. 96-457, 2(b)(3), Oct. 15, 1980, 94 Stat. 2032,
provided for transmittal of rules, regulations, etc., to the Speaker of
the House and President of the Senate.
Section 7883, Pub. L. 95-467, title IV, 412, Oct. 17, 1978, 92
Stat. 1317, provided that authority to enter into contracts or
cooperative agreements and to make payments under this chapter was
effective only to the extent or in such amounts as were provided in
advance in appropriations acts.
For prior provisions, see section 10301 of this title.
Pub. L. 97-35, title XVIII, 1807(b), Aug. 13, 1979, 95 Stat. 765,
provided that no funds were authorized to be appropriated to the
Secretary of the Interior for the purposes of water resources research
and development, saline water research, development, and demonstration,
and associated activities in excess of $23,650,000 per fiscal year for
each of the fiscal years ending September 30, 1982, September 30, 1983,
and September 30, 1984.
42 USC -- CHAPTER 88 -- URANIUM MILL TAILINGS RADIATION CONTROL
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
7901. Congressional findings and purposes.
7911. Definitions.
7912. Processing site designations.
(a) Specific and other site locations; remedial action;
consultations; boundaries; Grand Junction, Colorado site restriction.
(b) Health hazard assessment; priorities for remedial action.
(c) Notification.
(d) Finality of determinations.
(e) Certain real property or improved areas.
7913. State cooperative agreements.
(a) Authority of Secretary; prompt commencement of preparations.
(b) Terms and conditions; limitation of Federal assistance.
(c) Written consent of record interest holder; waiver.
(d) Inspection entries; termination of right of entry.
(e) Effective date.
(f) Reimbursement.
7914. Acquisition and disposition of lands and materials.
(a) State acquisition; windfall profits prevention.
(b) Disposition and stabilization site for residual radioactive
materials; Federal site available.
(c) Boundary limitations.
(d) Purchasers of sites; notification; rules and regulations.
(e) State disposition; terms and conditions; fair market value;
offer of sale to prior owner.
(f) Transfer of title to Secretary; payment from funds for
administrative and legal costs; custody of property; compliance with
health and environmental standards for uranium mill tailings; transfer
of title restriction.
(g) Reimbursement; fair market value; deposits in Treasury.
(h) Subsurface mineral rights; sale, lease, or other disposition;
restoration costs for disturbance of residual radioactive materials.
7915. Indian tribe cooperative agreements.
(a) Authority of Secretary; priorities for remedial action; use of
Indian personnel; terms and conditions.
(b) Disposition and stabilization sites for residual radioactive
materials; transfer to Secretary of the Interior.
7916. Acquisition of land by Secretary; transfer of public lands by
Secretary of the Interior to Secretary; consultations with Governor;
consent of Governor; transfer from Federal agency to Secretary.
7917. Financial assistance.
(a) Federal and non-Federal funds; administrative costs.
(b) Indian land processing sites.
7918. Remedial action and mineral recovery activities.
(a) General standards for remedial action; Federal performance and
State participation; use of technology; promulgation of standards.
(b) Mineral concentration evaluation; terms and conditions for
mineral recovery; payment of Federal and State share of net profits
recovery costs; licenses.
7919. Rules.
7920. Enforcement.
(a) Civil penalty; appellate review; action to recover civil
penalty; sovereign immunity; equitable remedies.
(b) Atomic energy licensing requirements.
7921. Public participation; public hearings.
7922. Termination of authority of Secretary; groundwater
restoration activities; annual Department of Energy authorizations;
appropriations available for expenditure.
7923. Limitation of contractual authority.
7924. Reports to Congress.
(a) Information; consultations; separate official views; partial
report concerning uranium mill tailings provisions.
(b) Identification of sites; Federal agency jurisdiction; contents;
duplication prohibition; use and cooperation respecting other Federal
agency information.
(c) Uranium mine wastes hazards elimination program.
(d) Reports to Congressional committees.
(e) Documentation of information; public availability; trade
secrets and other disclosure exempt information.
7925. Active operations; liability for remedial action.
7941. Study of authority for regulation and control of residual
radioactive materials at New Mexico sites for protection of public
health, safety, and the environment; report to Congress and Secretary;
basis for determination of inadequacy of authority; interim regulation
pending completion of study.
7942. Designation by Secretary as processing sites for subchapter I
purposes.
(a) New Mexico cooperative agreement respecting certain residual
radioactive materials; submission to Congressional committees.
(b) Effective date.
(c) Subchapter I provisions applicable.
42 USC -- 7901. Congressional findings and purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Congress finds that uranium mill tailings located at active
and inactive mill operations may pose a potential and significant
radiation health hazard to the public, and that the protection of the
public health, safety, and welfare and the regulation of interstate
commerce require that every reasonable effort be made to provide for the
stabilization, disposal, and control in a safe and environmentally sound
manner of such tailings in order to prevent or minimize radon diffusion
into the environment and to prevent or minimize other environmental
hazards from such tailings.
(b) The purposes of this chapter are to provide --
(1) in cooperation with the interested States, Indian tribes, and the
persons who own or control inactive mill tailings sites, a program of
assessment and remedial action at such sites, including, where
appropriate, the reprocessing of tailings to extract residual uranium
and other mineral values where practicable, in order to stabilize and
control such tailings in a safe and environmentally sound manner and to
minimize or eliminate radiation health hazards to the public, and
(2) a program to regulate mill tailings during uranium or thorium ore
processing at active mill operations and after termination of such
operations in order to stabilize and control such tailings in a safe and
environmentally sound manner and to minimize or eliminate radiation
health hazards to the public.
(Pub. L. 95-604, 2, Nov. 8, 1978, 92 Stat. 3021.)
This chapter, referred to in subsec. (b), was in the original ''this
Act'', meaning Pub. L. 95-604, Nov. 8, 1978, 92 Stat. 3021, as
amended, known as the Uranium Mill Tailings Radiation Control Act of
1978. For complete classification of this Act to the Code, see Short
Title note below and Tables.
Pub. L. 100-616, 1, Nov. 5, 1988, 102 Stat. 3192, provided:
''That this Act (amending sections 7916 and 7922 of this title) may be
cited as the 'Uranium Mill Tailings Remedial Action Amendments Act of
1988'.''
Section 1 of Pub. L. 95-604 provided that: ''This Act (enacting
this chapter and sections 2022, 2113, and 2114 of this title, amending
sections 2014, 2021, 2111, and 2201 of this title, and enacting
provisions set out as notes under sections 2014, 2021, and 2113 of this
title) may be cited as the 'Uranium Mill Tailings Radiation Control Act
of 1978'.''
Regulation of uranium mill tailings at active mill operations, see
sections 2113 and 2114 of this title.
42 USC -- SUBCHAPTER I -- REMEDIAL ACTION PROGRAM
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7911. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this subchapter --
(1) The term ''Secretary'' means the Secretary of Energy.
(2) The term ''Commission'' means the Nuclear Regulatory Commission.
(3) The term ''Administrator'' means the Administrator of the
Environmental Protection Agency.
(4) The term ''Indian tribe'' means any tribe, band, clan, group,
pueblo, or community of Indians recognized as eligible for services
provided by the Secretary of the Interior to Indians.
(5) The term ''person'' means any individual, association,
partnership, corporation, firm, joint venture, trust, government entity,
and any other entity, except that such term does not include any Indian
or Indian tribe.
(6) The term ''processing site'' means --
(A) any site, including the mill, containing residual radioactive
materials at which all or substantially all of the uranium was produced
for sale to any Federal agency prior to January 1, 1971 under a contract
with any Federal agency, except in the case of a site at or near Slick
Rock, Colorado, unless --
(i) such site was owned or controlled as of January 1, 1978, or is
thereafter owned or controlled, by any Federal agency, or
(ii) a license (issued by the Commission or its predecessor agency
under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.) or by a
State as permitted under section 274 of such Act (42 U.S.C. 2021)) for
the production at such site of any uranium or thorium product derived
from ores is in effect on January 1, 1978, or is issued or renewed after
such date; and
(B) any other real property or improvement thereon which --
(i) is in the vicinity of such site, and
(ii) is determined by the Secretary, in consultation with the
Commission, to be contaminated with residual radioactive materials
derived from such site.
Any ownership or control of an area by a Federal agency which is
acquired pursuant to a cooperative agreement under this subchapter shall
not be treated as ownership or control by such agency for purposes of
subparagraph (A)(i). A license for the production of any uranium
product from residual radioactive materials shall not be treated as a
license for production from ores within the meaning of subparagraph
(A)(ii) if such production is in accordance with section 7918(b) of this
title.
(7) The term ''residual radioactive material'' means --
(A) waste (which the Secretary determines to be radioactive) in the
form of tailings resulting from the processing of ores for the
extraction of uranium and other valuable constituents of the ores; and
(B) other waste (which the Secretary determines to be radioactive) at
a processing site which relate to such processing, including any
residual stock of unprocessed ores or low-grade materials.
(8) The term ''tailings'' means the remaining portion of a
metal-bearing ore after some or all of such metal, such as uranium, has
been extracted.
(9) The term ''Federal agency'' includes any executive agency as
defined in section 105 of title 5.
(10) The term ''United States'' means the 48 contiguous States and
Alaska, Hawaii, Puerto Rico, the District of Columbia, and the
territories and possessions of the United States.
(Pub. L. 95-604, title I, 101, Nov. 8, 1978, 92 Stat. 3022.)
The Atomic Energy Act of 1954, referred to in par. (6)(A)(ii), is
act Aug. 30, 1954, ch. 1073, 68 Stat. 921, as amended, which is
classified generally to chapter 23 ( 2011 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 2011 of this title and Tables.
42 USC -- 7912. Processing site designations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Specific and other site locations; remedial action;
consultations; boundaries; Grand Junction, Colorado site restriction
(1) As soon as practicable, but no later than one year after November
8, 1978, the Secretary shall designate processing sites at or near the
following locations:
Salt Lake City, Utah
Green River, Utah
Mexican Hat, Utah
Durango, Colorado
Grand Junction, Colorado
Rifle, Colorado (two sites)
Gunnison, Colorado
Naturita, Colorado
Maybell, Colorado
Slick Rock, Colorado (two sites)
Shiprock, New Mexico
Ambrosia Lake, New Mexico
Riverton, Wyoming
Converse County, Wyoming
Lakeview, Oregon
Falls City, Texas
Tuba City, Arizona
Monument Valley, Arizona
Lowman, Idaho
Cannonsburg, Pennsylvania
Subject to the provisions of this subchapter, the Secretary shall
complete remedial action at the above listed sites before his authority
terminates under this subchapter. The Secretary shall within one year
of November 8, 1978, also designate all other processing sites within
the United States which he determines requires remedial action to carry
out the purposes of this subchapter. In making such designation, the
Secretary shall consult with the Administrator, the Commission, and the
affected States, and in the case of Indian lands, the appropriate Indian
tribe and the Secretary of the Interior.
(2) As part of his designation under this subsection, the Secretary,
in consultation with the Commission, shall determine the boundaries of
each such site.
(3) No site or structure with respect to which remedial action is
authorized under Public Law 92-314 in Grand Junction, Colorado, may be
designated by the Secretary as a processing site under this section.
(b) Health hazard assessment; priorities for remedial action
Within one year from November 8, 1978, the Secretary shall assess the
potential health hazard to the public from the residual radioactive
materials at designated processing sites. Based upon such assessment,
the Secretary shall, within such one year period, establish priorities
for carrying out remedial action at each such site. In establishing
such priorities, the Secretary shall rely primarily on the advice of the
Administrator.
(c) Notification
Within thirty days after making designations of processing sites and
establishing the priorities for such sites under this section, the
Secretary shall notify the Governor of each affected State, and, where
appropriate, the Indian tribes and the Secretary of the Interior.
(d) Finality of determinations
The designations made, and priorities established, by the Secretary
under this section shall be final and not be subject to judicial review.
(e) Certain real property or improved areas
(1) The designation of processing sites within one year after
November 8, 1978, under this section shall include, to the maximum
extent practicable, the areas referred to in section 7911(6)(B) of this
title.
(2) Notwithstanding the one year limitation contained in this
section, the Secretary may, after such one year period, include any area
described in section 7911(6)(B) of this title as part of a processing
site designated under this section if he determines such inclusion to be
appropriate to carry out the purposes of this subchapter.
(3) The Secretary shall designate as a processing site within the
meaning of section 7911(6) of this title any real property, or
improvements thereon, in Edgemont, South Dakota, that --
(A) is in the vicinity of the Tennessee Valley Authority uranium mill
site at Edgemont (but not including such site), and
(B) is determined by the Secretary to be contaminated with residual
radioactive materials.
In making the designation under this paragraph, the Secretary shall
consult with the Administrator, the Commission and the State of South
Dakota. The provisions of this subchapter shall apply to the site so
designated in the same manner and to the same extent as to the sites
designated under subsection (a) of this section except that, in applying
such provisions to such site, any reference in this subchapter to
November 8, 1978, shall be treated as a reference to January 4, 1983,
and in determining the State share under section 7917 of this title of
the costs of remedial action, there shall be credited to the State,
expenditures made by the State prior to January 4, 1983, which the
Secretary determines would have been made by the State or the United
States in carrying out the requirements of this subchapter.
(Pub. L. 95-604, title I, 102, Nov. 8, 1978, 92 Stat. 3023; Pub.
L. 97-415, 21, Jan. 4, 1983, 96 Stat. 2079.)
Remedial action authorized under Public Law 92-314, referred to in
subsec. (a)(3), means the remedial action authorized by title II of
Pub. L. 92-314, June 16, 1972, 86 Stat. 222, which is not classified
to the Code.
1983 -- Subsec. (e)(3). Pub. L. 97-415 added par. (3).
42 USC -- 7913. State cooperative agreements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary; prompt commencement of preparations
After notifying a State of the designation referred to in section
7912 of this title, the Secretary subject to section 7923 of this title,
is authorized to enter into cooperative agreements with such State to
perform remedial actions at each designated processing site in such
State (other than a site located on Indian lands referred to in section
7915 of this title). The Secretary shall, to the greatest extent
practicable, enter into such agreements and carry out such remedial
actions in accordance with the priorities established by him under
section 7912 of this title. The Secretary shall commence preparations
for cooperative agreements with respect to each designated processing
site as promptly as practicable following the designation of each site.
(b) Terms and conditions; limitation of Federal assistance
Each cooperative agreement under this section shall contain such
terms and conditions as the Secretary deems appropriate and consistent
with the purposes of this chapter, including, but not limited to, a
limitation on the use of Federal assistance to those costs which are
directly required to complete the remedial action selected pursuant to
section 7918 of this title.
(c) Written consent of record interest holder; waiver
(1) Except where the State is required to acquire the processing site
as provided in subsection (a) of section 7914 of this title, each
cooperative agreement with a State under this section shall provide that
the State shall obtain, in a form prescribed by the Secretary, written
consent from any person holding any record interest in the designated
processing site for the Secretary or any person designated by him to
perform remedial action at such site.
(2) Such written consent shall include a waiver by each such person
on behalf of himself, his heirs, successors, and assigns --
(A) releasing the United States of any liability or claim thereof by
such person, his heirs, successors, and assigns concerning such remedial
action, and
(B) holding the United States harmless against any claim by such
person on behalf of himself, his heirs, successors, or assigns arising
out of the performance of any such remedial action.
(d) Inspection entries; termination of right of entry
Each cooperative agreement under this section shall require the State
to assure that the Secretary, the Commission, and the Administrator and
their authorized representatives have a permanent right of entry at any
time to inspect the processing site and the site provided pursuant to
section 7914(b)(1) of this title in furtherance of the provisions of
this subchapter and to carry out such agreement and enforce this chapter
and any rules prescribed under this chapter. Such right of entry under
this section or section 7916 of this title into an area described in
section 7911(6)(B) of this title shall terminate on completion of the
remedial action, as determined by the Secretary.
(e) Effective date
Each agreement under this section shall take effect only upon the
concurrence of the Commission with the terms and conditions thereof.
(f) Reimbursement
The Secretary may, in any cooperative agreement entered into under
this section or section 7915 of this title, provide for reimbursement of
the actual costs, as determined by the Secretary, of any remedial action
performed with respect to so much of a designated processing site as is
described in section 7911(6)(B) of this title. Such reimbursement shall
be made only to a property owner of record at the time such remedial
action was undertaken and only with respect to costs incurred by such
property owner. No such reimbursement may be made unless --
(1) such remedial action was completed prior to November 8, 1978, and
unless the application for such reimbursement was filed by such owner
within one year after an agreement under this section or section 7915 of
this title is approved by the Secretary and the Commission, and
(2) the Secretary is satisfied that such action adequately achieves
the purposes of this chapter with respect to the site concerned and is
consistent with the standards established by the Administrator pursuant
to section 2022(a) of this title.
(Pub. L. 95-604, title I, 103, Nov. 8, 1978, 92 Stat. 3024.)
42 USC -- 7914. Acquisition and disposition of lands and materials
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State acquisition; windfall profits prevention
Each cooperative agreement under section 7913 of this title shall
require the State, where determined appropriate by the Secretary with
the concurrence of the Commission, to acquire any designated processing
site, including where appropriate any interest therein. In determining
whether to require the State to acquire a designated processing site or
interest therein, consideration shall be given to the prevention of
windfall profits.
(b) Disposition and stabilization site for residual radioactive
materials; Federal site available
(1) If the Secretary with the concurrence of the Commission
determines that removal of residual radioactive material from a
processing site is appropriate, the cooperative agreement shall provide
that the State shall acquire land (including, where appropriate, any
interest therein) to be used as a site for the permanent disposition and
stabilization of such residual radioactive materials in a safe and
environmentally sound manner.
(2) Acquisition by the State shall not be required under this
subsection if a site located on land controlled by the Secretary or made
available by the Secretary of the Interior pursuant to section 7916(2)
of this title is designated by the Secretary, with the concurrence of
the Commission, for such disposition and stabilization.
(c) Boundary limitations
No State shall be required under subsection (a) or (b) of this
section to acquire any real property or improvement outside the
boundaries of --
(1) that portion of the processing site which is described in section
7911(6)(A) of this title, and
(2) the site used for disposition of the residual radioactive
materials.
(d) Purchasers of sites; notification; rules and regulations
In the case of each processing site designated under this subchapter
other than a site designated on Indian land, the State shall take such
action as may be necessary, and pursuant to regulations of the Secretary
under this subsection, to assure that any person who purchases such a
processing site after the removal of radioactive materials from such
site shall be notified in an appropriate manner prior to such purchase,
of the nature and extent of residual radioactive materials removed from
the site, including notice of the date when such action took place, and
the condition of such site after such action. If the State is the owner
of such site, the State shall so notify any prospective purchaser before
entering into a contract, option, or other arrangement to sell or
otherwise dispose of such site. The Secretary shall issue appropriate
rules and regulations to require notice in the local land records of the
residual radioactive materials which were located at any processing site
and notice of the nature and extent of residual radioactive materials
removed from the site, including notice of the date when such action
took place.
(e) State disposition; terms and conditions; fair market value;
offer of sale to prior owner
(1) The terms and conditions of any cooperative agreement with a
State under section 7913 of this title shall provide that in the case of
any lands or interests therein acquired by the State pursuant to
subsection (a) of this section, the State, with the concurrence of the
Secretary and the Commission, may --
(A) sell such lands and interests,
(B) permanently retain such land and interests in lands (or donate
such lands and interests therein to another governmental entity within
such State) for permanent use by such State or entity solely for park,
recreational, or other public purposes, or
(C) transfer such lands and interests to the United States as
provided in subsection (f) of this section.
No lands may be sold under subparagraph (A) without the consent of
the Secretary and the Commission. No site may be sold under
subparagraph (A) or retained under subparagraph (B) if such site is used
for the disposition of residual radioactive materials.
(2) Before offering for sale any lands and interests therein which
comprise a processing site, the State shall offer to sell such lands and
interests at their fair market value to the person from whom the State
acquired them.
(f) Transfer of title to Secretary; payment from funds for
administrative and legal costs; custody of property; compliance with
health and environmental standards for uranium mill tailings; transfer
of title restriction
(1) Each agreement under section 7913 of this title shall provide
that title to --
(A) the residual radioactive materials subject to the agreement, and
(B) any lands and interests therein which have been acquired by the
State, under subsection (a) or (b) of this section, for the disposition
of such materials,
shall be transferred by the State to the Secretary when the Secretary
(with the concurrence of the Commission) determines that remedial action
is completed in accordance with the requirements imposed pursuant to
this subchapter. No payment shall be made in connection with the
transfer of such property from funds appropriated for purposes of this
chapter other than payments for any administrative and legal costs
incurred in carrying out such transfer.
(2) Custody of any property transferred to the United States under
this subsection shall be assumed by the Secretary or such Federal agency
as the President may designate. Notwithstanding any other provision of
law, upon completion of the remedial action program authorized by this
subchapter, such property and minerals shall be maintained pursuant to a
license issued by the Commission in such manner as will protect the
public health, safety, and the environment. The Commission may,
pursuant to such license or by rule or order, require the Secretary or
other Federal agency having custody of such property and minerals to
undertake such monitoring, maintenance, and emergency measures necessary
to protect public health and safety and other actions as the Commission
deems necessary to comply with the standards of section 2022(a) of this
title. The Secretary or such other Federal agency is authorized to
carry out maintenance, monitoring and emergency measures under this
subsection, but shall take no other action pursuant to such license,
rule or order with respect to such property and minerals unless
expressly authorized by Congress after November 8, 1978. The United
States shall not transfer title to property or interest therein acquired
under this subsection to any person or State, except as provided in
subsection (h) of this section.
(g) Reimbursement; fair market value; deposits in Treasury
Each agreement under section 7913 of this title which permits any
sale described in subsection (e)(1)(A) of this section shall provide for
the prompt reimbursement to the Secretary from the proceeds of such
sale. Such reimbursement shall be in an amount equal to the lesser of
--
(1) that portion of the fair market value of the lands or interests
therein which bears the same ratio to such fair market value as the
Federal share of the costs of acquisition by the State to such lands or
interest therein bears to the total cost of such acquisition, or
(2) the total amount paid by the Secretary with respect to such
acquisition.
The fair market value of such lands or interest shall be determined
by the Secretary as of the date of the sale by the State. Any amounts
received by the Secretary under this subchapter shall be deposited in
the Treasury of the United States as miscellaneous receipts.
(h) Subsurface mineral rights; sale, lease, or other disposition;
restoration costs for disturbance of residual radioactive materials
No provision of any agreement under section 7913 of this title shall
prohibit the Secretary of the Interior, with the concurrence of the
Secretary of Energy and the Commission, from disposing of any subsurface
mineral rights by sale or lease (in accordance with laws of the United
States applicable to the sale, lease, or other disposal of such rights)
which are associated with land on which residual radioactive materials
are disposed and which are transferred to the United States as required
under this section if the Secretary of the Interior takes such action as
the Commission deems necessary pursuant to a license issued by the
Commission to assure that the residual radioactive materials will not be
disturbed by reason of any activity carried on following such
disposition. If any such materials are disturbed by any such activity,
the Secretary of the Interior shall insure, prior to the disposition of
the minerals, that such materials will be restored to a safe and
environmentally sound condition as determined by the Commission, and
that the costs of such restoration will be borne by the person acquiring
such rights from the Secretary of the Interior or from his successor or
assign.
(Pub. L. 95-604, title I, 104, Nov. 8, 1978, 92 Stat. 3025.)
42 USC -- 7915. Indian tribe cooperative agreements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary; priorities for remedial action; use of
Indian personnel; terms and conditions
After notifying the Indian tribe of the designation pursuant to
section 7912 of this title, the Secretary, in consultation with the
Secretary of the Interior, is authorized to enter into a cooperative
agreement, subject to section 7923 of this title, with any Indian tribe
to perform remedial action at a designated processing site located on
land of such Indian tribe. The Secretary shall, to the greatest extent
practicable, enter into such agreements and carry out such remedial
actions in accordance with the priorities established by him under
section 7912 of this title. In performing any remedial action under
this section and in carrying out any continued monitoring or maintenance
respecting residual radioactive materials associated with any site
subject to a cooperative agreement under this section, the Secretary
shall make full use of any qualified members of Indian tribes resident
in the vicinity of any such site. Each such agreement shall contain
such terms and conditions as the Secretary deems appropriate and
consistent with the purposes of this chapter. Such terms and conditions
shall require the following:
(1) The Indian tribe and any person holding any interest in such land
shall execute a waiver (A) releasing the United States of any liability
or claim thereof by such tribe or person concerning such remedial action
and (B) holding the United States harmless against any claim arising out
of the performance of any such remedial action.
(2) The remedial action shall be selected and performed in accordance
with section 7918 of this title by the Secretary or such person as he
may designate.
(3) The Secretary, the Commission, and the Administrator and their
authorized representatives shall have a permanent right of entry at any
time to inspect such processing site in furtherance of the provisions of
this subchapter, to carry out such agreement, and to enforce any rules
prescribed under this chapter.
Each agreement under this section shall take effect only upon
concurrence of the Commission with the terms and conditions thereof.
(b) Disposition and stabilization sites for residual radioactive
materials; transfer to Secretary of the Interior
When the Secretary with the concurrence of the Commission determines
removal of residual radioactive materials from a processing site on
lands described in subsection (a) of this section to be appropriate, he
shall provide, consistent with other applicable provisions of law, a
site or sites for the permanent disposition and stabilization in a safe
and environmentally sound manner of such residual radioactive materials.
Such materials shall be transferred to the Secretary (without payment
therefor by the Secretary) and permanently retained and maintained by
the Secretary under the conditions established in a license issued by
the Commission, subject to section 7914(f)(2) and (h) of this title.
(Pub. L. 95-604, title I, 105, Nov. 8, 1978, 92 Stat. 3028.)
42 USC -- 7916. Acquisition of land by Secretary; transfer of public
lands by Secretary of the Interior to Secretary; consultations with
Governor; consent of Governor; transfer from Federal agency to
Secretary
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Where necessary or appropriate in order to consolidate in a safe and
environmentally sound manner the location of residual radioactive
materials which are removed from processing sites under cooperative
agreements under this subchapter, or where otherwise necessary for the
permanent disposition and stabilization of such materials in such manner
--
(1) the Secretary may acquire land and interests in land for such
purposes by purchase, donation, or under any other authority of law or
(2) the Secretary of the Interior may transfer permanently to the
Secretary to carry out the purposes of this chapter, public lands under
the jurisdiction of the Bureau of Land Management in the vicinity of
processing sites in the following counties:
(A) Apache County in the State of Arizona;
(B) Mesa, Gunnison, Moffat, Montrose, Garfield, and San Miguel
Counties in the State of Colorado;
(C) Boise County in the State of Idaho;
(D) Billings and Bowman Counties in the State of North Dakota;
(E) Grand and San Juan Counties in the State of Utah;
(F) Converse and Fremont Counties in the State of Wyoming; and
(G) Any other county in the vicinity of a processing site, if no site
in the county in which a processing site is located is suitable.
Any permanent transfer of lands under the jurisdiction of the Bureau
of Land Management by the Secretary of the Interior to the Secretary
shall not take place until the Secretary complies with the requirements
of the National Environmental Policy Act (42 U.S.C. 4321 et seq.) with
respect to the selection of a site for the permanent disposition and
stabilization of residual radioactive materials. Section 1714 of title
43 shall not apply to this transfer of jurisdiction. Prior to
acquisition of land under paragraph (1) or (2) of this subsection /1/ in
any State, the Secretary shall consult with the Governor of such State.
No lands may be acquired under such paragraph (1) or (2) in any State in
which there is no (1) processing site designated under this subchapter
or (2) active uranium mill operation, unless the Secretary has obtained
the consent of the Governor of such State. No lands controlled by any
Federal agency may be transferred to the Secretary to carry out the
purposes of this chapter without the concurrence of the chief
administrative officer of such agency.
(Pub. L. 95-604, title I, 106, Nov. 8, 1978, 92 Stat. 3029; Pub.
L. 100-616, 2, Nov. 5, 1988, 102 Stat. 3192.)
This chapter, referred to in text, was in the original ''this Act'',
meaning Pub. L. 95-604, Nov. 8, 1978, 92 Stat. 3021, as amended,
known as the Uranium Mill Tailings Radiation Control Act of 1978. For
complete classification of this Act to the Code, see Short Title note
set out under section 7901 of this title and Tables.
The National Environmental Policy Act, referred to in text, probably
means the National Environmental Policy Act of 1969, Pub. L. 91-190,
Jan. 1, 1970, 83 Stat. 852, as amended, which is classified generally
to chapter 55 ( 4321 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 4321 of this title and Tables.
1988 -- Par. (2). Pub. L. 100-616 added par. (2) and concluding
provisions and struck out former par. (2) and concluding provisions
which read as follows:
''(2) the Secretary of the Interior may make available public lands
administered by him for such purposes in accordance with other
applicable provisions of law.
Prior to acquisition of land under paragraph (1) or (2) of this
subsection in any State, the Secretary shall consult with the Governor
of such State. No lands may be acquired under such paragraph (1) or (2)
in any State in which there is no (1) processing site designated under
this subchapter or (2) active uranium mill operation, unless the
Secretary has obtained the consent of the Governor of such State. No
lands controlled by any Federal agency may be transferred to the
Secretary to carry out the purposes of this chapter without the
concurrence of the chief administrative officer of such agency.''
/1/ So in original. Probably should be ''section''.
42 USC -- 7917. Financial assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Federal and non-Federal funds; administrative costs
In the case of any designated processing site for which an agreement
is executed with any State for remedial action at such site, the
Secretary shall pay 90 per centum of the actual cost of such remedial
action, including the actual costs of acquiring such site (and any
interest therein) or any disposition site (and any interest therein)
pursuant to section 7913 of this title, and the State shall pay the
remainder of such costs from non-Federal funds. The Secretary shall not
pay the administrative costs incurred by any State to develop, prepare,
and carry out any cooperative agreement executed with such State under
this subchapter, except the proportionate share of the administrative
costs associated with the acquisition of lands and interests therein
acquired by the State pursuant to this subchapter.
(b) Indian land processing sites
In the case of any designated processing site located on Indian
lands, the Secretary shall pay the entire cost of such remedial action.
(Pub. L. 95-604, title I, 107, Nov. 8, 1978, 92 Stat. 3029.)
42 USC -- 7918. Remedial action and mineral recovery activities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General standards for remedial action; Federal performance and
State participation; use of technology; promulgation of standards
(1) The Secretary or such person as he may designate shall select and
perform remedial actions at designated processing sites and disposal
sites in accordance with the general standards prescribed by the
Administrator pursuant to section 275 a. of the Atomic Energy Act of
1954 (42 U.S.C. 2022(a)). The State shall participate fully in the
selection and performance of a remedial action for which it pays part of
the cost. Such remedial action shall be selected and performed with the
concurrence of the Commission and in consultation, as appropriate, with
the Indian tribe and the Secretary of the Interior.
(2) The Secretary shall use technology in performing such remedial
action as will insure compliance with the general standards promulgated
by the Administrator under section 275 a. of the Atomic Energy Act of
1954 (42 U.S.C. 2022(a)) and will assure the safe and environmentally
sound stabilization of residual radioactive materials, consistent with
existing law.
(3) Notwithstanding paragraphs (1) and (2) of this subsection, after
October 31, 1982, if the Administrator has not promulgated standards
under section 275 a. of the Atomic Energy Act of 1954 (42 U.S.C.
2022(a)) in final form by such date, remedial action taken by the
Secretary under this subchapter shall comply with the standards proposed
by the Administrator under such section 275 a. until such time as the
Administrator promulgates the standards in final form.
(b) Mineral concentration evaluation; terms and conditions for
mineral recovery; payment of Federal and State share of net profits;
recovery costs; licenses
Prior to undertaking any remedial action at a designated site
pursuant to this subchapter, the Secretary shall request expressions of
interest from private parties regarding the remilling of the residual
radioactive materials and the site and, upon receipt of any expression
of interest, the Secretary shall evaluate among other things the mineral
concentration of the residual radioactive materials at each designated
processing site to determine whether, as a part of any remedial action
program, recovery of such minerals is practicable. The Secretary, with
the concurrence of the Commission, may permit the recovery of such
minerals, under such terms and conditions as he may prescribe to carry
out the purposes of this subchapter. No such recovery shall be
permitted unless such recovery is consistent with remedial action. Any
person permitted by the Secretary to recover such mineral shall pay to
the Secretary a share of the net profits derived from such recovery, as
determined by the Secretary. Such share shall not exceed the total
amount paid by the Secretary for carrying out remedial action at such
designated site. After payment of such share to the United States under
this subsection, such person shall pay to the State in which the
residual radioactive materials are located a share of the net profits
derived from such recovery, as determined by the Secretary. The person
recovering such minerals shall bear all costs of such recovery. Any
person carrying out mineral recovery activities under this paragraph
shall be required to obtain any necessary license under the Atomic
Energy Act of 1954 (42 U.S.C. 2011 et seq.) or under State law as
permitted under section 274 of such Act (42 U.S.C. 2021).
(Pub. L. 95-604, title I, 108, Nov. 8, 1978, 92 Stat. 3029; Pub.
L. 97-415, 18(b), Jan. 4, 1983, 96 Stat. 2078.)
The Atomic Energy Act of 1954, referred to in subsec. (b), is act
Aug. 30, 1954, ch. 1073, 68 Stat. 921, as amended, which is
classified generally to chapter 23 ( 2011 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 2011 of this title and Tables.
1983 -- Subsec. (a)(2). Pub. L. 97-415, 18(b)(2), struck out
provision that no such remedial action could be undertaken under this
section before the promulgation by the Administrator of general
standards pursuant to section 275 a. of the Atomic Energy Act of 1954.
Subsec. (a)(3). Pub. L. 97-415, 18(b)(1), added par. (3).
42 USC -- 7919. Rules
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary may prescribe such rules consistent with the purposes
of this chapter as he deems appropriate pursuant to title V of the
Department of Energy Organization Act (42 U.S.C. 7191 et seq.).
(Pub. L. 95-604, title I, 109, Nov. 8, 1978, 92 Stat. 3030.)
The Department of Energy Organization Act, referred to in text, is
Pub. L. 95-91, Aug. 4, 1977, 91 Stat. 565, as amended. Title V of
the Department of Energy Organization Act is classified generally to
subchapter V ( 7191 et seq.) of chapter 84 of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 7101 of this title and Tables.
42 USC -- 7920. Enforcement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Civil penalty; appellate review; action to recover civil
penalty; sovereign immunity; equitable remedies
(1) Any person who violates any provision of this subchapter or any
cooperative agreement entered into pursuant to this subchapter or any
rule prescribed under this chapter concerning any designated processing
site, dispostion site, or remedial action shall be subject to an
assessment by the Secretary of a civil penalty of not more than $1,000
per day per violation. Such assessment shall be made by order after
notice and an opportunity for a public hearing, pursuant to section 554
of title 5.
(2) Any person against whom a penalty is assessed under this section
may, within sixty calendar days after the date of the order of the
Secretary assessing such penalty, institute an action in the United
States court of appeals for the appropriate judicial circuit for
judicial review of such order in accordance with chapter 7 of title 5.
The court shall have jurisdiction to enter a judgment affirming,
modifying, or setting aside in whole or in part, the order of the
Secretary, or the court may remand the proceeding to the Secretary for
such further action as the court may direct.
(3) If any person fails to pay an assessment of a civil penalty after
it has become a final and unappealable order, the Secretary shall
institute an action to recover the amount of such penalty in any
appropriate district court of the United States. In such action, the
validity and appropriateness of such final assessment order or judgment
shall not be subject to review. Section 7172(d) of this title shall not
apply with respect to the functions of the Secretary under this section.
(4) No civil penalty may be assessed against the United States or any
State or political subdivision of a State or any official or employee of
the foregoing.
(5) Nothing in this section shall prevent the Secretary from
enforcing any provision of this subchapter or any cooperative agreement
or any such rule by injunction or other equitable remedy.
(b) Atomic energy licensing requirements
Subsection (a) of this section shall not apply to any licensing
requirement under the Atomic Energy Act of 1954 (42 U.S.C. 2011 et
seq.). Such licensing requirements shall be enforced by the Commission
as provided in such Act.
(Pub. L. 95-604, title I, 110, Nov. 8, 1978, 92 Stat. 3030.)
The Atomic Energy Act of 1954, referred to in subsec. (b), is act
Aug. 30, 1954, ch. 1073, 68 Stat. 921, as amended, which is
classified generally to chapter 23 ( 2011 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 2011 of this title and Tables.
42 USC -- 7921. Public participation; public hearings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
In carrying out the provisions of this subchapter, including the
designation of processing sites, establishing priorities for such sites,
the selection of remedial actions, and the execution of cooperative
agreements, the Secretary, the Administrator, and the Commission shall
encourage public participation and, where appropriate, the Secretary
shall hold public hearings relative to such matters in the States where
processing sites and disposal sites are located.
(Pub. L. 95-604, title I, 111, Nov. 8, 1978, 92 Stat. 3031.)
42 USC -- 7922. Termination of authority of Secretary; groundwater
restoration activities; annual Department of Energy authorizations;
appropriations available for expenditure
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The authority of the Secretary to perform remedial action under
this subchapter shall terminate on September 30, 1994, except that the
authority of the Secretary to perform groundwater restoration activities
under this subchapter is without limitation.
(b) The amounts authorized to be appropriated to carry out the
purposes of this subchapter by the Secretary, the Administrator, the
Commission, and the Secretary of the Interior shall not exceed such
amounts as are established in annual authorization Acts for fiscal year
1979 and each fiscal year thereafter applicable to the Department of
Energy. Any sums appropriated for the purposes of this subchapter shall
be available until expended.
(Pub. L. 95-604, title I, 112, Nov. 8, 1978, 92 Stat. 3031; Pub.
L. 100-616, 3, Nov. 5, 1988, 102 Stat. 3193.)
1988 -- Subsec. (a). Pub. L. 100-616 amended subsec. (a) generally.
Prior to amendment, subsec. (a) read as follows: ''The authority of
the Secretary to perform remedial action under this subchapter shall
terminate on the date seven years after the date of promulgation by the
Administrator of general standards applicable to such remedial action
unless such termination date is specifically extended by an Act of
Congress enacted after November 8, 1978.''
42 USC -- 7923. Limitation of contractual authority
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The authority under this subchapter to enter into contracts or other
obligations requiring the United States to make outlays may be exercised
only to the extent provided in advance in annual authorization and
appropriation Acts.
(Pub. L. 95-604, title I, 113, Nov. 8, 1978, 92 Stat. 3031.)
42 USC -- 7924. Reports to Congress
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Information; consultations; separate official views; partial
report concerning uranium mill tailings provisions
Beginning on January 1, 1980, and each year thereafter until January
1, 1986, the Secretary shall submit a report to the Congress with
respect to the status of the actions required to be taken by the
Secretary, the Commission, the Secretary of the Interior, the
Administrator, and the States and Indian tribes under this chapter and
any amendments to other laws made by this Act. Each report shall --
(1) include data on the actual and estimated costs of the program
authorized by this subchapter;
(2) describe the extent of participation by the States and Indian
tribes in this program;
(3) evaluate the effectiveness of remedial actions, and describe any
problems associated with the performance of such actions; and
(4) contain such other information as may be appropriate.
Such report shall be prepared in consultation with the Commission,
the Secretary of the Interior, and the Administrator and shall contain
their separate views, comments, and recommendations, if any. The
Commission shall submit to the Secretary and Congress such portion of
the report under this subsection as relates to the authorities of the
Commission under title II of this Act.
(b) Identification of sites; Federal agency jurisdiction; contents;
duplication prohibition; use and cooperation respecting other Federal
agency information
Not later than July 1, 1979, the Secretary shall provide a report to
the Congress which identifies all sites located on public or acquired
lands of the United States containing residual radioactive materials and
other raidoactive /1/ waste (other than waste resulting from the
production of electric energy) and specifies which Federal agency has
jurisdiction over such sites. The report shall include the identity of
property and other structures in the vicinity of such site that are
contaminated or may be contaminated by such materials and the actions
planned or taken to remove such materials. The report shall describe in
what manner such sites are adequately stabilized and otherwise
controlled to prevent radon diffusion from such sites into the
environment and other environmental harm. If any site is not so
stabilized or controlled, the report shall describe the remedial actions
planned for such site and the time frame for performing such actions.
In preparing the reports under this section, the Secretary shall avoid
duplication of previous or ongoing studies and shall utilize all
information available from other departments and agencies of the United
States respecting the subject matter of such report. Such agencies
shall cooperate with the Secretary in the preparation of such report and
furnish such information as available to them and necessary for such
report.
(c) Uranium mine wastes hazards elimination program
Not later than January 1, 1980, the Administrator, in consultation
with the Commission, shall provide a report to the Congress which
identifies the location and potential health, safety, and environmental
hazards of uranium mine wastes together with recommendations, if any,
for a program to eliminate these hazards.
(d) Reports to Congressional committees
Copies of the reports required by this section to be submitted to the
Congress shall be separately submitted to the Committees on Interior and
Insular Affairs and on Energy and Commerce of the House of
Representatives and the Committee on Energy and Natural Resources of the
Senate.
(e) Documentation of information; public availability; trade
secrets and other disclosure exempt information
The Commission, in cooperation with the Secretary, shall ensure that
any relevant information, other than trade secrets and other proprietary
information otherwise exempted from mandatory disclosure under any other
provision of law, obtained from the conduct of each of the remedial
actions authorized by this subchapter and the subsequent perpetual care
of those residual radioactive materials is documented systematically,
and made publicly available conveniently for use.
(Pub. L. 95-604, title I, 114, Nov. 8, 1978, 92 Stat. 3032; H.
Res. 549, Mar. 25, 1980.)
This chapter and this Act, referred to in subsec. (a), mean Pub. L.
95-604, Nov. 8, 1978, 92 Stat. 3021, as amended, known as the Uranium
Mill Tailings Radiation Control Act of 1978. For complete
classification of this Act to the Code, see Short Title note set out
under section 7901 of this title and Tables.
Title II of this Act, referred to in subsec. (a), is title II (
201-209) of Pub. L. 95-604, Nov. 8, 1978, 92 Stat. 3033, as amended,
which enacted sections 2022, 2113, and 2114 of this title, amended
sections 2014, 2021, 2111, and 2201 of this title, and enacted
provisions set out as notes under sections 2014, 2021, and 2113 of this
title. For complete classification of title II to the Code, see Tables.
Committee on Interstate and Foreign Commerce of the House of
Representatives changed to Committee on Energy and Commerce immediately
prior to noon on Jan. 3, 1981, by House Resolution 549, Ninety-sixth
Congress, Mar. 25, 1980.
/1/ So in original. Probably should be ''radioactive''.
42 USC -- 7925. Active operations; liability for remedial action
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) No amount may be expended under this subchapter with respect to
any site licensed by the Commission under the Atomic Energy Act of 1954
(42 U.S.C. 2011 et seq.) or by a State as permitted under section 274 of
such Act (42 U.S.C. 2021) at which production of any uranium product
from ores (other than from residual radioactive materials) takes place.
(b) In the case of each processing site designated under this
subchapter, the Attorney General shall conduct a study to determine the
identity and legal responsibility which any person (other than the
United States, a State, or Indian tribe) who owned or operated or
controlled (as determined by the Attorney General) such site before
November 8, 1978, may have under any law or rule of law for reclamation
or other remedial action with respect to such site. The Attorney
General shall publish the results of such study, and provide copies
thereof to the Congress, as promptly as practicable following November
8, 1978. The Attorney General, based on such study, shall, to the
extent he deems it appropriate and in the public interest, take such
action under any provision of law in effect when uranium was produced at
such site to require payment by such person of all or any part of the
costs incurred by the United States for such remedial action for which
he determines such person is liable.
(Pub. L. 95-604, title I, 115, Nov. 8, 1978, 92 Stat. 3033.)
The Atomic Energy Act of 1954, referred to in subsec. (a), is act
Aug. 30, 1954, ch. 1073, 68 Stat. 921, as amended, which is
classified generally to chapter 23 ( 2011 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 2011 of this title and Tables.
42 USC -- SUBCHAPTER II -- STUDY AND DESIGNATION OF TWO MILL TAILING
SITES IN NEW MEXICO
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 7941. Study of authority for regulation and control of
residual radioactive materials at New Mexico sites for protection of
public health, safety, and the environment; report to Congress and
Secretary; basis for determination of inadequacy of authority; interim
regulation pending completion of study
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Commission, in consultation with the Attorney General and the
Attorney General of the State of New Mexico, shall conduct a study to
determine the extent and adequacy of the authority of the Commission and
the State of New Mexico to require, under the Atomic Energy Act of 1954
(as amended by title II of this Act) (42 U.S.C. 2011 et seq.) or under
State authority as permitted under section 274 of such Act (42 U.S.C.
2021) or under other provision of law, the owners of the following
active uranium mill sites to undertake appropriate action to regulate
and control all residual radioactive materials at such sites to protect
public health, safety, and the environment: the former Homestake-New
Mexico Partners site near Milan, New Mexico, and the Anaconda carbonate
process tailings site near Bluewater, New Mexico. Such study shall be
completed and a report thereof submitted to the Congress and to the
Secretary within one year after November 8, 1978, together with such
recommendations as may be appropriate. If the Commission determines
that such authority is not adequate to regulate and control such
materials at such sites in the manner provided in the first sentence of
this section, the Commission shall include in the report a statement of
the basis for such determination. Nothing in this chapter shall be
construed to prevent or delay action by a State as permitted under
section 274 of the Atomic Energy Act of 1954 (42 U.S.C. 2021) or under
any other provision of law or by the Commission to regulate such
residual radioactive materials at such sites prior to completion of such
study.
(Pub. L. 95-604, title III, 301, Nov. 8, 1978, 92 Stat. 3042.)
The Atomic Energy Act of 1954, referred to in text, is act Aug. 30,
1954, ch. 1073, 68 Stat. 921, as amended, which is classified
generally to chapter 23 ( 2011 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 2011 of this title and Tables.
Title II of this Act, referred to in text, is title II ( 201 to 209)
of Pub. L. 95-604, Nov. 8, 1978, 92 Stat. 3033, as amended, which
enacted sections 2022, 2113, 2114 of this title, amended sections 2014,
2021, 2111, and 2201 of this title, and enacted provisions set out as
notes under sections 2014, 2021, and 2113 of this title. For complete
classification of title II to the Code, see Tables.
42 USC -- 7942. Designation by Secretary as processing sites for
subchapter I purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) New Mexico cooperative agreement respecting certain residual
radioactive materials; submission to Congressional committees
Within ninety days from the date of his receipt of the report and
recommendations submitted by the Commission under section 7941 of this
title, notwithstanding the limitations contained in section 7911(6)(A)
and in section 7925(a) of this title, if the Commission determines,
based on such study, that such sites cannot be regulated and controlled
by the State or the Commission in the manner described in section 7941
of this title, the Secretary may designate either or both of the sites
referred to in section 7941 of this title as a processing site for
purposes of subchapter I of this chapter. Following such designation,
the Secretary may enter into cooperative agreements with New Mexico to
perform remedial action pursuant to such subchapter I concerning only
the residual radioactive materials at such site resulting from uranium
produced for sale to a Federal agency prior to January 1, 1971, under
contract with such agency. Any such designation shall be submitted by
the Secretary, together with his estimate of the cost of carrying out
such remedial action at the designated site, to the Committee on
Interior and Insular Affairs and the Committee on Energy and Commerce of
the House of Representatives and to the Committee on Energy and Natural
Resources of the Senate.
(b) Effective date
(1) /1/ No designation under subsection (a) of this section shall
take effect before the expiration of one hundred and twenty calendar
days (not including any day in which either House of Congress is not in
session because of an adjournment of more than three calendar days to a
day certain or an adjournment sine die) after receipt by such Committees
of such designation.
(c) Subchapter I provisions applicable
Except as otherwise specifically provided in subsection (a) of this
section, any remedial action under subchapter I of this chapter with
respect to any sites designated under this subchapter shall be subject
to the provisions of subchapter I of this chapter (including the
authorization of appropriations referred to in section 7922(b) of this
title).
(Pub. L. 95-604, title III, 302, Nov. 8, 1978, 92 Stat. 3042; H.
Res. 549, Mar. 25, 1980.)
Committee on Interstate and Foreign Commerce of the House of
Representatives changed to Committee on Energy and Commerce immediately
prior to noon on Jan. 3, 1981, by House Resolution 549, Ninety-sixth
Congress, Mar. 25, 1980.
/1/ So in original. Subsec. (b) enacted without a par. (2).
42 USC -- CHAPTER 89 -- CONGREGATE HOUSING SERVICES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8001. Congressional findings.
8002. Definitions.
8003. Contracts to provide congregate services programs.
8004. Congregate services program.
(a) Essential services for maintaining independent living.
(b) Duplication of services.
(c) Consultation with Area Agency on Aging or other appropriate State
agency.
(d) Submission of proposed application to Area Agency on Aging or
other appropriate State agency.
(e) Nonelderly handicapped individuals as eligible project residents.
(f) Manner of providing congregate services.
(g) Amount of annual contributions of receiving agency.
(h) Fees for meal and other services.
(i) Standards for provision of services.
8005. Eligibility for services.
(a) Professional assessment committee for determination of
eligibility.
(b) Participation of other residents in meal services program.
(c) Notification of change in membership of professional assessment
committee.
(d) Procedure for changes in membership of professional assessment
committee.
8006. Application procedure for assistance.
(a) Matters included in application.
(b) Deadlines for submission of application.
(c) Review of performance of services program prior to submission of
application for renewed funding.
8007. Evaluation of applications and programs.
(a) Application evaluations.
(b) Program evaluations.
(c) Report to Congress.
8008. Funding procedures.
8009. Miscellaneous provisions.
(a) Utilization of elderly and permanently disabled adult persons.
(b) Tax treatment of services received.
(c) Individuals receiving aid considered residents of own household.
(d) Regulations.
8010. Authorization of appropriations.
8011. Revised congregate housing services program.
(a) Findings and purposes.
(b) Contracts for congregate services programs.
(c) Reservation of amounts.
(d) Eligible activities.
(e) Eligibility for services.
(f) Eligible contract recipients and distribution of assistance.
(g) Applications.
(h) Selection and evaluation of applications and programs.
(i) Congregate services program funding.
(j) Miscellaneous provisions.
(k) Definitions.
(l) Reports to Congress.
(m) Regulations.
(n) Authorization of appropriations.
(o) Reserve fund.
8012. Hope for elderly independence.
(a) Purpose.
(b) Housing assistance.
(c) Supportive services requirements and matching funding.
(d) Applications.
(e) Selection.
(f) Required agreements.
(g) Definitions.
(h) Multifamily project demonstration.
(i) Report.
(j) Available section 8 (42 U.S.C. 1437f) assistance.
(k) Authorization of appropriations.
(l) Implementation.
8013. Supportive housing for persons with disabilities.
(a) Purpose.
(b) General authority.
(c) General requirements.
(d) Forms of assistance.
(e) Term of commitment.
(f) Applications.
(g) Selection criteria.
(h) Development cost limitations.
(i) Tenant selection.
(j) Miscellaneous provisions.
(k) Definitions.
(l) Authorizations.
(m) Effective date and applicability.
42 USC -- 8001. Congressional findings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Congress finds that --
(1) congregate housing, coordinated with the delivery of supportive
services, offers an innovative, proven, and cost-effective means of
enabling temporarily disabled or handicapped individuals to maintain
their dignity and independence and to avoid costly and unnecessary
institutionalization;
(2) a large and growing number of elderly and handicapped residents
of public housing projects and of nonprofit projects for the elderly and
handicapped face premature and unnecessary institutionalization because
of the absence of or deficiencies in the availability, adequacy,
coordination, or delivery of the supportive services required for the
successful development of adequate numbers of congregate housing
projects; and
(3) supplemental supportive services, available on a secure and
continuing basis, are essential to a successful congregate housing
program.
(Pub. L. 95-557, title IV, 402, Oct. 31, 1978, 92 Stat. 2104.)
Section 401 of title IV of Pub. L. 95-557 provided that: ''This
title (enacting this chapter and amending section 1437e of this title)
may be cited as the 'Congregate Housing Services Act of 1978'.''
42 USC -- 8002. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purpose of this chapter --
(1) the term ''congregate housing'' means (A) low-rent housing which,
as of January 1, 1979, was built or under construction, with which there
is connected a central dining facility where wholesome and economical
meals can be served to such occupants; or (B) low-rent housing
constructed after, but not under construction prior to, January 1, 1979,
connected with which there is a central dining facility to provide
wholesome and economical meals for such occupants;
(2) the term ''congregate services programs'' means programs to be
undertaken by a public housing agency or a nonprofit corporation to
provide assistance, including personal assistance and nutritional meals,
to eligible project residents who, with such assistance, can remain
independent and avoid unnecessary institutionalization;
(3) the term ''elderly'' means sixty-two years of age or over;
(4) the term ''eligible project resident'' means elderly handicapped
individuals, nonelderly handicapped individuals, or temporarily disabled
individuals, who are residents of congregate housing projects
administered by a public housing agency or by a nonprofit corporation;
(5) the term ''handicapped'' means having an impairment which (A) is
expected to be of long-continued and indefinite duration, and (B)
substantially impedes an individual's ability to live independently
unless the individual receives supportive congregate services; such
impairment may include a functional disability or frailty which is a
normal consequence of the human aging process;
(6) the term ''personal assistance'' means service provided under
this chapter which may include, but is not limited to, aid given to
eligible project residents in grooming, dressing, and other activities
which maintain personal appearance and hygiene;
(7) the term ''professional assessment committee'' means a group of
at least three persons appointed by a local public housing agency or a
nonprofit corporation and shall include qualified medical professionals
and other persons professionally competent to appraise the functional
abilities of elderly or permanently disabled adult persons, or both, in
relation to the performance of the normal tasks of daily living;
(8) the term ''temporarily disabled'' means an impairment which (A)
is expected to be of no more than six months' duration, and (B)
substantially impedes an individual's ability to live independently
unless the individual receives supportive congregate services; and
(9) the term ''nonprofit corporation'' means any corporation
responsible for a housing project assisted under section 1701q of title
12.
(Pub. L. 95-557, title IV, 403, Oct. 31, 1978, 92 Stat. 2105.)
42 USC -- 8003. Contracts to provide congregate services programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary of Housing and Urban Development (hereinafter referred
to as the ''Secretary'') is authorized to enter into contracts with
local public housing agencies under the United States Housing Act of
1937 (42 U.S.C. 1437 et seq.) (hereinafter referred to as ''public
housing agencies'') and with nonprofit corporations, utilizing sums
appropriated under this chapter, to provide congregate services programs
for eligible project residents in order to promote and encourage maximum
independence within a home environment for such residents capable of
self-care with appropriate supportive congregate services. Each
contract between the Secretary and a public housing agency or nonprofit
corporation shall be for a term of not less than three years or more
than five years and shall be renewable at the expiration of such term.
Each public housing agency or nonprofit corporation entering into such a
contract shall be reserved a sum equal to its total approved contract
amount from the moneys authorized and appropriated for the fiscal year
in which the notification date of funding approval falls.
(Pub. L. 95-557, title IV, 404, Oct. 31, 1978, 92 Stat. 2106.)
The United States Housing Act of 1937, referred to in text, is act
Sept. 1, 1937, ch. 896, as revised generally by Pub. L. 93-383, title
II, 201(a), Aug. 22, 1974, 88 Stat. 653, which is classified
generally to chapter 8 ( 1437 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 1437 of this title and Tables.
42 USC -- 8004. Congregate services program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Essential services for maintaining independent living
Congregate services programs assisted under this chapter must include
full meal service adequate to meet nutritional needs, and may also
include housekeeping aid, personal assistance, and other services
essential for maintaining independent living.
(b) Duplication of services
No services funded under this chapter may duplicate services which
are already affordable, accessible, and sufficiently available on a
long-term basis to eligible project residents under programs
administered by or receiving appropriations through any department,
agency, or instrumentality of the Federal Government or any other public
or private department, agency, or organization.
(c) Consultation with Area Agency on Aging or other appropriate State
agency
A public housing agency or nonprofit corporation applying for
assistance to provide congregate services to elderly residents shall
consult with the Area Agency on Aging (or, where no Area Agency on Aging
exists, with the appropriate State agency under the Older Americans Act
of 1965 (42 U.S.C. 3001 et seq.)) in determining the means of providing
services under this chapter and in identifying alternative available
sources of funding for such services.
(d) Submission of proposed application to Area Agency on Aging or
other appropriate State agency
Prior to the submission of a final application for either new or
renewed funding under this chapter for the provision of congregate
services to elderly residents, a public housing agency and a nonprofit
corporation shall present a copy of a proposed application to the Area
Agency on Aging (or, where no Area Agency on Aging exists to the
appropriate State agency under the Older Americans Act of 1965 (42
U.S.C. 3001 et seq.)) for review and comment. Such agency and nonprofit
corporation shall consider such review and comment in the development of
any final application for either new or renewed funding under this
chapter.
(e) Nonelderly handicapped individuals as eligible project residents
(1) A public housing agency or nonprofit corporation applying for
assistance to provide congregate services to nonelderly handicapped
residents shall consult with the appropriate agency, if any, designated
by applicable State law as having responsibility for the development,
provision, or identification of social services to permanently disabled
adults, for the purpose of determining the means of providing services
under this chapter and of identifying alternative available sources of
funding for such services.
(2) Such public housing agency and nonprofit corporation shall also,
prior to the submission of a final application for either new or renewed
funding under this chapter, present a copy of the proposed application
to such appropriate agency for review and comment. The public housing
agency and nonprofit corporation shall consider such review and comment
in the development of any final application for either new or renewed
funding under this chapter.
(f) Manner of providing congregate services
Any nonprofit corporation or public housing agency receiving
assistance under this chapter may provide congregate services directly
to eligible project residents or may, by contract or lease, provide such
services through other appropriate agencies or providers.
(g) Amount of annual contributions of receiving agency
Nonprofit corporations and public housing agencies receiving
assistance for congregate services programs under this chapter shall be
required to maintain the same dollar amount of annual contribution which
they were making, if any, in support of the provision of services
eligible for assistance under this chapter before the date of the
submission of the application for such assistance unless the Secretary
determines that the waiver of this requirement is necessary for the
maintenance of adequate levels of services to eligible project
residents. If any contract or lease entered into by a public housing
agency or nonprofit corporation pursuant to subsection (f) of this
section provides for adjustments in payments for services to reflect
changes in the cost of living, then the amount of annual contribution
required to be maintained by such public agency or nonprofit corporation
under the preceding sentence shall be readjusted in the same manner.
(h) Fees for meal and other services
Each nonprofit corporation and public housing agency shall establish
fees for meal service and other appropriate services provided to
eligible project residents. These fees shall be reasonable, may not
exceed the cost of providing the service, and shall be calculated on a
sliding scale related to income which permits the provision of services
to such residents who cannot afford meal and service fees. When meal
services are provided to other project residents, fees shall be
reasonable and may not exceed the cost of providing the meal service.
(i) Standards for provision of services
The Secretary shall establish standards for the provision of services
under this chapter, and, in developing such service standards, the
Secretary shall consult with the Secretary of Health and Human Services
and with appropriate organizations representing the elderly and
handicapped, as determined by the Secretary.
(Pub. L. 95-557, title IV, 405, Oct. 31, 1978, 92 Stat. 2106; Pub.
L. 96-399, title II, 208, Oct. 8, 1980, 94 Stat. 1634; Pub. L.
98-479, title II, 201(j), Oct. 17, 1984, 98 Stat. 2228.)
The Older Americans Act of 1965, referred to in subsecs. (c) and
(d), is Pub. L. 89-73, July 14, 1965, 79 Stat. 218, as amended, which
is classified generally to chapter 35 ( 3001 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 3001 of this title and Tables.
1984 -- Subsec. (i). Pub. L. 98-479 substituted ''Health and Human
Services'' for ''the Department of Health, Education, and Welfare''.
1980 -- Subsecs. (c), (d). Pub. L. 96-399, 208(a), (b), inserted
reference to congregate services to elderly residents.
Subsec. (e). Pub. L. 96-399, 208(c), in par. (1) substituted ''A
public housing agency or nonprofit corporation applying for assistance
to provide congregate services to nonelderly handicapped residents shall
consult with the appropriate agency'' for ''When nonelderly handicapped
individuals are included among the eligible project residents, the
public housing agency and nonprofit corporation shall consult with the
appropriate local agency'', and in par. (2) substituted ''appropriate
agency'' for ''appropriate local agency''.
42 USC -- 8005. Eligibility for services
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Professional assessment committee for determination of
eligibility
The identification of project residents eligible to participate in a
congregate services program assisted under this chapter, and the
designation of the services appropriate to their individual functional
abilities and needs, shall be made by a professional assessment
committee. Such committee shall utilize procedures which insure that
the process of determining eligibility of individuals for services under
this title shall accord such individuals fair treatment and due process
and a right of appeal of such determination of eligibility, and shall
also assure the confidentiality of personal and medical records.
(b) Participation of other residents in meal services program
Other residents may participate in a congregate meal service program
assisted under this chapter if the local public housing agency or
nonprofit corporation determines that the participation of these
individuals will not adversely affect the cost-effectiveness or
operation of the program.
(c) Notification of change in membership of professional assessment
committee
Any public housing agency or nonprofit corporation receiving
assistance under this chapter shall notify the Secretary of any change
in the membership of the professional assessment committee within thirty
days of such change. Such notification shall list the names and
professional qualifications of new members of the committee.
(d) Procedure for changes in membership of professional assessment
committee
Procedures shall be established to insure that changes in the
membership of the professional assessment committee are consistent with
the requirements of section 8002(7) of this title.
(Pub. L. 95-557, title IV, 406, Oct. 31, 1978, 92 Stat. 2107.)
42 USC -- 8006. Application procedure for assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Matters included in application
An application for assistance under this chapter shall include --
(1) a plan specifying the types and priorities of the basic services
the public housing agency or nonprofit corporation proposes to provide
during the term of the contract; such plan must be related to the needs
and characteristics of the eligible project residents and, to the
maximum extent practicable, provide for the changing needs and
characteristics of all project residents; such plan shall be determined
after consultation with eligible project residents and with the
professional assessment committee;
(2) a list of names and professional qualifications of the members of
the professional assessment committee;
(3) the fee schedule established pursuant to section 8004(h) of this
title;
(4) any comment received in connection with any review of a proposed
application pursuant to section 8004(d) or 8004(e)(2) of this title;
and
(5) a statement affirming (A) that the nonprofit corporation or
public housing agency has followed the consultation procedures required
in subsections (c), (d), and (e) of section 8004 of this title, and (B)
that such application complies with subsection (b) of such section.
(b) Deadlines for submission of application
The Secretary shall establish appropriate deadlines for each fiscal
year for the submission of applications for funding under this chapter
and shall notify any public housing agency and nonprofit corporation
applying for assistance under this chapter of acceptance or rejection of
its application within ninety days of such submission.
(c) Review of performance of services program prior to submission of
application for renewed funding
Within twelve months prior to the submission of an application for
renewed funding under this chapter, each nonprofit corporation and
public housing agency shall review the performance, appropriateness, and
fee schedules of their congregate services program with eligible project
residents and with the professional assessment committee. The results
of such review shall be included in any application for renewal and
shall be considered in the development of the application for renewal by
the nonprofit corporation or public housing agency and in its evaluation
by the Secretary.
(Pub. L. 95-557, title IV, 407, Oct. 31, 1978, 92 Stat. 2108.)
42 USC -- 8007. Evaluation of applications and programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Application evaluations
In evaluating applications for assistance under this chapter, the
Secretary shall consider --
(1) the types and priorities of the basic services proposed to be
provided, and the relationship of such proposal to the needs and
characteristics of the eligible residents of the projects where the
services are to be provided;
(2) how quickly services will be established following approval of
the application;
(3) the degree to which local social services are adequate for the
purpose of assisting eligible project residents to maintain independent
living and avoid unnecessary institutionalization;
(4) the professional qualifications of the members of the
professional assessment committee; and
(5) the reasonableness of fee schedules established for each
congregate service.
(b) Program evaluations
In evaluating programs receiving assistance under this chapter, the
Secretary shall --
(1) establish procedures for the review and evaluation of the
performance of nonprofit corporations and public housing agencies
receiving assistance under this chapter, including provisions for the
submission of an annual report, by each such nonprofit corporation and
public housing agency, which evaluates the impact and effectiveness of
its congregate services program; and
(2) publish annually and submit to the Congress, a report on and
evaluation of the impact and effectiveness of congregate services
programs assisted under this chapter. Such report and evaluation shall
be based, in part, on the evaluations required to be submitted pursuant
to paragraph (1).
(c) Report to Congress
(1) The Secretary shall contract with a university or qualified
research institution to produce a report --
(A) documenting the number of elderly living in federally assisted
housing at risk of institutionalization;
(B) studying and comparing alternative delivery systems in the
States, including the congregate housing services program, to provide
services to older persons in assisted congregate housing;
(C) assessing existing and potential financial resources at the
Federal, State, and local levels for the support of congregate housing
services; and
(D) making legislative recommendations as to the feasibility of
permitting State housing agencies and other appropriate State agencies
to participate and operate the program on a matching grant basis.
(2) The Secretary shall submit the report to the Congress not later
than September 30, 1988.
(Pub. L. 95-557, title IV, 408, Oct. 31, 1978, 92 Stat. 2108; Pub.
L. 98-181, title II, 224(a), Nov. 30, 1983, 97 Stat. 1191; Pub. L.
100-242, title I, 163(b), (c), Feb. 5, 1988, 101 Stat. 1860.)
1988 -- Subsec. (c). Pub. L. 100-242 added subsec. (c) and struck
out former subsec. (c) which required Secretary to prepare and submit a
report to Congress evaluating the congregate housing services program,
not later than March 15, 1984.
1983 -- Subsec. (c). Pub. L. 98-181 added subsec. (c).
42 USC -- 8008. Funding procedures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Secretary shall establish procedures --
(1) to assure timely payments to nonprofit corporations and public
housing agencies for approved assisted congregate services programs with
provision made for advance funding sufficient to meet necessary startup
costs;
(2) to permit reallocation of funds approved for the establishment of
congregate services in existing public housing projects and projects
assisted under section 1701q of title 12 if the services are not
established within six months of the notification date of funding
approval;
(3) to assure that where such funding has been approved for the
establishment of congregate services for public housing projects and
projects assisted under section 1701q of title 12 under construction or
approved for construction, these services shall be in place at the start
of the project's occupancy by tenants requiring such services for
maintaining independent living;
(4) to establish accounting and other standards in order to prevent
any fraudulent or inappropriate use of funds under this chapter; and
(5) to assure that no more than 1 per centum of the funds
appropriated under this chapter for any fiscal year may be used by
public housing agencies and nonprofit corporations for evaluative
purposes as required by section 8007(b)(1) of this title.
(b) The Secretary shall establish a reserve fund, not to exceed 10
per centum of the funds appropriated in each fiscal year for the
provision of services under this chapter, in order to supplement grants
awarded to public housing agencies and nonprofit corporations under this
chapter when, in the determination of the Secretary, such supplemental
adjustments are required to maintain adequate levels of services to
eligible project residents.
(Pub. L. 95-557, title IV, 409, Oct. 31, 1978, 92 Stat. 2109.)
42 USC -- 8009. Miscellaneous provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Utilization of elderly and permanently disabled adult persons
Each public housing agency and nonprofit corporation shall, to the
maximum extent practicable, utilize elderly and permanently disabled
adult persons who are residents of public housing projects or projects
assisted under section 1701q of title 12, but who are not eligible
project residents, to participate in providing the services assisted
under this chapter. Such persons shall be paid wages which shall not be
lower than whichever is the highest of --
(1) the minimum wage which would be applicable to the employee under
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), if section
6(a)(1) of such Act (29 U.S.C. 206(a)(1)) applied to the resident and if
he or she were not exempt under section 13 (29 U.S.C. 213) thereof;
(2) the State or local minimum wage for the most nearly comparable
covered employment; or
(3) the prevailing rates of pay for persons employed in similar
public occupations by the same employer.
(b) Tax treatment of services received
No service provided to a public housing resident or to a resident of
a housing project assisted under section 1701q of title 12 under this
chapter, except for wages paid under subsection (a) of this section, may
be treated as income for the purpose of any other program or provision
of State or Federal law.
(c) Individuals receiving aid considered residents of own household
Individuals receiving services assisted under this chapter shall be
deemed to be residents of their own households, and not to be residents
of a public institution, for the purpose of any other program or
provision of State or Federal law.
(d) Regulations
The Secretary may issue regulations to carry out the provisions of
this chapter.
(Pub. L. 95-557, title IV, 410, Oct. 31, 1978, 92 Stat. 2109.)
The Fair Labor Standards Act of 1938, referred to in subsec. (a)(1),
is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended, which is
classified generally to chapter 8 ( 201 et seq.) of Title 29, Labor.
For complete classification of this Act to the Code, see section 201 of
Title 29 and Tables.
42 USC -- 8010. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) There are authorized to be appropriated to carry out this chapter
$10,000,000 for each of the fiscal years 1988 and 1989.
(b) Sums appropriated pursuant to this section shall remain available
until expended.
(Pub. L. 95-557, title IV, 411, Oct. 31, 1978, 92 Stat. 2110; Pub.
L. 98-181, title II, 224(b), Nov. 30, 1983, 97 Stat. 1191; Pub. L.
98-479, title I, 102(f), Oct. 17, 1984, 98 Stat. 2222; Pub. L.
100-242, title I, 163(a), Feb. 5, 1988, 101 Stat. 1860.)
1988 -- Subsec. (a). Pub. L. 100-242 amended subsec. (a) generally,
substituting provisions authorizing appropriations to carry out this
chapter for fiscal years 1988 and 1989, for provisions authorizing
appropriations to carry out this chapter for fiscal years 1979 through
1982, 1984, and 1985.
1984 -- Subsec. (a)(4). Pub. L. 98-479 inserted a semicolon at end.
1983 -- Subsec. (a)(5), (6). Pub. L. 98-181 added pars. (5) and
(6).
42 USC -- 8011. Revised congregate housing services program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Findings and purposes
(1) Findings
The Congress finds that --
(A) the effective provision of congregate services may require the
redesign of units and buildings to meet the special physical needs of
the frail elderly persons and the creation of congregate space to
accommodate services that enhance independent living;
(B) congregate housing, coordinated with the delivery of supportive
services, offers an innovative, proven, and cost-effective means of
enabling frail older persons and persons with disabilities to maintain
their dignity and independence;
(C) independent living with assistance is a preferable housing
alternative to institutionalization for many frail older persons and
persons with disabilities;
(D) 365,000 persons in federally assisted housing experience some
form of frailty, and the number is expected to increase as the general
population ages;
(E) an estimated 20 to 30 percent of older adults living in federally
assisted housing experience some form of frailty;
(F) a large and growing number of frail elderly residents face
premature or unnecessary institutionalization because of the absence of
or deficiencies in the availability, adequacy, coordination, or delivery
of supportive services;
(G) the support service needs of frail residents of assisted housing
are beyond the resources and experience that housing managers have for
meeting such needs;
(H) supportive services would promote the invaluable option of
independent living for nonelderly persons with disabilities in federally
assisted housing;
(I) approximately 25 percent of congregate housing services program
sites provide congregate services to young individuals with
disabilities;
(J) to the extent that institutionalized older adults do not need the
full costly support provided by such care, public moneys could be more
effectively spent providing the necessary services in a noninstitutional
setting; and
(K) the Congregate Housing Services Program, established by Congress
in 1978, and similar programs providing in-home services have been
effective in preventing unnecessary institutionalization and encouraging
deinstitutionalization.
(2) Purposes
The purposes of this section are --
(A) to provide assistance to retrofit individual dwelling units and
renovate public and common areas in eligible housing to meet the special
physical needs of eligible residents;
(B) to create and rehabilitate congregate space in or adjacent to
such housing to accommodate supportive services that enhance independent
living;
(C) to improve the capacity of management to assess the service needs
of eligible residents, coordinate the provision of supportive services
that meet the needs of eligible residents and ensure the long-term
provision of such services;
(D) to provide services in federally assisted housing to prevent
premature and inappropriate institutionalization in a manner that
respects the dignity of the elderly and persons with disabilities;
(E) to provide readily available and efficient supportive services
that provide a choice in supported living arrangements by utilizing the
services of an on-site coordinator, with emphasis on maintaining a
continuum of care for the vulnerable elderly;
(F) to improve the quality of life of older Americans living in
federally assisted housing;
(G) to preserve the viability of existing affordable housing projects
for lower-income older residents who are aging in place by assisting
managers of such housing with the difficulties and challenges created by
serving older residents;
(H) to develop partnerships between the Federal Government and State
governments in providing services to the frail elderly and persons with
disabilities; and
(I) to utilize Federal and State funds in a more cost-effective and
humane way in serving the needs of older adults.
(b) Contracts for congregate services programs
(1) In general
The Secretary of Housing and Urban Development and the Secretary of
Agriculture (through Administrator of the Farmers Home Administration)
shall enter into contracts with States, Indian tribes, units of general
local government and local nonprofit housing sponsors, utilizing any
amounts appropriated under subsection (n) of this section --
(A) to provide congregate services programs for eligible project
residents to promote and encourage maximum independence within a home
environment for such residents capable of self-care with appropriate
supportive services; or
(B) to adapt housing to better accommodate the physical requirements
and service needs of eligible residents.
(2) Term of contracts
Each contract between the Secretary concerned and a State, Indian
tribe, or unit of general local government, or local nonprofit housing
sponsor, shall be for a term of 5 years and shall be renewable at the
expiration of the term, except as otherwise provided in this section.
(c) Reservation of amounts
For each State, Indian tribe, unit of general local government, and
nonprofit housing sponsor, receiving a contract under this subsection,
/1/ the Secretary concerned shall reserve a sum equal to the total
approved contract amount from the amount authorized and appropriated for
the fiscal year in which the notification date of funding approval
occurs.
(d) Eligible activities
(1) In general
A congregate services program under this section shall provide meal
and other services for eligible project residents (and other residents
and nonresidents, as provided in subsection (e) of this section), as
provided in this section, that are coordinated on site.
(2) Meal services
Congregate services programs assisted under this section shall
include meal service adequate to meet at least one-third of the daily
nutritional needs of eligible project residents, as follows:
(A) Food stamps and agricultural commodities
In providing meal services under this paragraph, each congregate
services program --
(i) shall --
(I) apply for approval as a retail food store under section 2018 of
title 7; and
(II) if approved under such section, accept coupons (as defined in
section 2012(e) of title 7) as payment from individuals to whom such
meal services are provided; and
(ii) shall request, and use to provide such meal services,
agricultural commodities made available without charge by the Secretary
of Agriculture.
(B) Preference for nutrition providers
In contracting for or otherwise providing for meal services under
this paragraph, each congregate services program shall give preference
to any provider of meal services who --
(i) receives assistance under title III of the Older Americans Act of
1965 (42 U.S.C. 3021 et seq.); or
(ii) has experience, according to standards as the Secretary shall
require, in providing meal services in a housing project under the
Congregate Housing Services Act of 1978 (42 U.S.C. 8001 et seq.) or any
other program for congregate services.
(3) Retrofit and renovation
Assistance under this section may be provided with respect to
eligible housing for the elderly for --
(A) retrofitting of individual dwelling units to meet the special
physical needs of current or future residents who are or are expected to
be eligible residents, which retrofitting may include --
(i) widening of doors to allow passage by persons with disabilities
in wheelchairs into and within units in the project;
(ii) placement of light switches, electrical outlets, thermostats and
other environmental controls in accessible locations;
(iii) installation of grab bars in bathrooms or the placement of
reinforcements in bathroom walls to allow later installation of grab
bars;
(iv) redesign of usable kitchens and bathrooms to permit a person in
a wheelchair to maneuver about the space; and
(v) such other features of adaptive design that the Secretary finds
are appropriate to meet the special needs of such residents;
(B) such renovation as is necessary to ensure that public and common
areas are readily accessible to and usable by eligible residents;
(C) renovation, conversion, or combination of vacant dwelling units
to create congregate space to accommodate the provision of supportive
services to eligible residents;
(D) renovation of existing congregate space to accommodate the
provision of supportive services to eligible residents; and
(E) construction or renovation of facilities to create conveniently
located congregate space to accommodate the provision of supportive
services to eligible residents.
For purposes of this paragraph, the term ''congregate space'' shall
include space for cafeterias or dining halls, community rooms or
buildings, workshops, adult day health facilities, or other outpatient
health facilities, or other essential service facilities.
(4) Service coordinator
Assistance under this section may be provided with respect to the
employment of one or more individuals (hereinafter referred to as
''service coordinator'') who may be responsible for --
(A) working with the professional assessment committee established
under subsection (f) /2/ of this section on an ongoing basis to assess
the service needs of eligible residents;
(B) working with service providers and the professional assessment
committee to tailor the provision of services to the needs and
characteristics of eligible residents;
(C) mobilizing public and private resources to ensure that the
qualifying supportive services identified pursuant to subsection (d) of
this section can be funded over the time period identified under such
subsection;
(D) monitoring and evaluating the impact and effectiveness of any
supportive service program receiving capital or operating assistance
under this section; and
(E) performing such other duties and functions that the Secretary
deems appropriate to enable frail elderly persons residing in federally
assisted housing to live with dignity and independence.
The Secretary shall establish such minimum qualifications and
standards for the position of service coordinator that the Secretary
deems necessary to ensure sound management. The Secretary may fund the
employment of service coordinators by using amounts appropriated under
this section and by permitting owners to use existing sources of funds,
including excess project reserves.
(5) Other services
Congregate services programs assisted under this section may include
services for transportation, personal care, dressing, bathing,
toileting, housekeeping, chore assistance, nonmedical counseling,
assessment of the safety of housing units, group and socialization
activities, assistance with medications (in accordance with any
applicable State law), case management, personal emergency response, and
other services to prevent premature and unnecessary institutionalization
of eligible project residents.
(6) Determination of needs
In determining the services to be provided to eligible project
residents under a congregate services program assisted under this
section, the program shall provide for consideration of the needs and
wants of eligible project residents.
(7) Fees
(A) Eligible project residents
The owner of each eligible housing project shall establish fees for
meals and other services provided under a congregate services program to
eligible project residents, which shall be sufficient to provide 10
percent of the costs of the services provided. The Secretary concerned
shall provide for the waiver of fees under this paragraph for
individuals whose incomes are insufficient to provide for any payment.
The fees for meals shall be in the following amounts:
(i) Full meal services
The fees for residents receiving more than 1 meal per day, 7 days per
week, shall be reasonable and shall equal between 10 and 20 percent of
the adjusted income of the project resident (as such income is
determined under section 3(b) of the United States Housing Act of 1937
(42 U.S.C. 1437a(b))), or the cost of providing the services, whichever
is less.
(ii) Less than full meal services
The fees for residents receiving meal services less frequently than
as described in the preceding sentence shall be in an amount equal to 10
percent of such adjusted income of the project resident or the cost of
providing the services, whichever is less.
(B) Other residents and nonresidents
Fees shall be established under this paragraph for residents of
eligible housing projects (other than eligible project residents) and
for nonresidents that receive services from a congregate services
program pursuant to subsection (e) of this section. Such fees shall be
in an amount equal to the cost of providing the services.
(8) Direct and indirect provision of services
Any State, Indian tribe, unit of general local government, or
nonprofit housing sponsor that receives assistance under this section
may provide congregate services directly to eligible project residents
or may, by contract or lease, provide such services through other
appropriate agencies or providers.
(e) Eligibility for services
(1) Eligible project residents
Any eligible resident who is a resident of an eligible housing
project (or who with deinstitutionalization and appropriate supportive
services under this section could become a resident of eligible
federally assisted housing) shall be eligible for services under a
congregate services program assisted under this section.
(2) Economic need
In providing services under a congregate services program, the
program shall give consideration to serving eligible project residents
with the greatest economic need.
(3) Identification
(A) In general
A professional assessment committee under subparagraph (B) shall
identify eligible project residents under paragraph (1) and shall
designate services appropriate to the functional abilities and needs of
each eligible project resident. The committee shall utilize procedures
that ensure that the process of determining eligibility of individuals
for congregate services shall accord such individuals fair treatment and
due process and a right of appeal of the determination of eligibility,
and shall also ensure the confidentiality of personal and medical
records.
(B) Professional assessment committee
A professional assessment committee under this section shall consist
of not less than 3 individuals, who shall be appointed to the committee
by the officials of the eligible housing project responsible for the
congregate services program, and shall include qualified medical and
other health and social services professionals competent to appraise the
functional abilities of the frail elderly and persons with disabilities
in relation to the performance of tasks of daily living.
(4) Eligibility of other residents
The elderly and persons with disabilities who reside in an eligible
housing project other than eligible project residents under paragraph
(1) may receive services from a congregate services program under this
section if the housing managers, congregate service coordinators, and
the professional assessment committee jointly determine that the
participation of such individuals will not negatively affect the
provision of services to eligible project residents. Residents eligible
for services under this paragraph shall pay fees as provided under
subsection (d) of this section.
(5) Eligibility of nonresidents
The Secretary may permit the provision of services to elderly persons
and persons with disabilities who are not residents if the participation
of such persons will not adversely affect the cost-effectiveness or
operation of the program or add significantly to the need for assistance
under this section.
(f) Eligible contract recipients and distribution of assistance
The Secretary concerned may provide assistance under this section and
enter into contracts under subsection (b) of this section with --
(1) owners of eligible housing;
(2) States that submit applications in behalf of owners of eligible
housing; and
(3) Indian tribes and units of general local government that submit
applications on behalf of owners of eligible housing.
(g) Applications
The funds made available under this section shall be allocated by the
Secretary among approvable applications submitted by or on behalf of
owners. Applications for assistance under this section shall be
submitted in such form and in accordance with such procedures as the
Secretary shall establish. Applications for assistance shall contain --
(1) a description of the type of assistance the applicant is applying
for;
(2) in the case of an application involving rehabilitation or
retrofit, a description of the activities to be carried out, the number
of elderly persons to be served, the costs of such activities, and
evidence of a commitment for the services to be associated with the
project;
(3) a description of qualifying supportive services that can
reasonably be expected to be made available to eligible residents over a
5-year period;
(4) a firm commitment from one or more sources of assistance ensuring
that some or all of the qualifying supportive services identified under
paragraph (3) will be provided for not less than 1 year following the
completion of activities assisted under subsection (d) of this section;
(5) a description of public or private sources of assistance that are
likely to fund or provide qualifying supportive services, including
evidence of any intention to provide assistance expressed by State and
local governments, private foundations, and other organizations
(including for-profit and nonprofit organizations);
(6) a certifications /3/ from the appropriate State or local agency
(as determined by the Secretary) that --
(A) the provision of the qualifying supportive services identified
under paragraph (3) will enable eligible residents to live independently
and avoid unnecessary institutionalization,
(B) there is a reasonable likelihood that such services will be
funded or provided for the entire period specified under paragraph (3),
and
(C) the agency and the applicant will, during the term of the
contract, actively seek assistance for such services from other sources;
(7) a description of any fees that would be established pursuant to
subsection (d) of this section; and
(8) such other information or certifications that the Secretary
determines to be necessary or appropriate to achieve the purposes of
this section.
The Secretary shall act on each application within 60 days of its
submission.
(h) Selection and evaluation of applications and programs
(1) In general
Each Secretary concerned shall establish criteria for selecting
States, Indian tribes, units of general local government, and local
nonprofit housing sponsors to receive assistance under this section, and
shall select such entities to receive assistance. The criteria for
selection shall include consideration of --
(A) the extent to which the activities described in subsection (d)(3)
of this section will foster independent living and the provision of such
services;
(B) the types and priorities of the basic services proposed to be
provided, the appropriateness of the targeting of services, the methods
of providing for deinstitutionalized older individuals and individuals
with disabilities, and the relationship of the proposal to the needs and
characteristics of the eligible residents of the projects where the
services are to be provided;
(C) the schedule for establishment of services following approval of
the application;
(D) the degree to which local social services are adequate for the
purpose of assisting eligible project residents to maintain independent
living and avoid unnecessary institutionalization;
(E) the professional qualifications of the members of the
professional assessment committee;
(F) the reasonableness and application of fees schedules established
for congregate services;
(G) the adequacy and accuracy of the proposed budgets; and
(H) the extent to which the owner will provide funds from other
services in excess of that required by this section.
(2) Evaluation of provision of congregate services programs
The Secretary of Housing and Urban Development and the Secretary of
Agriculture shall, by regulation under subsection (n) /4/ of this
section, establish procedures for States, Indian tribes, and units of
general local government receiving assistance under this section --
(A) to review and evaluate the performance of the congregate services
programs of eligible housing projects receiving assistance under this
section in such State; and
(B) to submit annually, to the Secretary concerned, a report
evaluating the impact and effectiveness of congregate services programs
in the entity assisted under this section.
(i) Congregate services program funding
(1) Cost distribution
(A) Contribution requirement
In providing contracts under subsection (b) of this section, each
Secretary concerned shall provide for the cost of providing the
congregate services program assisted under this section to be
distributed as follows:
(i) Each State, Indian tribe, unit of general /5/ government, or
nonprofit housing sponsor that receives amounts under a contract under
subsection (b) of this section shall supplement any such amount with
amounts sufficient to provide 50 percent of the cost of providing the
congregate services program. Any monetary or in-kind contributions
received by a congregate services program under the Congregate Housing
Services Act of 1978 (42 U.S.C. 8001 et seq.) may be considered for
purposes of fulfilling the requirement under this clause. The Secretary
concerned shall encourage owners to use excess residual receipts to the
extent available to supplement funds for retrofit and supportive
services under this section.
(ii) The Secretary concerned shall provide 40 percent of the cost,
with amounts under contracts under subsection (b) of this section.
(iii) Fees under subsection (d)(7) of this section shall provide 10
percent of the cost.
(B) Exceptions
(i) For any congregate services program that was receiving assistance
under a contract under the Congregate Housing Services Act of 1978 (42
U.S.C. 8001 et seq.) on November 28, 1990, /6/ the unit of general local
government or nonprofit housing sponsor, in coordination with a local
government with respect to such program shall not be subject to the
requirement to provide supplemental contributions under subparagraph
(A)(i) (for such program) for the 3-year period beginning on the
expiration of the contract for such assistance. The Secretary concerned
shall require each such program to maintain, for such 3-year period, the
same dollar amount of annual contributions in support of the services
eligible for assistance under this section as were contributed to such
program during the year preceding November 28, 1990. /6/
(ii) To the extent that the limitations under subsection (d)(7) of
this section regarding the percentage of income eligible residents may
pay for services will result in collected fees for any congregate
services program of less than 10 percent of the cost of providing the
program, 50 percent of such remaining costs shall be provided by the
recipient of amounts under the contract and 50 percent of such remaining
costs shall be provided by the Secretary concerned under such contract.
(C) Eligible supplemental contributions
If provided by the State, Indian tribe, unit of general local
government, or local nonprofit housing sponsor, any salary paid to staff
from governmental sources to carry out the program of the recipient and
salary paid to residents employed by the program (other than from
amounts under a contract under subsection (b) of this section), and any
other in-kind contributions from governmental sources shall be
considered as supplemental contributions for purposes of meeting the
supplemental contribution requirement under subparagraph (A)(i), except
that the amount of in-kind contributions considered for purposes of
fulfilling such contribution requirement may not exceed 10 percent of
the total amount to be provided by the State, Indian tribe, local
government, or local nonprofit housing sponsor.
(D) Prohibition of substitution of funds
The Secretary concerned shall require each State, Indian tribe, unit
of general local government, and local nonprofit housing sponsor, that
receives assistance under this section to maintain the same dollar
amount of annual contribution that such State, Indian tribe, local
government, or sponsor was making, if any, in support of services
eligible for assistance under this section before the date of the
submission of the application for such assistance.
(E) Limitation
For purposes of complying with the requirement under subparagraph
(A)(i), the appropriate Secretary concerned may not consider any amounts
contributed or provided by any local government to any State receiving
assistance under this section that exceed 10 percent of the amount
required of the State under subparagraph (A)(i).
(2) Consultation
The Secretary shall consult with the Secretary of Health and Human
Services regarding the availability of assistance from other Federal
programs to support services under this section and shall make
information available to applicants for assistance under this section.
(j) Miscellaneous provisions
(1) Use of residents in providing services
Each housing project that receives assistance under this section
shall, to the maximum extent practicable, utilize the elderly and
persons with disabilities who are residents of the housing project, but
who are not eligible project residents, to participate in providing the
services provided under congregate services programs under this section.
Such individuals shall be paid wages that shall not be lower than the
higher of --
(A) the minimum wage that would be applicable to the employee under
the Fair Labor Standards Act of 1938 (29 U.S.C. 201 et seq.), if section
6(a)(1) of such Act (29 U.S.C. 206(a)(1)) applied to the resident and if
the resident were not exempt under section 13 of such Act (29 U.S.C.
213);
(B) the State of /7/ local minimum wage for the most nearly
comparable covered employment; or
(C) the prevailing rates of pay for persons employed in similar
public occupations by the same employer.
(2) Effect of services
Except for wages paid under paragraph (1) of this subsection,
services provided to a resident of an eligible housing project under a
congregate services program under this section may not be considered as
income for the purpose of determining eligibility for or the amount of
assistance or aid furnished under any Federal, federally assisted, or
State program based on need.
(3) Eligibility and priority for 1978 Act recipients
Notwithstanding any other provision of this section, any public
housing agency, housing assisted under section 1701q of title 12, or
nonprofit corporation that was receiving assistance under a contract
under the Congregate Housing Services Act of 1978 (42 U.S.C. 8001 et
seq.) on November 5, 1990, /8/ shall (subject to approval and allocation
of sufficient amounts under the Congregate Housing Services Act of 1978
and appropriations Acts under such Act) receive assistance under the
Congregate Housing Services Act of 1978 for the remainder of the term of
the contract for assistance for such agency or corporation under such
Act, and shall receive priority for assistance under this section after
the expiration of such period.
(4) Administrative cost limitation
A recipient of assistance under this section may not use more than 10
percent of the sum of such assistance and the contribution amounts
required under subsection (i)(1)(A)(i) of this section for
administrative costs and shall ensure that any entity to which the
recipient distributes amounts from such sum may not expend more than a
reasonable amount from such distributed amounts for administrative
costs. Administrative costs may not include any capital expenses.
(k) Definitions
For purposes of this section:
(1) The term ''activity of daily living'' means an activity regularly
necessary for personal care and includes bathing, dressing, eating,
getting in and out of bed and chairs, walking, going outdoors, and using
the toilet.
(2) The term ''case management'' means assessment of the needs of a
resident, ensuring access to and coordination of services for the
resident, monitoring delivery of services to the resident, and periodic
reassessment to ensure that services provided are appropriate to the
needs and wants of the resident.
(3) The term ''congregate housing'' means low-rent housing that is
connected to a central dining facility where wholesome and economical
meals can be served to the residents.
(4) The term ''congregate services'' means services described in
subsection (d) of this section.
(5) The term ''congregate services program'' means a program assisted
under this section undertaken by an eligible housing project to provide
congregate services to eligible residents.
(6) The term ''eligible housing project'' means --
(A) public housing (as such term is defined in section 3(b) of the
United States Housing Act of 1937 (42 U.S.C. 1437a(b))) and lower income
housing developed or operated pursuant to a contract between the
Secretary of Housing and Urban Development and an Indian housing
authority under title II of the United States Housing Act of 1937 (42
U.S.C. 1437aa et seq.);
(B) housing assisted under section 8 of the United States Housing Act
of 1937 (42 U.S.C. 1437f) with a contract that is attached to the
structure under subsection (d)(2) of such section or with a contract
entered into in connection with the new construction or moderate
rehabilitation of the structure under section 8(b)(2) of the United
States Housing Act, /9/ as such section existed before October 1, 1983;
(C) housing assisted under section 1701q of title 12;
(D) housing assisted under section 1715l(d) or 1715z-1 of title 12,
with respect to which the owner has made a binding commitment to the
Secretary of Housing and Urban Development not to prepay the mortgage or
terminate the insurance contract under section 1715t of title 12 (unless
the binding commitments have been made to extend the low-income use
restrictions relating to such housing for the remaining useful life of
the housing);
(E) housing assisted under section 1484 or 1485 of this title, with
respect to which the owner has made a binding commitment to the
Secretary of Agriculture not to prepay or refinance the mortgage (unless
the binding commitments have been made to extend the low-income use
restrictions relating to such housing for not less than the 20-year
period under section 1472(c)(4) of this title); and
(F) housing assisted under section 1486 of this title.
(7) The term ''eligible resident'' means a person residing in
eligible housing for the elderly who qualifies under the definition of
frail elderly, person with disabilities (regardless of whether the
person is elderly), or temporarily disabled.
(8) The term ''frail elderly'' means an elderly person who is unable
to perform at least 3 activities of daily living adopted by the
Secretary for purposes of this program. Owners may establish additional
eligibility requirements (acceptable to the Secretary) based on the
standards in local supportive services programs.
(9) The term ''Indian tribe'' means any Indian tribe, band, nation,
or other organized group or community, including any Alaska Native
village or regional corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et seq.), that
is recognized as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.
(10) The term ''instrumental activity of daily living'' means a
regularly necessary home management activity and includes preparing
meals, shopping for personal items, managing money, using the telephone,
and performing light or heavy housework.
(11) The term ''local nonprofit housing sponsor'' includes public
housing agencies (as such term is defined in section 3(b)(6) of the
United States Housing Act of 1937 (42 U.S.C. 1437a(b)(6)). /10/
(12) The term ''nonprofit'', as applied to an organization, means no
part of the net earnings of the organization inures, or may lawfully
inure, to the benefit of any private shareholder or individual.
(13) The term ''elderly person'' means a person who is at least 62
years of age.
(14) The term ''person with disabilities'' has the meaning given the
term by section 8013 of this title.
(15) The term ''professional assessment committee'' means a committee
established under subsection (e)(3)(B) of this section.
(16) The term ''qualifying supportive services'' means new or
significantly expanded services that the Secretary deems essential to
enable eligible residents to live independently and avoid unnecessary
institutionalization. Such services may include but not be limited to
(A) meal service adequate to meet nutritional need; (B) housekeeping
aid; (C) personal assistance (which may include, but is not limited to,
aid given to eligible residents in grooming, dressing, and other
activities which maintain personal appearance and hygiene); (D)
transportation services; (E) health-related services; and (F) personal
emergency response systems; the owner may provide the qualifying
services directly to eligible residents or may, by contract or lease,
provide such services through other appropriate agencies or providers.
(17) The term ''Secretary concerned'' means --
(A) the Secretary of Housing and Urban Development, with respect to
eligible federally assisted housing administered by such Secretary; and
(B) the Secretary of Agriculture, with respect to eligible federally
assisted housing administered by the Administrator of the Farmers Home
Administration.
(18) The term ''State'' means the States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth
of the Northern Mariana Islands, Guam, the Virgin Islands, American
Samoa, the Trust Territory of the Pacific Islands, and any other
territory or possession of the United States.
(19) The term ''temporarily disabled'' means having an impairment
that --
(A) is expected to be of no more than 6 months duration; and
(B) impedes the ability of the individual to live independently
unless the individual receives congregate services.
(20) The term ''unit of general local government'' --
(A) means any city, town, township, county, parish, village, or other
general purpose political subdivision of a State; and
(B) includes a unit of general government acting as an applicant for
assistance under this section in cooperation with a nonprofit housing
sponsor and a nonprofit housing sponsor acting as an applicant for
assistance under this section in cooperation with a unit of general
local government, as provided under subsection (g)(1)(B) /11/
of this section.
(l) Reports to Congress
(1) In general
Each Secretary concerned shall submit to the Congress, for each
fiscal year for which assistance is provided for congregate services
programs under this section, an annual report --
(A) describing the activities being carried out with assistance under
this section and the population being served by such activities;
(B) evaluating the effectiveness of the program of providing
assistance for congregate services under this section, and a comparison
of the effectiveness of the program under this section with the HOPE for
Elderly Independence Program under section 8012 of this title; and
(C) containing any other information that the Secretary concerned
considers helpful to the Congress in evaluating the effectiveness of
this section.
(2) Submission of data to Secretary concerned
The Secretary of Housing and Urban Development and the Secretary of
Agriculture shall provide, by regulation under subsection (m) of this
section, for the submission of data by recipients of assistance under
this section to be used in the repeat /12/ required by paragraph (1).
(m) Regulations
The Secretary of Housing and Urban Development and the Secretary of
Agriculture shall, not later than the expiration of the 180-day period
beginning on November 28, 1990, jointly issue any regulations necessary
to carry out this section.
(n) Authorization of appropriations
(1) Authorization and use
There are authorized to be appropriated to carry out this section
$25,000,000 for fiscal year 1991, and $26,100,000 for fiscal year 1992,
of which not more than --
(A) the amount of such sums appropriated that, with respect to the
total amount appropriated, represents the ratio of the total number of
units of eligible federally assisted housing for elderly individuals
assisted by programs administered by the Secretary of Housing and Urban
Development to the total number of units assisted by programs
administered by such Secretary and the Secretary of Agriculture, shall
be used for assistance for congregate services programs in eligible
federally assisted housing administered by the Secretary of Housing and
Urban Development: /13/ and
(B) the amount of such sums appropriated that, with respect to the
total amount appropriated, represents the ratio of the total number of
units of eligible federally assisted housing for elderly individuals
assisted by programs administered by the Secretary of Agriculture to the
total number of units assisted by programs administered by such
Secretary and the Secretary of Housing and Urban Development, shall be
used for assistance for congregate services programs in eligible
federally assisted housing administered by the Secretary of Agriculture
(through the Administrator of the Farmers Home Administration).
(2) Availability
Any amounts appropriated under this subsection shall remain available
until expended.
(o) Reserve fund
The Secretary may reserve not more than 5 percent of the amounts made
available in each fiscal year to supplement grants awarded to owners
under this section when, in the determination of the Secretary, such
supplemental adjustments are required to maintain adequate levels of
services to eligible residents.
(Pub. L. 101-625, title VIII, 802, Nov. 28, 1990, 104 Stat. 4304.)
The Older Americans Act of 1965, referred to in subsec.
(d)(2)(B)(i), is Pub. L. 89-73, July 14, 1965, 79 Stat. 218, as
amended. Title III of the Act is classified generally to subchapter III
( 3021 et seq.) of chapter 35 of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 3001 of Title 42 and Tables.
The Congregate Housing Services Act of 1978, referred to in subsecs.
(d)(2)(B)(ii), (i)(1)(A)(i), (B)(i), and (j)(3), is title IV of Pub. L.
95-557, Oct. 31, 1978, 92 Stat. 2104, as amended, which is classified
principally to this chapter ( 8001 et seq.). For complete classification
of this Act to the Code, see Short Title note set out under section 8001
of this title and Tables.
The Fair Labor Standards Act of 1938, referred to in subsec.
(j)(1)(A), is act June 25, 1938, ch. 676, 52 Stat. 1060, as amended,
which is classified principally to chapter 8 ( 201 et seq.) of Title 29,
Labor. For complete classification of this Act to the Code, see section
201 of Title 29 and Tables.
The United States Housing Act of 1937, referred to in subsec.
(k)(6)(A), is act Sept. 1, 1937, ch. 896, as revised generally by Pub.
L. 93-383, title II, 201(a), Aug. 22, 1974, 88 Stat. 653, and
amended. Title II of the Act is classified generally to subchapter II (
1437aa et seq.) of chapter 8 of this title.
Section 8(b)(2) of the United States Housing Act, referred to in
subsec. (k)(6)(B), probably means section 8(b)(2) of the United States
Housing Act of 1937, which was classified to section 1437f(b)(2) of this
title and was repealed by Pub. L. 98-181, title II, 209(a)(2), Nov.
30, 1983, 97 Stat. 1183.
The Alaska Native Claims Settlement Act, referred to in subsec.
(k)(9), is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended,
which is classified generally to chapter 33 ( 1601 et seq.) of Title 43,
Public Lands. For complete classification of this Act to the Code, see
Short Title note set out under section 1601 of Title 43 and Tables.
Section was enacted as part of the Cranston-Gonzalez National
Affordable Housing Act, and not as part of the Congregate Housing
Services Act of 1978 which comprises this chapter.
Section is comprised of section 802 of Pub. L. 101-625. Subsec. (p)
of section 802 of Pub. L. 101-625 amended section 1437g of this title.
November 28, 1990, referred to in subsecs. (i)(1)(B)(i) and (m), was
in the original ''the date of the enactment of this Act'' and November
5, 1990, referred to in subsec. (j)(3), was in the original ''the date
of the enactment of this section'', see Effective Date note below.
This section was enacted as part of Pub. L. 101-625, which was
approved Nov. 28, 1990. However, this section was deemed enacted as of
Nov. 5, 1990, by Pub. L. 101-507, title II, Nov. 5, 1990, 104 Stat.
1358, set out as an Effective Date of 1990 Amendment note under section
1701q of Title 12, Banks and Banking.
/1/ So in original. Probably should be ''section,''.
/2/ So in original. Probably should be subsection ''(e)''.
/3/ So in original. Probably should be ''certification''.
/4/ So in original. Probably should be subsection ''(m)''.
/5/ So in original. Probably should be ''general local''.
/6/ See Codification note below.
/7/ So in original. Probably should be ''or''.
/8/ See Codification note below.
/9/ See References in Text note below.
/10/ So in original. Probably should be preceded by a closing
parenthesis.
/11/ So in original. Probably should be subsection ''(h)(1)(B)''.
/12/ So in original. Probably should be ''report''.
/13/ So in original. The colon probably should be a semicolon.
42 USC -- 8012. Hope for elderly independence
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Purpose
The purpose of this section is to establish a demonstration program
to test the effectiveness of combining housing certificates and vouchers
with supportive services to assist frail elderly persons to continue to
live independently. The demonstration program under this section shall
terminate upon the expiration of the 5-year period beginning on November
28, 1990.
(b) Housing assistance
In connection with this demonstration, the Secretary of Housing and
Urban Development may enter into contracts with public housing agencies
to provide not more than 1,500 incremental vouchers and certificates
under sections 1437f(b) and 1437f(o) of this title. A public housing
agency may not require that a frail elderly person live in a particular
structure or unit, but the agency may restrict the program under this
section to a geographic area, where necessary to ensure that the
provision of supportive services is feasible. At the end of the
demonstration period, the public housing agency shall give each frail
elderly person the option to continue to receive assistance under the
housing certificate or voucher program of the agency. In the
demonstration, the Secretary may also provide for supportive services in
connection with existing contracts for housing assistance under sections
1437f(b) and 1437f(o) of this title.
(c) Supportive services requirements and matching funding
(1) Federal, PHA and, /1/ individual contributions
The amount estimated by the public housing agency and approved by the
Secretary as necessary to provide the supportive services for the
demonstration period shall be funded as follows:
(A) The Secretary shall provide 40 percent, using amounts
appropriated under this section.
(B) The public housing agency shall ensure the provision of at least
50 percent from sources other than under this section.
(C) Notwithstanding any other provision of law, each frail elderly
person shall pay 10 percent of the costs of the supportive services that
the person receives, except that a frail elderly person may not be
required to pay an amount that exceeds 20 percent of the adjusted income
(as the term is defined in section 1437a(b)(5) of this title) of such
person and the Secretary shall provide for the waiver of the requirement
to pay costs under this subparagraph for persons whose income is
determined to be insufficient to provide for any payment.
(D) To the extent that the limitation under subparagraph (C)
regarding the percentage of income frail elderly persons may pay for
services will result in collected amounts for any public housing agency
of less than 10 percent of the cost of providing the services, 50
percent of such remaining costs shall be provided by the public housing
agency and 50 percent of such remaining costs shall be provided by the
Secretary from amounts appropriated under this section.
(2) Provision of services for entire demonstration
Each public housing agency shall ensure that supportive services
appropriate to the needs of the frail elderly persons to be served under
this demonstration are provided throughout the demonstration period.
Expenditures for supportive services need not be made in equal amounts
for each year, but may vary depending on the needs of the frail elderly
persons assisted under this section. A public housing agency may use up
to 20 percent of the Federal assistance provided for supportive services
in each year of this demonstration and any amounts from any prior year
in which the public housing agency did not use 20 percent of the
available Federal assistance.
(3) Calculation of match
In determining compliance with paragraph (1)(B), an agency may
include the value of such items as the Secretary determines to be
appropriate, which may include the salary paid to staff to provide
supportive services, if such items have a readily discernible market
value.
(d) Applications
An application under this section shall be submitted by a public
housing agency in such form and in accordance with such procedures as
the Secretary shall establish. The Secretary shall require that an
application contain at a minimum --
(1) an application for housing assistance under section 1437f of this
title, if necessary, and a description of any such assistance already
made available that will be used in the demonstration;
(2) a description of the size and characteristics of the population
of frail elderly persons and of their housing and supportive services
needs;
(3) a description of the proposed method of determining whether a
person qualifies as a frail elderly person (specifying any additional
eligibility requirements proposed by the agency), and of selecting frail
elderly persons to participate;
(4) a statement that the public housing agency will create a
professional assessment committee or will work with another entity which
will assist the public housing agency in identifying and providing only
services that each frail elderly person needs to remain living
independently;
(5) a description of the mechanisms for developing housing and
supportive services plans for each person and for monitoring the
person's progress in meeting that plan;
(6) the identity of the proposed service providers and a statement of
qualifications;
(7) a description of the supportive services the public housing
agency proposes to make available for the frail elderly persons to be
served, the estimated costs of such services, a description of the
resources that are expected to be made available to cover the portion of
the costs required by subsection (c)(1) of this section;
(8) assurances satisfactory to the Secretary that the supportive
services will be provided for the demonstration period;
(9) the plan for coordinating the provision of housing assistance and
supportive services;
(10) a description of how the public housing agency will ensure that
the service providers are providing supportive services, at a reasonable
cost, adequate to meet the needs of the persons to be served;
(11) a plan for continuing supportive services to frail elderly
persons that continue to receive housing assistance under section 1437f
of this title after the end of the demonstration period; and
(12) a statement that the application has been developed in
consultation with the area agency on aging under title III of the Older
Americans Act of 1965 (42 U.S.C. 3021 et seq.) and that the public
housing agency will periodically consult with the area agency during the
demonstration.
(e) Selection
(1) Criteria
The Secretary shall establish selection criteria for a national
competition for assistance under this section, which shall include --
(A) the ability of the public housing agency to develop and operate
the proposed housing assistance and supportive services program;
(B) the need for a program providing both housing assistance and
supportive services for frail elderly persons in the area to be served;
(C) the quality of the proposed program for providing supportive
services;
(D) the extent to which the proposed funding for the supportive
services is or will be available;
(E) the extent to which the program would meet the needs of the frail
elderly persons proposed to be served by the program; and
(F) such other factors as the Secretary specifies to be appropriate
for purposes of carrying out the demonstration program established by
this section in an effective and efficient manner.
(2) Consultation with HHS
In reviewing the applications, the Secretary shall consult with the
Secretary of Health and Human Services with respect to the supportive
services aspects.
(3) Funding limitations
No more than 10 percent of the assistance made available under this
section may be used for programs located within any one unit of general
local government.
(f) Required agreements
The Secretary may not approve any assistance for any program under
this section unless the public housing agency agrees --
(1) to operate the proposed program in accordance with the program
requirements established by the Secretary;
(2) to conduct an ongoing assessment of the housing assistance and
supportive services required by each frail elderly person participating
in the program;
(3) to ensure the adequate provision of supportive services, at a
reasonable cost, to each frail elderly person participating in the
program; and
(4) to comply with such other terms and conditions as the Secretary
may establish for purposes of carrying out the program in an effective
and efficient manner.
(g) Definitions
For purposes of this section:
(1) The term ''demonstration period'' means the period beginning on
November 28, 1990, and ending upon the termination date under subsection
(a) of this section.
(2) The term ''elderly person'' means a person who is at least 62
years of age.
(3) The term ''frail elderly person'' means an elderly person who is
unable to perform at least 3 activities of daily living adopted by the
Secretary for purposes of this program. Owners may establish additional
eligibility requirements (acceptable to the Secretary) based on the
standards in local supportive services programs.
(4) The term ''professional assessment committee'' means a group of
at least 3 persons appointed by a public housing agency which shall
include at least 1 qualified medical professional and other persons
professionally competent to appraise the functional abilities of the
frail elderly in relation to the performance of activities of daily
living.
(5) The term ''public housing agency'' has the meaning given such
term in section 1437a(b)(6) of this title. The term includes an Indian
Housing Authority, as defined in section 1437a(b)(11) of this title.
(6) The term ''Secretary'' means the Secretary of Housing and Urban
Development.
(7) The term ''supportive services'' --
(A) means assistance, that the Secretary determines --
(i) addresses the special needs of frail elderly persons; and
(ii) provides appropriate supportive services or assists such persons
in obtaining appropriate services, including personal care, case
management services, transportation, meal services, counseling,
supervision, and other services essential for achieving and maintaining
independent living; and
(B) does not include medical services, as determined by the
Secretary.
(h) Multifamily project demonstration
(1) In general
In addition to the demonstration program authorized by the preceding
provisions of this section, the Secretary shall conduct a demonstration
in one Federal region, subject to the terms and conditions of this
subsection, to determine the feasibility of using housing assistance
under section 1437f of this title to assist elderly persons who may
become frail to live independently in housing specifically designed for
occupancy by such persons in sufficient proportion to achieve economies
of scale in the provision of services and facilities.
(2) Section 8 (42 U.S.C. 1437f) allocation
From amounts provided pursuant to subsection (j) of this section and
subject to availability in appropriation Acts, the Secretary shall enter
into a contract with a public housing agency to provide housing
assistance under section 1437f(b) of this title to assist elderly
persons in at least 75 percent of the units in a single housing project
with more than 100 units.
(3) Section 8 (42 U.S.C. 1437f) terms
The assistance payment contract under section 1437f of this title
shall be attached to the structure and shall be in an initial term of 5
years. The contract shall (at the option of the public housing agency
and subject to availability of amounts approved in appropriations Acts)
be renewable for 3 additional 5-year terms. Rents for units in the
project assisted pursuant to this subsection shall be subject to the
rent limitations in effect for the area under section 1437f of this
title for projects for the elderly receiving loans under section 1701q
of title 12.
(4) Supportive services
The Secretary shall allocate, for the project assisted pursuant to
this subsection, a reasonable portion of the amounts appropriated
pursuant to the authorization for funds for supportive services in
subsection (k) of this section, based on the estimated number of project
residents who will be frail elderly individuals during the 5-year period
beginning on the date of initial occupancy of the project. Grants for
supportive services may be used to assist any occupant in the
demonstration project who is a frail elderly individual. Grants for
supportive services under this subsection shall be subject to the other
terms and conditions specified in this section.
(5) Applications
An application for assistance under this subsection may be submitted
by any unit of general local government with a population under 50,000
and shall contain such information as the Secretary deems appropriate.
(6) Selection
The Secretary shall select one application for funding under this
subsection based on the following criteria:
(A) The number of elderly persons residing in the applicant's
jurisdiction.
(B) The extent of existing housing constructed prior to 1940 in the
applicant's jurisdiction.
(C) The number of elderly persons living in adjacent projects to whom
the services and facilities provided by the project would be available.
(D) The level of State and local contributions toward the cost of
developing the project and of providing supportive services.
(E) The project's contribution to neighborhood improvement.
(i) Report
The Secretary shall submit to Congress an annual report evaluating
the effectiveness of the demonstrations under this section. The report
shall include a statement of the number of persons served, the types of
services provided, the cost of providing such services, and any other
information the Secretary considers appropriate in evaluating the
demonstration.
(j) Available section 8 (42 U.S.C. 1437f) assistance
The Secretary may provide assistance under sections 1437f(b) and
1437f(o) of this title in connection with the demonstrations under this
section, in an amount not to exceed $34,000,000 for fiscal year 1991,
and $35,500,000 for fiscal year 1992, subject to the approval of
sufficient amounts in appropriations Acts under section 1437c of this
title.
(k) Authorization of appropriations
There are authorized to be appropriated for the Secretary to carry
out the responsibilities for supportive services under the
demonstrations under this section, $10,000,000 to become available in
fiscal year 1991, and $10,400,000 to become available in fiscal year
1992, and remain available until expended.
(l) Implementation
Not later than the expiration of the 180-day period beginning on the
date that funds authorized for the demonstrations under this section
first become available for obligation, the Secretary shall by notice
establish such requirements as may be necessary to carry out the
demonstration programs authorized under this section.
(Pub. L. 101-625, title VIII, 803, Nov. 28, 1990, 104 Stat. 4317.)
The Older Americans Act of 1965, referred to in subsec. (d)(12), is
Pub. L. 89-73, July 14, 1965, 79 Stat. 218, as amended. Title III of
the Act is classified generally to subchapter III ( 3021 et seq.) of
chapter 35 of this title. For complete classification of this Act to
the Code, see Short Title note set out under section 3001 of this title
and Tables.
Section was enacted as part of the Cranston-Gonzalez National
Affordable Housing Act, and not as part of the Congregate Housing
Services Act of 1978 which comprises this chapter.
/1/ So in original. The comma probably should precede ''and''.
42 USC -- 8013. Supportive housing for persons with disabilities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Purpose
The purpose of this section is to enable persons with disabilities to
live with dignity and independence within their communities by expanding
the supply of supportive housing that --
(1) is designed to accommodate the special needs of such persons;
and
(2) provides supportive services that address the individual health,
mental health, and other needs of such persons.
(b) General authority
The Secretary is authorized to provide assistance to private,
nonprofit organizations to expand the supply of supportive housing for
persons with disabilities. Such assistance shall be provided as --
(1) capital advances in accordance with subsection (d)(1) of this
section, and
(2) contracts for project rental assistance in accordance with
subsection (d)(2) of this section.
Such assistance may be used to finance the acquisition, acquisition
and moderate rehabilitation, construction, reconstruction, or moderate
or substantial rehabilitation of housing, including the acquisition from
the Resolution Trust Corporation, to be used as supportive housing for
persons with disabilities and may include real property acquisition,
site improvement, conversion, demolition, relocation, and other expenses
that the Secretary determines are necessary to expand the supply of
supportive housing for persons with disabilities.
(c) General requirements
The Secretary shall take such actions as may be necessary to ensure
that --
(1) assistance made available under this section will be used to meet
the special needs of persons with disabilities by providing a variety of
housing options, ranging from group homes and independent living
facilities to dwelling units in multifamily housing developments,
condominium housing, and cooperative housing; and
(2) supportive housing for persons with disabilities assisted under
this section shall --
(A) provide persons with disabilities occupying such housing with
supportive services that address their individual needs;
(B) provide such persons with opportunities for optimal independent
living and participation in normal daily activities, /1/
and
(C) facilitate access by such persons to the community at large and
to suitable employment opportunities within such community.
(d) Forms of assistance
(1) Capital advances
A capital advance provided under this section shall bear no interest
and its repayment shall not be required so long as the housing remains
available for very-low-income persons with disabilities in accordance
with this section. Such advance shall be in an amount calculated in
accordance with the development cost limitation established in
subsection (h) of this section.
(2) Project rental assistance
Contracts for project rental assistance shall obligate the Secretary
to make monthly payments to cover any part of the costs attributed to
units occupied (or, as approved by the Secretary, held for occupancy) by
very low-income persons with disabilities that is not met from project
income. The annual contract amount for any project shall not exceed the
sum of the initial annual project rentals for all units and any initial
utility allowances for such units, as approved by the Secretary. Any
contract amounts not used by a project in any year shall remain
available to the project until the expiration of the contract. The
Secretary may adjust the annual contract amount if the sum of the
project income and the amount of assistance payments available under
this paragraph are inadequate to provide for reasonable project costs.
In the case of an intermediate care facility which is the residence of
persons assisted under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.), project income under this paragraph shall include the
same amount as if such person were being assisted under title XVI of the
Social Security Act (42 U.S.C. 1381 et seq.).
(3) Rent contribution
A very low-income person shall pay as rent for a dwelling unit
assisted under this section the higher of the following amounts, rounded
to the nearest dollar: (A) 30 percent of the person's adjusted monthly
income, (B) 10 percent of the person's monthly income, or (C) if the
person is receiving payments for welfare assistance from a public agency
and a part of such payments, adjusted in accordance with the person's
actual housing costs, is specifically designated by such agency to meet
the person's housing costs, the portion of such payments which is so
designated; except that the gross income of a person occupying an
intermediate care facility assisted under title XIX of the Social
Security Act (42 U.S.C. 1396 et seq.) shall be the same amount as if the
person were being assisted under title XVI of the Social Security Act
(42 U.S.C. 1381 et seq.).
(e) Term of commitment
(1) Use limitations
All units in housing assisted under this section shall be made
available for occupancy by very low-income persons with disabilities for
not less than 40 years.
(2) Contract terms
The initial term of a contract entered into under subsection (d)(2)
of this section shall be 240 months. The Secretary shall, to the extent
approved in appropriation Acts, extend any expiring contract for a term
of not less than 60 months. In order to facilitate the orderly
extension of expiring contracts, the Secretary is authorized to make
commitments to extend expiring contracts during the year prior to the
date of expiration.
(f) Applications
Funds made available under this section shall be allocated by the
Secretary among approvable applications submitted by private nonprofit
organizations. Applications for assistance under this section shall be
submitted in such form and in accordance with such procedures as the
Secretary shall establish. Such applications shall contain --
(1) a description of the proposed housing;
(2) a description of the assistance the applicant seeks under this
section;
(3) a supportive service plan that contains --
(A) a description of the needs of persons with disabilities that the
housing is expected to serve;
(B) assurances that persons with disabilities occupying such housing
will receive supportive services based on their individual needs;
(C) evidence of the applicant's (or a designated service provider's)
experience in providing such supportive services;
(D) a description of the manner in which such services will be
provided to such persons, including evidence of such residential
supervision as the Secretary determines is necessary to facilitate the
adequate provision of such services; and
(E) identification of the extent of State and local funds available
to assist in the provision of such services;
(4) a certification from the appropriate State or local agency (as
determined by the Secretary) that the provision of the services
identified in paragraph (3) are well designed to serve the special needs
of persons with disabilities;
(5) reasonable assurances that the applicant will own or have control
of an acceptable site for the proposed housing not later than 6 months
after notification of an award for assistance;
(6) a certification from the public official responsible for
submitting a housing strategy for the jurisdiction to be served in
accordance with section 12705 of this title that the proposed housing is
consistent with the approved housing strategy; and
(7) such other information or certifications that the Secretary
determines to be necessary or appropriate to achieve the purposes of
this section.
(g) Selection criteria
The Secretary shall establish selection criteria for assistance under
this section, which shall include --
(1) the ability of the applicant to develop and operate the proposed
housing;
(2) the need for housing for persons with disabilities in the area to
be served;
(3) the extent to which the proposed design of the housing will meet
the special needs of persons with disabilities;
(4) the extent to which the applicant has demonstrated that the
necessary supportive services will be provided on a consistent,
long-term basis;
(5) the extent to which the proposed design of the housing will
accommodate the provision of such services;
(6) the extent to which the applicant has control of the site of the
proposed housing; and
(7) such other factors as the Secretary determines to be appropriate
to ensure that funds made available under this section are used
effectively.
(h) Development cost limitations
(1) In general
The Secretary shall periodically establish development cost
limitations by market area for various types and sizes of supportive
housing for persons with disabilities by publishing a notice of the cost
limitations in the Federal Register. The cost limitations shall reflect
--
(A) the cost of acquisition, construction, reconstruction, or
rehabilitation of supportive housing for persons with disabilities that
(i) meets applicable State and local housing and building codes; and
(ii) conforms with the design characteristics of the neighborhood in
which it is to be located;
(B) the cost of movables necessary to the basic operation of the
housing, as determined by the Secretary;
(C) the cost of special design features necessary to make the housing
accessible to persons with disabilities;
(D) the cost of special design features necessary to make individual
dwelling units meet the special needs of persons with disabilities;
(E) the cost of congregate space necessary to accommodate the
provision of supportive services to persons with disabilities;
(F) if the housing is newly constructed, the cost of meeting the
energy efficiency standards promulgated by the Secretary in accordance
with section 12709 of this title; and
(G) the cost of land, including necessary site improvement.
In establishing development cost limitations for a given market area,
the Secretary shall use data that reflect currently prevailing costs of
acquisition, construction, reconstruction, or rehabilitation, and land
acquisition in the area.
(2) RTC properties
In the case of existing housing and related facilities from the
Resolution Trust Corporation under section 1441a(c) of title 12, the
cost limitations shall include --
(A) the cost of acquiring such housing,
(B) the cost of rehabilitation, alteration, conversion, or
improvement, including the moderate rehabilitation thereof, and
(C) the cost of the land on which the housing and related facilities
are located.
(3) Annual adjustments
The Secretary shall adjust the cost limitation not less than once
annually to reflect changes in the general level of acquisition,
construction, reconstruction, or rehabilitation costs.
(4) Incentives for savings
(A) Special project account
The Secretary shall use the development cost limitations established
under paragraph (1) to calculate the amount of financing to be made
available to individual owners. Owners which incur actual development
costs that are less than the amount of financing shall be entitled to
retain 50 percent of the savings in a special project account. Such
percentage shall be increased to 75 percent for owners which add energy
efficiency features which (i) exceed the energy efficiency standards
promulgated by the Secretary in accordance with section 12709 of this
title; (ii) substantially reduce the life-cycle cost of the housing;
(iii) reduce gross rent requirements; and (iv) enhance tenant comfort
and convenience.
(B) Uses
The special project account established under subparagraph (A) may be
used (i) to supplement services provided to residents of the housing or
funds set-aside for replacement reserves, or (ii) for such other
purposes as determined by the Secretary.
(5) Funds from other sources
An owner shall be permitted voluntarily to provide funds from
non-Federal sources for amenities and other features of appropriate
design and construction suitable for supportive housing for persons with
disabilities if the cost of such amenities is (A) not financed with the
advance, and (B) is not taken into account in determining the amount of
Federal assistance or of the rent contribution of tenants.
(i) Tenant selection
(1) An owner shall adopt written tenant selection procedures that are
satisfactory to the Secretary as (A) consistent with the purpose of
improving housing opportunities for very low-income persons with
disabilities; and (B) reasonably related to program eligibility and an
applicant's ability to perform the obligations of the lease. Owners
shall promptly notify in writing any rejected applicant of the grounds
for any rejection.
(2) Notwithstanding any other provision of law, an owner may, with
the approval of the Secretary, limit occupancy within housing developed
under this section to persons with disabilities who have similar
disabilities and require a similar set of supportive services in a
supportive housing environment.
(j) Miscellaneous provisions
(1) Technical assistance
The Secretary shall make available appropriate technical assistance
to assure that applicants having limited resources, particularly
minority applicants, are able to participate more fully in the program
carried out under this section.
(2) Civil rights compliance
Each owner shall certify, to the satisfaction of the Secretary, that
assistance made available under this section will be conducted and
administered in conformity with title VI of the Civil Rights Act of 1964
(42 U.S.C. 2000d et seq.), the Fair Housing Act (42 U.S.C. 3601 et
seq.) and other Federal, State, and local laws prohibiting
discrimination and promoting equal opportunity; and /2/
(3) Site control
An applicant may obtain ownership or control of a suitable site
different from the site specified in the initial application. If an
applicant fails to obtain ownership or control of the site within 1 year
after notification of an award for assistance, the assistance shall be
recaptured and reallocated.
(4) Owner deposit
The Secretary may require an owner to deposit an amount not to exceed
$10,000 in a special escrow account to assure the owner's commitment to
the housing.
(5) Notice of appeal
The Secretary shall notify an owner not less than 30 days prior to
canceling any reservation of assistance provided under this section.
During the 30-day period following the receipt of a notice under the
preceding sentence, an owner may appeal the proposed cancellation. Such
appeal, including review by the Secretary, shall be completed not later
than 45 days after the appeal is filed.
(6) Labor standards
The Secretary shall take such action as may be necessary to insure
that all laborers and mechanics employed by contractors and
subcontractors in the construction of housing assisted under this
section and designed for dwelling use by 12 or more persons with
disabilities shall be paid wages at rates not less than those prevailing
in the locality involved for the corresponding classes of laborers and
mechanics employed on construction of a similar character, as determined
by the Secretary of Labor in accordance with the Act of March 3, 1931
(the Davis-Bacon Act (40 U.S.C. 276a et seq.)); but the Secretary may
waive the application of this paragraph in cases or classes of cases
where laborers or mechanics, not otherwise employed at any time in the
construction of such housing, voluntarily donate their services without
full compensation for the purposes of lowering the costs of construction
and the Secretary determines that any amounts saved thereby are fully
credited to the corporation, cooperative, or public body or agency
undertaking the construction.
(k) Definitions
As used in this section --
(1) The term ''group home'' means a single family residential
structure designed or adapted for occupancy by not more than 8 persons
with disabilities. The Secretary may waive the project size limitation
contained in the previous sentence if the applicant demonstrates that
local market conditions dictate the development of a larger project.
Not more than 1 home may be located on any one site and no such home may
be located on a site contiguous to another site containing such a home.
(2) The term ''person with disabilities'' means a household composed
of one or more persons at least one of whom is an adult who has a
disability. A person shall be considered to have a disability if such
person is determined, pursuant to regulations issued by the Secretary to
have a physical, mental, or emotional impairment which (A) is expected
to be of long-continued and indefinite duration, (B) substantially
impedes his or her ability to live independently, and (C) is of such a
nature that such ability could be improved by more suitable housing
conditions. A person shall also be considered to have a disability if
such person has a developmental disability as defined in section 6001(7)
/3/ of this title. The Secretary shall prescribe such regulations as
may be necessary to prevent abuses in determining, under the definitions
contained in this paragraph, the eligibility of families and persons for
admission to and occupancy of housing assisted under this section.
Notwithstanding the preceding provisions of this paragraph, the term
''person with disabilities'' includes two or more persons with
disabilities living together, one or more such persons living with
another person who is determined (under regulations prescribed by the
Secretary) to be important to their care or well-being, and the
surviving member or members of any household described in the first
sentence of this paragraph who were living, in a unit assisted under
this section, with the deceased member of the household at the time of
his or her death.
(3) The term ''supportive housing for persons with disabilities''
means housing that --
(A) is designed to meet the special needs of persons with
disabilities, and
(B) provides supportive services that address the individual health,
mental health or other special needs of such persons.
(4) The term ''independent living facility'' means a project designed
for occupancy by not more than 24 persons with disabilities (or such
higher number of persons as permitted under criteria that the Secretary
shall prescribe) in separate dwelling units where each dwelling unit
includes a kitchen and a bath.
(5) The term ''owner'' means a private nonprofit organization that
receives assistance under this section to develop and operate a project
for supportive housing for persons with disabilities.
(6) The term ''private nonprofit organization'' means any
incorporated private institution or foundation --
(A) no part of the net earnings of which inures to the benefit of any
member, founder, contributor, or individual;
(B) which has a governing board (i) the membership of which is
selected in a manner to assure that there is significant representation
of the views of persons with disabilities, and (ii) which is responsible
for the operation of the housing assisted under this section; and
(C) which is approved by the Secretary as to financial
responsibility.
(7) The term ''State'' includes the several States, the District of
Columbia, the Commonwealth of Puerto Rico, and the possessions of the
United States.
(8) The term ''Secretary'' means the Secretary of Housing and Urban
Development.
(9) The term ''very low-income'' has the same meaning as given the
term ''very low-income families'' under section 1437a(b)(2) of this
title.
(l) Authorizations
(1) Capital advances
There are authorized to be appropriated for the purpose of funding
capital advances in accordance with subsection (d)(1) of this section,
$271,000,000 for fiscal year 1992. Amounts so appropriated, the
repayments from such advances, and the proceeds from notes or
obligations issued under this section prior to November 28, 1990, /4/
shall constitute a revolving fund to be used by the Secretary in
carrying out this section.
(2) Project rental assistance
For the purpose of funding contracts for project rental assistance in
accordance with subsection (d)(2) of this section, the Secretary may, to
the extent approved in an appropriations Act, reserve authority to enter
into obligations aggregating $246,000,000 for fiscal year 1992.
(m) Effective date and applicability
(1) In general
The amendments made by this section shall take effect on October 1,
1991, with respect to projects approved on or after such date. The
Secretary shall issue regulations for such purpose after notice and
public comment.
(2) Earlier applicability
The Secretary shall, upon the request of an owner, apply the
provisions of this section to any housing for which a loan reservation
was made under section 1701q of title 12 before November 28, 1990, /4/
but for which no loan has been executed and recorded. In the absence of
such a request, any housing identified under the preceding sentence
shall continue to be subject to the provisions of section 1701q of title
12 as they were in effect when such assistance was made or reserved.
(3) Coordination
When responding to an owner's request under paragraph (1), the
Secretary shall, notwithstanding any other provision of law, apply such
portion of amounts obligated at the time of loan reservation, including
amounts reserved with respect to such housing under section 1437f of
this title, as are required for the owner's housing under the provisions
of this section and shall make any remaining portion available for other
housing under this section.
(Pub. L. 101-625, title VIII, 811, Nov. 28, 1990, 104 Stat. 4324;
Pub. L. 102-27, title II, Apr. 10, 1991, 105 Stat. 150.)
The Social Security Act, referred to in subsec. (d)(2), (3), is act
Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles XVI and XIX
of the Act are classified generally to subchapters XVI ( 1381 et seq.)
and XIX ( 1396 et seq.), respectively, of chapter 7 of this title. For
complete classification of this Act to the Code, see section 1305 of
this title and Tables.
The Civil Rights Act of 1964, referred to in subsec. (j)(2), is Pub.
L. 88-352, July 2, 1964, 78 Stat. 241, as amended. Title VI of the
Act is classified generally to subchapter V ( 2000d et seq.) of chapter
21 of this title. For complete classification of this Act to the Code,
see Short Title note set out under section 2000a of this title and
Tables.
The Fair Housing Act, referred to in subsec. (j)(2), is title VIII
of Pub. L. 90-284, Apr. 11, 1968, 82 Stat. 81, as amended, which is
classified principally to subchapter I of chapter 45 ( 3601 et seq.) of
this title. For complete classification of this Act to the Code, see
Short Title note set out under section 3601 of this title and Tables.
Act of March 3, 1931 (the Davis-Bacon Act), referred to in subsec.
(j)(6), is act Mar. 3, 1931, ch. 411, 46 Stat. 1494, as amended,
which is classified generally to sections 276a to 276a-5 of Title 40,
Public Buildings, Property, and Works. For complete classification of
this Act to the Code, see Short Title note set out under section 276a of
Title 40 and Tables.
Section was enacted as part of the Cranston-Gonzalez National
Affordable Housing Act, and not as part of the Congregate Housing
Services Act of 1978 which comprises this chapter.
November 28, 1990, referred to in subsecs. (l)(1) and (m)(2), was in
the original ''the enactment of this Act'' and ''the date of enactment
of this Act'', respectively, see Enactment of Section note below.
1991 -- Subsec. (k)(4). Pub. L. 102-27 substituted ''24 persons with
disabilities (or such higher number of persons as permitted under
criteria that the Secretary shall prescribe)'' for ''20 persons with
disabilities''.
This section was enacted as part of Pub. L. 101-625, which was
approved Nov. 28, 1990. However, this section was deemed enacted as of
Nov. 5, 1990, by Pub. L. 101-507, title II, Nov. 5, 1990, 104 Stat.
1358, set out as an Effective Date of 1990 Amendment note under section
1701q of Title 12, Banks and Banking.
/1/ So in original. The comma probably should be a semicolon.
/2/ So in original. The word ''opportunity'' probably should be
followed by a period.
/3/ So in original. Probably should be section ''6001(5)''.
/4/ See Codification note below.
42 USC -- CHAPTER 90 -- NEIGHBORHOOD AND CITY REINVESTMENT, SELF-HELP
AND REVITALIZATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8101. Congressional findings and declaration of purpose.
8102. Neighborhood Reinvestment Corporation.
(a) Establishment.
(b) Implementation and expansion of demonstration activities.
(c) Principal office.
(d) Exemption from taxation.
8103. Board of Directors.
(a) Membership.
(b) Election of chairman.
(c) Terms of office.
(d) Compensation and expenses.
(e) Bylaws, policies and administrative provisions.
(f) Director absences; designated representatives.
(g) Quorum.
(h) Application of other laws.
(i) Meetings of board.
8104. Officers and employees.
(a) Employment, compensation and benefits.
(b) Appointment of executive director.
(c) Appointment and removal of employees by executive director.
(d) Prohibition of political tests and qualifications in selection,
etc., of personnel.
(e) Employee status; applicability of administrative and cost
standards of Office of Management and Budget.
8105. Powers and duties of corporation.
(a) Continuance of work of Urban Reinvestment Task Force regarding
neighborhood housing services programs and preservation projects.
(b) General administrative powers.
(c) Contracting powers.
(d) Non-profit nature of corporation.
8106. Reports and audits.
(a) Annual report to President and Congress.
(b) Annual audit of accounts.
(c) Additional audits by General Accounting Office.
(d) Audit of grantees and contractors of corporation.
(e) Annual financial audit.
8107. Appropriations.
(a) Authorization.
(b) Availability of funds until expended.
(c) Accounting and reporting of non-Federal funds.
(d) Preparation of business-type budget.
8121 to 8124. Repealed.
8141. Congressional findings.
8142. Statement of purpose.
8143. Definitions.
8144. Grants to or contracts with organizations.
(a) Authorization; purposes.
(b) Establishment of criteria and procedures for evaluation and
selection of projects; scope of criteria.
(c) Application requirements.
(d) Consultation requirements.
(e) Regulations respecting matching requirements; waiver, etc.
(f) Certification of application.
(g) Available funds not to supplant other public or private funds.
(h) Availability of funds for administrative expenses.
8145. Coordination and development of program with other Federal and
non-Federal programs.
8146. Authorization of appropriations.
42 USC -- SUBCHAPTER I -- NEIGHBORHOOD REINVESTMENT CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8101. Congressional findings and declaration of purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Congress finds that --
(1) the neighborhood housing services demonstration of the Urban
Reinvestment Task Force has proven its worth as a successful program to
revitalize older urban neighborhoods by mobilizing public, private, and
community resources at the neighborhood level; and
(2) the demand for neighborhood housing services programs in cities
throughout the United States warrants the creation of a public
corporation to institutionalize and expand the neighborhood housing
services program and other programs of the present Urban Reinvestment
Task Force.
(b) The purpose of this subchapter is to establish a public
corporation which will continue the joint efforts of the Federal
financial supervisory agencies and the Department of Housing and Urban
Development to promote reinvestment in older neighborhoods by local
financial institutions working cooperatively with community people and
local government, and which will continue the nonbureaucratic approach
of the Urban Reinvestment Task Force, relying largely on local
initiative for the specific design of local programs.
(Pub. L. 95-557, title VI, 602, Oct. 31, 1978, 92 Stat. 2115.)
Section 601 of title VI of Pub. L. 95-557 provided that: ''This
title (enacting this subchapter) may be cited as the 'Neighborhood
Reinvestment Corporation Act'.''
Section 701 of title VII of Pub. L. 95-557, which provided that such
title, which was classified to subchapter II of this chapter, was to be
cited as the ''Neighborhood Self-Help Development Act of 1978'', was
repealed by Pub. L. 97-35, title III, 313(a), Aug. 13, 1981, 95 Stat.
398.
Section 801 of title VIII of Pub. L. 95-557 provided that: ''This
title (enacting subchapter III of this chapter) may be cited as the
'Livable Cities Act of 1978'.''
42 USC -- 8102. Neighborhood Reinvestment Corporation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment
There is established a Neighborhood Reinvestment Corporation
(hereinafter referred to as the ''corporation'') which shall be a body
corporate and shall possess the powers, and shall be subject to the
direction and limitations specified herein.
(b) Implementation and expansion of demonstration activities
The corporation shall implement and expand the demonstration
activities carried out by the Urban Reinvestment Task Force.
(c) Principal office
The corporation shall maintain its principal office in the District
of Columbia or at such other place the corporation may from time to time
prescribe.
(d) Exemption from taxation
The corporation, including its franchise, activities, assets, and
income, shall be exempt from all taxation now or hereafter imposed by
the United States, by any territory, dependency, or possession thereof,
or by any State, county, municipality, or local taxing authority, except
that any real property of the corporation shall be subject to State,
territorial, county, municipal, or local taxation to the same extent
according to its value as other real property is taxed.
(Pub. L. 95-557, title VI, 603, Oct. 31, 1978, 92 Stat. 2115; Pub.
L. 96-399, title III, 315(1), Oct. 8, 1980, 94 Stat. 1645.)
1980 -- Subsec. (a). Pub. L. 96-399 struck out ''National'' before
''Neighborhood''.
42 USC -- 8103. Board of Directors
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Membership
The corporation shall be under the direction of a board of directors
made up of the following members:
(1) the Chairman of the Federal Home Loan Bank Board or a member of
the Federal Home Loan Bank Board to be designated by the Chairman;
(2) the Secretary of Housing and Urban Development;
(3) the Chairman of the Board of Governors of the Federal Reserve
System, or a member of the Board of Governors of the Federal Reserve
System to be designated by the Chairman;
(4) the Chairman of the Federal Deposit Insurance Corporation or the
appointive member of the Board of Directors of the Federal Deposit
Insurance Corporation if so designated by the Chairman;
(5) the Comptroller of the Currency; and
(6) the Chairman of the National Credit Union Administration or a
member of the Board of the National Credit Union Administration to be
designated by the Chairman.
(b) Election of chairman
The Board shall elect from among its members a chairman who shall
serve for a term of two years, except that the Chairman of the Federal
Home Loan Bank Board shall serve as Chairman of the Board of Directors
for the first such two-year term.
(c) Terms of office
Each director of the corporation shall serve ex officio during the
period he holds the office to which he is appointed by the President.
(d) Compensation and expenses
The directors of the corporation, as full-time officers of the United
States, shall serve without additional compensation but shall be
reimbursed for travel, subsistence, and other necessary expenses
incurred in the performance of their duties as directors of the
corporation.
(e) Bylaws, policies and administrative provisions
The directors of the corporation shall adopt such bylaws, policies,
and administrative provisions as are necessary to the functioning of the
corporation and consistent with the provisions of this subchapter.
(f) Director absences; designated representatives
A director who is necessarily absent from a meeting of the board, or
of a committee of the board, may participate in such meeting through a
duly designated representative who is serving, pursuant to appointment
by the President of the United States, by and with the advice and
consent of the Senate, in the same department, agency, corporation, or
instrumentality as the absent director, or in the case of the
Comptroller of the Currency, through a duly designated Deputy
Comptroller.
(g) Quorum
The presence of a majority of the board members, or their
representatives as provided in subsection (f) of this section, shall
constitute a quorum.
(h) Application of other laws
The corporation shall be subject to the provisions of section 552 of
title 5.
(i) Meetings of board
All meetings of the board of directors will be conducted in
accordance with the provisions of section 552b of title 5.
(Pub. L. 95-557, title VI, 604, Oct. 31, 1978, 92 Stat. 2115; Pub.
L. 97-320, title VII, 710(a), Oct. 15, 1982, 96 Stat. 1544; Pub. L.
100-242, title V, 520(a), Feb. 5, 1988, 101 Stat. 1938; Pub. L.
100-628, title X, 1085, Nov. 7, 1988, 102 Stat. 3278.)
1988 -- Subsec. (a)(1). Pub. L. 100-242, 520(a)(1), inserted ''or a
member of the Federal Home Loan Bank Board to be designated by the
Chairman'' before semicolon.
Subsec. (a)(3). Pub. L. 100-242, 520(a)(2), added par. (3) and
struck out former par. (3) which read as follows: ''a member of the
Board of Governors of the Federal Reserve System, to be designated by
the Chairman of the Board of Governors of the Federal Reserve System;''.
Subsec. (a)(4). Pub. L. 100-242, 520(a)(3), inserted ''or the
appointive member of the Board of Directors of the Federal Deposit
Insurance Corporation if so designated by the Chairman'' before
semicolon.
Subsec. (a)(6). Pub. L. 100-628 struck out second of the two periods
at end.
Pub. L. 100-242, 520(a)(4), substituted ''Chairman'' for
''Administrator'' and inserted ''or a member of the Board of the
National Credit Union Administration to be designated by the Chairman.''
before period.
1982 -- Subsecs. (f) to (i). Pub. L. 97-320 added subsec. (f),
redesignated former subsecs. (f) to (h) as (g) to (i), respectively,
and in subsec. (g) inserted '', or their representatives as provided in
subsection (f) of this section,''.
Federal Home Loan Bank Board abolished and functions transferred, see
sections 401 to 406 of Pub. L. 101-73, set out as a note under section
1437 of Title 12, Banks and Banking.
42 USC -- 8104. Officers and employees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Employment, compensation and benefits
The board shall have power to select, employ, and fix the
compensation and benefits of such officers, employees, attorneys, and
agents as shall be necessary for the performance of its duties under
this subchapter, without regard to the provisions of title 5 governing
appointments in the competitive service, classification, and General
Schedule pay rates, except that no officer, employee, attorney, or agent
of the corporation may be paid compensation at a rate in excess of the
highest rate provided for GS-18 of the General Schedule under section
5332 of title 5.
(b) Appointment of executive director
The directors of the corporation shall appoint an executive director
who shall serve as chief executive officer of the corporation.
(c) Appointment and removal of employees by executive director
The executive director of the corporation, subject to approval by the
board, may appoint and remove such employees of the corporation as he
determines necessary to carry out the purposes of the corporation.
(d) Prohibition of political tests and qualifications in selection,
etc., of personnel
No political test or political qualification shall be used in
selecting, appointing, promoting, or taking any other personnel action
with respect to any officer, agent, or employee of the corporation or of
any recipient, or in selecting or monitoring any grantee, contractor, or
person or entity receiving financial assistance under this subchapter.
(e) Employee status; applicability of administrative and cost
standards of Office of Management and Budget
Officers and employees of the corporation shall not be considered
officers or employees of the United States, and the corporation shall
not be considered a department, agency, or instrumentality of the
Federal Government. The corporation shall be subject to administrative
and cost standards issued by the Office of Management and Budget similar
to standards applicable to non-profit grantees and educational
institutions.
(Pub. L. 95-557, title VI, 605, Oct. 31, 1978, 92 Stat. 2116.)
The provisions of title 5 governing appointments in the competitive
service, referred to in subsec. (a), are classified to section 3301 et
seq. of Title 5, Government Organization and Employees.
References in laws to the rates of pay for GS-16, 17, or 18, or to
maximum rates of pay under the General Schedule, to be considered
references to rates payable under specified sections of Title 5,
Government Organization and Employees, see section 529 (title I,
101(c)(1)) of Pub. L. 101-509, set out in a note under section 5376 of
Title 5.
42 USC -- 8105. Powers and duties of corporation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Continuance of work of Urban Reinvestment Task Force regarding
neighborhood housing services programs and preservation projects
(1) The corporation shall continue the work of the Urban Reinvestment
Task Force in establishing neighborhood housing services programs in
neighborhoods throughout the United States, monitoring their progress,
and providing them with grants and technical assistance. For the
purpose of this paragraph, a neighborhood housing services program may
involve a partnership of neighborhood residents and representatives of
local governmental and financial institutions, organized as a
State-chartered non-profit corporation, working to bring about
reinvestment in one or more neighborhoods through a program of
systematic housing inspections, increased public investment, increased
private lending, increased resident investment, and a revolving loan
fund to make loans available at flexible rates and terms to homeowners
not meeting private lending criteria.
(2) The corporation shall continue the work of the Urban Reinvestment
Task Force in identifying, monitoring, evaluating, and providing grants
and technical assistance to selected neighborhood preservation projects
which show promise as mechanisms for reversing neighborhood decline and
improving the quality of neighborhood life.
(3) The corporation shall experimentally replicate neighborhood
preservation projects which have demonstrated success, and after
creating reliable developmental processes, bring the new programs to
neighborhoods throughout the United States which in the judgment of the
corporation can benefit therefrom, by providing assistance in organizing
programs, providing grants in partial support of program costs, and
providing technical assistance to ongoing programs.
(4) The corporation shall continue the work of the Urban Reinvestment
Task Force in supporting Neighborhood Housing Services of America, a
nonprofit corporation established to provide services to local
neighborhood housing services programs, with support which may include
technical assistance and grants to expand its national loan purchase
pool and may contract with it for services which it can perform more
efficiently or effectively than the corporation.
(5) The corporation shall, in making and providing the foregoing
grants and technical and other assistance, determine the reporting and
management restrictions or requirements with which the recipients of
such grants or other assistance must comply. In making such
determinations, the corporation shall assure that recipients of grants
and other assistance make available to the corporation such information
as may be necessary to determine compliance with applicable Federal
laws.
(b) General administrative powers
To carry out the foregoing purposes and engage in the foregoing
activities, the corporation is authorized --
(1) to adopt, alter, and use a corporate seal;
(2) to have succession until dissolved by Act of Congress;
(3) to make and perform contracts, agreements, and commitments;
(4) to sue and be sued, complain and defend, in any State, Federal,
or other court;
(5) to determine its necessary expenditures and the manner in which
the same shall be incurred, allowed, and paid, and appoint, employ, and
fix and provide for the compensation of consultants, without regard to
any other law, except as provided in section 8107(d) of this title;
(6) to settle, adjust, and compromise, and with or without
compensation or benefit to the corporation to release or waive in whole
or in part, in advance or otherwise, any claim, demand, or right of, by,
or against the corporation;
(7) to invest such funds of the corporation in such investments as
the board of directors may prescribe;
(8) to acquire, take, hold, and own, and to deal with and dispose of
any property; and
(9) to exercise all other powers that are necessary and proper to
carry out the purposes of this subchapter.
(c) Contracting powers
(1) The corporation may contract with the Office of Neighborhood
Reinvestment of the Federal home loan banks for all staff, services,
facilities, and equipment now or in the future furnished by the Office
of Neighborhood Reinvestment to the Urban Reinvestment Task Force,
including receiving the services of the Director of the Office of
Neighborhood Reinvestment as the corporation's executive director.
(2) The corporation shall have the power to award contracts and
grants to --
(A) neighborhood housing services corporations and other nonprofit
corporations engaged in neighborhood preservation activities; and
(B) local governmental bodies.
(3) The Secretary of Housing and Urban Development, the Federal Home
Loan Bank Board and the Federal home loan banks, the Board of Governors
of the Federal Reserve System and the Federal Reserve banks, the Federal
Deposit Insurance Corporation, and the Comptroller of the Currency, the
National Credit Union Administration or any other department, agency, or
other instrumentality of the Federal Government are authorized to
provide funds, services and facilities, with or without reimbursement,
necessary to achieve the objectives and to carry out the purposes of
this subchapter.
(d) Non-profit nature of corporation
(1) The corporation shall have no power to issue any shares of
stocks, or to declare or pay any dividends.
(2) No part of the income or assets of the corporation shall inure to
the benefit of any director, officer, or employee, except as reasonable
compensation for services or reimbursement for expenses.
(3) The corporation may not contribute to or otherwise support any
political party or candidate for elective public office.
(Pub. L. 95-557, title VI, 606, Oct. 31, 1978, 92 Stat. 2117; Pub.
L. 96-399, title III, 315(2), Oct. 8, 1980, 94 Stat. 1645; Pub. L.
97-320, title VII, 710(b), Oct. 15, 1982, 96 Stat. 1544.)
1982 -- Subsec. (c)(3). Pub. L. 97-320 inserted ''funds,'' after
''provide''.
1980 -- Subsec. (a)(1). Pub. L. 96-399 substituted ''monitoring''
for ''supervising''.
Federal Home Loan Bank Board abolished and functions transferred, see
sections 401 to 406 of Pub. L. 101-73, set out as a note under section
1437 of Title 12, Banks and Banking.
42 USC -- 8106. Reports and audits
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Annual report to President and Congress
The corporation shall publish an annual report which shall be
transmitted by the corporation to the President and the Congress.
(b) Annual audit of accounts
The accounts of the corporation shall be audited annually. Such
audits shall be conducted in accordance with generally accepted auditing
standards by independent certified public accountants who are certified
by a regulatory authority of the jurisdiction in which the audit is
undertaken.
(c) Additional audits by General Accounting Office
In addition to the annual audit, the financial transactions of the
corporation for any fiscal year during which Federal funds are available
to finance any portion of its operations may be audited by the General
Accounting Office in accordance with such rules and regulations as may
be prescribed by the Comptroller General of the United States. The
financial transactions of the corporation shall be audited by the
General Accounting Office at least once during each three years.
(d) Audit of grantees and contractors of corporation
For any fiscal year during which Federal funds are available to
finance any portion of the corporation's grants or contracts, the
General Accounting Office, in accordance with such rules and regulations
as may be prescribed by the Comptroller General of the United States,
may audit the grantees or contractors of the corporation.
(e) Annual financial audit
The corporation shall conduct or require each grantee or contractor
to provide for an annual financial audit. The report of each such audit
shall be maintained for a period of at least five years at the principal
office of the corporation.
(Pub. L. 95-557, title VI, 607, Oct. 31, 1978, 92 Stat. 2118.)
Pub. L. 96-399, title III, 316, Oct. 8, 1980, 94 Stat. 1645,
provided that:
''(a) The Congress --
''(1) recognizes the significant potential of mutual housing
associations for helping make multifamily housing in the United States
more affordable; and
''(2) commends and encourages the efforts being made in connection
with the national demonstration program of mutual housing associations
being undertaken by the Neighborhood Reinvestment Corporation and the
National Consumer Cooperative Bank with the cooperation of the
Department of Housing and Urban Development.
''(b) The Neighborhood Reinvestment Corporation, in conjunction with
the National Consumer Cooperative Bank and the Secretary of Housing and
Urban Development, shall transmit a report to the Congress on the
findings and conclusions reached as a result of the demonstration
program described in subsection (a)(2), together with legislative
recommendations, not later than September 30, 1981.''
42 USC -- 8107. Appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authorization
(1) There are authorized to be appropriated to the corporation to
carry out this subchapter $35,000,000 for fiscal year 1991 and
$36,500,000 for fiscal year 1992. Not more than 15 percent of any
amount appropriated under this paragraph for any fiscal year may be used
for administrative expenses.
(2) Of the amount appropriated pursuant to this subsection for each
of the fiscal years 1991 and 1992, amounts appropriated in excess of the
amount necessary to continue existing services of the Neighborhood
Reinvestment Corporation in revitalizing declining neighborhoods shall
be available --
(A) to expand the national neighborhood housing services network and
to assist network capacity development, including expansion of rental
housing resources;
(B) to expand the loan purchase capacity of the national neighborhood
housing services secondary market operated by Neighborhood Housing
Services of America;
(C) to make grants to provide incentives to extend low-income housing
use in connection with properties subject to prepayment pursuant to the
Low-Income Housing Preservation and Resident Ownership Act of 1990 (12
U.S.C. 4101 et seq.);
(D) to increase the resources available to the national neighborhood
housing services network programs for the purchase of multifamily and
single-family properties owned by the Secretary of Housing and Urban
Development for rehabilitation (if necessary) and sale to low- and
moderate-income families; and
(E) to provide matching capital grants, operating subsidies, and
technical services to mutual housing associations for the development,
acquisition, and rehabilitation of multifamily and single-family
properties (including properties owned by the Secretary of Housing and
Urban Development) to ensure affordability by low- and moderate-income
families.
(b) Availability of funds until expended
Funds appropriated pursuant to this section shall remain available
until expended.
(c) Accounting and reporting of non-Federal funds
Non-Federal funds received by the corporation, and funds received by
any recipient from a source other than the corporation, shall be
accounted for and reported as receipts and disbursements separate and
distinct from Federal funds.
(d) Preparation of business-type budget
The corporation shall prepare annually a business-type budget which
shall be submitted to the Office of Management and Budget, under such
rules and regulations as the President may establish as to the date of
submission, the form and content, the classifications of data, and the
manner in which such budget program shall be prepared and presented.
The budget of the corporation as modified, amended, or revised by the
President shall be transmitted to the Congress as a part of the annual
budget required by chapter 11 of title 31. Amendments to the annual
budget program may be submitted from time to time.
(Pub. L. 95-557, title VI, 608, Oct. 31, 1978, 92 Stat. 2119; Pub.
L. 96-153, title III, 307, Dec. 21, 1979, 93 Stat. 1113; Pub. L.
96-399, title III, 315(3), Oct. 8, 1980, 94 Stat. 1645; Pub. L.
97-35, title III, 314, Aug. 13, 1981, 95 Stat. 398; Pub. L. 98-181,
title I, 125, Nov. 30, 1983, 97 Stat. 1175; Pub. L. 98-479, title II,
203(m), Oct. 17, 1984, 98 Stat. 2231; Pub. L. 100-242, title V,
520(b), Feb. 5, 1988, 101 Stat. 1938; Pub. L. 101-625, title IX,
917(c), Nov. 28, 1990, 104 Stat. 4398.)
The Low-Income Housing Preservation and Resident Ownership Act of
1990, referred to in subsec. (a)(2)(C), probably means the Low-Income
Housing Preservation and Resident Homeownership Act of 1990, title II of
Pub. L. 100-242, as amended by Pub. L. 101-625, title VI, 601(a),
Nov. 28, 1990, 104 Stat. 4249, which is classified principally to
chapter 42 ( 4101 et seq.) of Title 12, Banks and Banking. For complete
classification of this Act to the Code, see Short Title note set out
under section 4101 of Title 12 and Tables.
1990 -- Subsec. (a). Pub. L. 101-625 amended subsec. (a) generally.
Prior to amendment, subsec. (a) read as follows: ''There are
authorized to be appropriated to the corporation to carry out this
subchapter $19,000,000 for fiscal year 1988, and $19,000,000 for fiscal
year 1989.''
1988 -- Subsec. (a). Pub. L. 100-242 amended subsec. (a) generally,
substituting appropriations authorization of $19,000,000 for fiscal
years 1988 and 1989 for prior authorizations not to exceed $16,512,000
for fiscal year 1984, and such sums as may be necessary for fiscal year
1985.
1984 -- Subsec. (d). Pub. L. 98-479 substituted ''chapter 11 of
title 31'' for ''the Budget and Accounting Act, 1921''.
1983 -- Subsec. (a). Pub. L. 98-181 substituted appropriations
authorization not in excess of $16,512,000 for fiscal year 1984, and
such sums as may be necessary for fiscal year 1985 for prior
authorization not to exceed $12,500,000, $12,000,000, $13,426,000, and
$14,950,000 for fiscal years 1979, 1980, 1981, and 1982, respectively.
1981 -- Subsec. (a). Pub. L. 97-35 inserted authorized of
appropriations for fiscal year 1982.
1980 -- Subsec. (a). Pub. L. 96-399 authorized appropriations of not
to exceed $13,426,000 for fiscal year 1981.
1979 -- Subsec. (a). Pub. L. 96-153 authorized appropriation of
$12,000,000 for fiscal year 1980.
Amendment by Pub. L. 97-35 effective Oct. 1, 1981, see section 371
of Pub. L. 97-35, set out as an Effective Date note under section 3701
of Title 12, Banks and Banking.
Section 917(a), (b) of Pub. L. 101-625 provided that:
''(a) Findings. -- The Congress finds that --
''(1) protecting the existing stock of unsubsidized privately held
lower income housing through the rehabilitation and revitalization of
declining neighborhoods is essential to a national housing policy that
seeks to increase the availability of affordable housing for low- and
moderate-income families;
''(2) the Neighborhood Reinvestment Corporation, the anchor of the
national neighborhood housing services network, was chartered by
Congress more than 10 years ago to revitalize neighborhoods for the
benefit of current residents by mobilizing public, private, and
community resources at the neighborhood level;
''(3) the national neighborhood housing services network has proven
its worth as a successful cost-effective program relying largely on
local initiative for the specific design of local programs;
''(4) the national neighborhood housing services network has had more
than 10 years of experience in revitalizing declining neighborhoods,
creating housing for low- and moderate-income families, and equipping
residents with skills and resources required to maintain safe and
healthy communities; and
''(5) expanding upon the existing capabilities, resources, and
potential of the national neighborhood housing services network is a
cost-effective response to the affordable housing and neighborhood
revitalization needs confronting the Nation, and is a strong preventive
measure in addressing the national tragedy of homelessness.
''(b) Purpose. -- It is the purpose of this section (amending this
section) to authorize appropriations for the Neighborhood Reinvestment
Corporation for fiscal years 1991 and 1992 to permit the corporation --
''(1) to carefully expand the capacities of the national neighborhood
housing services network;
''(2) to begin to meet the urgent need for neighborhood housing
services and mutual housing associations in neighborhoods across the
Nation as the effort to preserve affordable housing for low- and
moderate-income American families increases;
''(3) to increase and provide ongoing technical and capacity
development assistance to neighborhood housing services and related
public-private partnership-based nonprofit institutions involved in the
revitalization of neighborhoods for the benefit of current residents,
rehabilitation, preservation of existing housing stock, and production
of additional housing opportunities for low- and moderate-income
families;
''(4) to expand the loan purchase capacity of the national
neighborhood housing services secondary market, operated by Neighborhood
Housing Services of America, for loans made by neighborhood housing
services to residents who are unable to meet conventional lending
standards, and other loans for community development purposes;
''(5) to provide increased capacity development and matching grants
to preserve existing privately held unsubsidized rental housing
affordable to low- and moderate-income households and to create flexible
strategies effective in the diverse economic and geographic environments
of the Nation;
''(6) to make grants to provide incentives to extend low-income
housing use in connection with properties subject to prepayment pursuant
to the Low-Income Housing Preservation and Resident Ownership
(Homeownership) Act of 1990 (12 U.S.C. 4101 et seq.);
''(7) to increase the resources available to neighborhood housing
services network programs for the purchase of multifamily and
single-family properties owned by the Secretary of Housing and Urban
Development for rehabilitation (if necessary) and sale to low- and
moderate-income families;
''(8) to expand the national mutual housing association demonstration
by providing technical assistance and matching grants to assist low- and
moderate-income families to participate in such associations;
''(9) to increase resources available to neighborhood housing
services network programs for foreclosure intervention and prevention;
and
''(10) to create additional neighborhood housing services partnership
organizations to serve rural communities, Native Americans, Native
Hawaiians, and other communities in need.''
42 USC -- SUBCHAPTER II -- NEIGHBORHOOD SELF-HELP DEVELOPMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8121 to 8124. Repealed. Pub. L. 97-35, title III, 313(a),
Aug. 13, 1981, 95 Stat. 398
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8121, Pub. L. 95-557, title VII, 702, Oct. 31, 1978, 92
Stat. 2119, set forth congressional findings and statement of purposes
for neighborhood self-help development programs.
Section 8122, Pub. L. 95-557, title VII, 703, Oct. 31, 1978, 92
Stat. 2120, set forth provisions defining terms applicable to
subchapter.
Section 8123, Pub. L. 95-557, title VII, 704, Oct. 31, 1978, 92
Stat. 2120; Pub. L. 96-153, title I, 107(b), Dec. 21, 1979, 93 Stat.
1104, set forth provisions respecting grants and other forms of
assistance.
Section 8124, Pub. L. 95-557, title VII, 705, Oct. 31, 1978, 92
Stat. 2121; Pub. L. 96-153, title I, 107(a), Dec. 21, 1979, 93 Stat.
1104; Pub. L. 96-399, title I, 115, Oct. 8, 1980, 94 Stat. 1623,
related to authorization of appropriations for grants.
Sections 8121 to 8124 repealed effective Oct. 1, 1981, see section
371 of Pub. L. 97-35, set out as an Effective Date note under section
3701 of Title 12, Banks and Banking.
42 USC -- SUBCHAPTER III -- LIVABLE CITIES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8141. Congressional findings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Congress finds and declares --
(1) that artistic, cultural, and historic resources, including urban
design, constitute an integral part of a suitable living environment for
the residents of the Nation's urban areas, and should be available to
all residents of such areas, regardless of income;
(2) that the development or preservation of such resources is a
significant and necessary factor in restoring and maintaining the
vitality of the urban environment, and can serve as a catalyst for
improving decaying or deteriorated urban communities and expanding
economic opportunities, and for creating a sense of community identity,
spirit, and pride; and
(3) that the encouragement and support of local initiatives to
develop or preserve such resources, particularly in connection with
federally assisted housing or community development activities or in
communities with a high proportion of low-income residents, is an
appropriate function of the Federal Government.
(Pub. L. 95-557, title VIII, 802, Oct. 31, 1978, 92 Stat. 2122.)
For short title of this subchapter as the ''Livable Cities Act of
1978'', see section 801 of Pub. L. 95-557, set out as a note under
section 8101 of this title.
42 USC -- 8142. Statement of purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The primary purpose of this subchapter is to assist the efforts of
States, local governments, neighborhood and other organizations to
provide a more suitable living environment, expand cultural
opportunities, and to the extent practicable, stimulate economic
opportunities, primarily for the low and moderate income residents of
communities and neighborhoods in need of conservation and
revitalization, through the utilization, design or development of
artistic, cultural, or historic resources.
(Pub. L. 95-557, title VIII, 803, Oct. 31, 1978, 92 Stat. 2122.)
42 USC -- 8143. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purpose of this subchapter --
(1) the terms ''art'' and ''arts'' include, but are not limited to,
architecture (including preservation, restoration, or adaptive use of
existing structures), landscape architecture, urban design, interior
design, graphic arts, fine arts (including painting and sculpture),
performing arts (including music, drama, and dance), literature, crafts,
photography, communications media and film, as well as other similar
activities which reflect the cultural heritage of the Nation's
communities and their citizens;
(2) the term ''nonprofit organization'' means an organization in
which no part of its net earnings inures to the benefit of any private
stockholder or stockholders, individual or individuals and, if a private
entity, which is not disqualified for tax exemption under section
501(c)(3) of title 26 by reason of attempting to influence legislation
and does not participate in or intervene in (including the publishing or
distribution of statements) any political campaign on behalf of any
candidate for public office; such organizations may include States and
units of local government (including public agencies or special
authorities thereof), regional organizations of local governments and
nonprofit societies, neighborhood groups, institutions, organizations,
associations or museums;
(3) the term ''project'' means a program or activity intended to
carry out the purposes of this subchapter, including programs for
neighborhood and community-based arts programs, urban design, user needs
design, and the encouragement of the preservation of historic or other
structures which have neighborhood or community significance;
(4) the term ''Secretary'' means the Secretary of Housing and Urban
Development;
(5) the term ''Chairman'' means the Chairman of the National
Endowment for the Arts;
(6) the term ''Department'' means the Department of Housing and Urban
Development; and
(7) the term ''Endowment'' means the National Endowment for the Arts.
(Pub. L. 95-557, title VIII, 804, Oct. 31, 1978, 92 Stat. 2122;
Pub. L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095.)
1986 -- Par. (2). Pub. L. 99-514 substituted ''Internal Revenue Code
of 1986'' for ''Internal Revenue Code of 1954'', which for purposes of
codification was translated as ''title 26'' thus requiring no change in
text.
42 USC -- 8144. Grants to or contracts with organizations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authorization; purposes
The Secretary is authorized to make grants to, or enter into
contracts with, nonprofit organizations for the purpose of enabling such
organizations to undertake or support in cities, urban communities, or
neighborhoods, projects which the Secretary, in consultation with the
Chairman, determines will carry out the purposes of this subchapter and
which --
(1) have substantial artistic, cultural, historical, or design merit,
(2) represent community or neighborhood initiatives which have a
significant potential for conserving or revitalizing communities or
neighborhoods, and for enhancing community or neighborhood identity and
pride, and
(3) meet the criteria established jointly by the Secretary and the
Chairman pursuant to this section.
(b) Establishment of criteria and procedures for evaluation and
selection of projects; scope of criteria
The Secretary and the Chairman shall establish jointly criteria and
procedures for evaluating and selecting projects to be assisted under
this subchapter. Such criteria shall address, but need not be limited
to --
(1) artistic, cultural, historical, or design quality;
(2) the degree of broadly based, active involvement of neighborhood
residents, community groups, local officials, and persons with expertise
in the arts with the proposed project;
(3) the degree of or the potential for utilization or stimulation of
assistance or cooperation from other Federal, State, and local public
and private sources, including arts organizations;
(4) the feasibility of project implementation, including the
capability of the sponsor organization;
(5) the potential contribution to neighborhood revitalization and the
creation of a sense of community identity and pride;
(6) the potential for stimulating neighborhood economic and community
development, particularly for the benefit of persons of low and moderate
income; and
(7) the potential of utilization of the project by neighborhood
residents, particularly residents of low and moderate income, senior
citizens, and handicapped persons.
(c) Application requirements
No assistance shall be made under this subchapter except upon
application therefor submitted to the Secretary in accordance with
regulations and procedures established jointly by the Secretary and the
Chairman.
(d) Consultation requirements
Prior to the approval of any application for assistance under this
subchapter, the Secretary shall consult with the Chairman and, in
accordance with regulations and procedures established jointly by the
Secretary and the Chairman, seek the recommendations of State and local
officials and private citizens who have broad knowledge of, or
experience or expertise in, community and economic development and
revitalization, and of such officials and citizens who have broad
knowledge of, or expertise in, the arts.
(e) Regulations respecting matching requirements; waiver, etc.
The Secretary, in cooperation with the Chairman, shall prescribe
regulations which require that specific portions of the cost of any
projects assisted under this subchapter shall be provided from sources
other than funds made available under this subchapter. Such matching
requirements may vary depending on the type of applicant, and the
Secretary may reduce or waive such requirements solely in order to take
account of the financial capacity of the applicant.
(f) Certification of application
Grants and other assistance may be made available under this
subchapter only if the application contains a certification by the unit
of general local government in which the project will be located that
the project is consistent with and supportive of the objectives of that
government for the area in which the project is located.
(g) Available funds not to supplant other public or private funds
Funds made available under this subchapter shall not be used to
supplant other public or private funds.
(h) Availability of funds for administrative expenses
No more than 10 per centum of the funds appropriated for any fiscal
year under section 8146 of this title shall be available for
administrative expenses.
(Pub. L. 95-557, title VIII, 805, Oct. 31, 1978, 92 Stat. 2123.)
42 USC -- 8145. Coordination and development of program with other
Federal and non-Federal programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall coordinate the administration of the provisions
of this subchapter in cooperation with other Federal agencies and assure
that projects assisted under this subchapter are coordinated with
efforts undertaken by State and local public and private entities,
including arts organizations.
(Pub. L. 95-557, title VIII, 806, Oct. 31, 1978, 92 Stat. 2124.)
42 USC -- 8146. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There are authorized to be appropriated for carrying out the purposes
of this subchapter not to exceed $5,000,000 for fiscal year 1979, and
not to exceed $5,000,000 for fiscal year 1980. Any amounts appropriated
under this section shall remain available until expended.
(Pub. L. 95-557, title VIII, 807, Oct. 31, 1978, 92 Stat. 2124;
Pub. L. 96-153, title I, 108, Dec. 21, 1979, 93 Stat. 1105.)
1979 -- Pub. L. 96-153 reduced authorization of appropriation for
fiscal year 1980 from ''$10,000,000'' to ''$5,000,000''.
42 USC -- CHAPTER 91 -- NATIONAL ENERGY CONSERVATION POLICY
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8201. Findings and statement of purposes.
(a) Findings.
(b) Statement of purposes.
8211 to 8229. Omitted
8231. Grants for energy conserving improvements; establishment of
standards; authorization of appropriations.
8232. Residential energy efficiency standards study.
(a) General authority.
(b) Specific factors.
(c) Comments and findings by Secretary of Energy.
(d) Report date.
8233. Weatherization study.
8235. ''Residential building'' defined.
8235a. Approval of plans for prototype residential energy efficiency
programs and provision of financial assistance for such programs.
(a) Plan approval.
(b) Contract requirements.
(c) Provision of financial assistance.
(d) Limitation.
8235b. Applications for approval of plans for prototype residential
energy efficiency programs.
8235c. Approval of applications for plans for prototype residential
energy efficiency programs.
(a) Approval requirements.
(b) Factors in approving applications.
8235d. Rules and regulations.
(a) Proposed rules and regulations.
(b) Final rules and regulations.
8235e. Authority of Federal Energy Regulatory Commission to exempt
application of certain laws.
8235f. Application of other laws.
(a) Lack of immunity.
(b) Utility programs under part A.
(c) ''Antitrust laws'' defined.
8235g. Records and reports.
(a) Records.
(b) Reports.
8235h. Revoking approval of plans and terminating financial
assistance.
8235i. Authorization of appropriations.
(a) Authorization of appropriations.
(b) Availability.
8241. Definitions.
8242. Federal solar program.
8243. Duties of Secretary.
(a) Duties.
(b) Contents of proposals.
(c) Initial submission of proposals.
(d) Program to disseminate information to Federal procurement and
loan officers.
8244. Authorization of appropriations.
8251. Findings.
8252. Purpose.
8253. Energy management goals.
(a) Energy performance goal for Federal buildings.
(b) Implementation steps.
8254. Establishment and use of life cycle cost methods and
procedures.
(a) Establishment of life cycle cost methods and procedures.
(b) Use of life cycle cost methods and procedures.
(c) Use in non-Federal structures.
8255. Budget treatment for energy conservation measures.
8256. Incentives for agencies.
(a) In general.
(b) Implementation.
(c) Use of savings.
8257. Interagency Energy Management Task Force.
(a) In general.
(b) Members.
(c) Duties.
8258. Reports.
(a) Reports to Secretary.
(b) Reports to Congress.
8259. Definitions.
8260, 8261. Omitted.
8271. ''Federal facility'' and ''Secretary'' defined.
8272. Photovoltaic energy program.
8273. Purpose of program.
8274. Acquisition of systems.
8275. Administration.
8276. System evaluation and purchase program.
(a) Program.
(b) Other procurement.
8277. Advisory committee.
(a) Establishment.
(b) Membership.
(c) Termination.
8278. Authorization of appropriations.
8281 to 8281b. Repealed.
8282 to 8282b. Repealed.
8283, 8283a. Repealed.
8284. Repealed.
8285. Purpose.
8285a. Definitions.
8285b. Grants.
8285c. Authorization of appropriations.
8286. Consensus on factors and data for energy conservation
standards.
8286a. Use of factors and data.
8286b. Report.
8287. Authority to enter into contracts.
8287a. Payment of costs.
8287b. Reports.
8287c. Definitions.
42 USC -- SUBCHAPTER I -- GENERAL PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8201. Findings and statement of purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Findings
The Congress finds that --
(1) the United States has survived a period of energy shortage and
has made significant progress toward improving energy efficiency in all
sectors of the economy;
(2) effective measures must continue to be taken by the Federal
Government and other users and suppliers of energy to control the rate
of growth of demand for energy and the efficiency of its use;
(3) the continuation of this effort will permit the United States to
become increasingly independent of the world oil market, less vulnerable
to interruption of foreign oil supplies, and more able to provide energy
to meet future needs; and
(4) all sectors of the economy of the United States should continue
to reduce significantly the demand for nonrenewable energy resources
such as oil and natural gas by implementing and maintaining effective
conservation measures for the efficient use of these and other energy
sources.
(b) Statement of purposes
The purposes of this chapter are to provide for the regulation of
interstate commerce, to reduce the growth in demand for energy in the
United States, and to conserve nonrenewable energy resources produced in
this Nation and elsewhere, without inhibiting beneficial economic
growth.
(Pub. L. 95-619, title I, 102, Nov. 9, 1978, 92 Stat. 3208; Pub.
L. 99-412, title I, 101, Aug. 28, 1986, 100 Stat. 932.)
This chapter, referred to in subsec. (b), was in the original ''this
Act'', meaning Pub. L. 95-619, Nov. 9, 1978, 92 Stat. 3206, as
amended, known as the National Energy Conservation Policy Act. For
complete classification of this Act to the Code, see Short Title note
set out below and Tables.
1986 -- Subsec. (a). Pub. L. 99-412 amended subsec. (a) generally.
Prior to amendment, subsec. (a) read as follows: ''The Congress finds
that --
''(1) the United States faces an energy shortage arising from
increasing demand for energy, particularly for oil and natural gas, and
insufficient domestic supplies of oil and natural gas to satisfy that
demand;
''(2) unless effective measures are promptly taken by the Federal
Government and other users of energy to reduce the rate of growth of
demand for energy, the United States will become increasingly dependent
on the world oil market, increasingly vulnerable to interruptions of
foreign oil supplies, and unable to provide the energy to meet future
needs; and
''(3) all sectors of our Nation's economy must begin immediately to
significantly reduce the demand for nonrenewable energy resources such
as oil and natural gas by implementing and maintaining effective
conservation measures for the efficient use of these and other energy
sources.''
Pub. L. 100-615, 1, Nov. 5, 1988, 102 Stat. 3185, provided that:
''This Act (enacting section 5001 of Title 15, Commerce and Trade,
amending sections 6361 and 8251 to 8259 of this title, omitting sections
8260 and 8261 of this title, and enacting provisions set out as a note
under section 8253 of this title) may be cited as the 'Federal Energy
Management Improvement Act of 1988'.''
Section 1 of Pub. L. 99-412 provided that: ''This Act (enacting
sections 8227 to 8229 of this title, amending sections 8201, 8211, 8213
to 8220, and 8226 of this title, repealing sections 8281 to 8281b, 8282
to 8282b, 8283, 8283a, and 8284 of this title, and enacting provisions
set out as notes under sections 8211, 8216, 8217, 8281, and 8282 of this
title) may be cited as the 'Conservation Service Reform Act of 1986'.''
Section 101(a) of Pub. L. 95-619 provided that: ''This Act
(enacting this chapter, sections 1490i, 6215, 6311 to 6317, 6344a, 6371,
6371a to 6371j, 6372, 6372a to 6372i, 6373, 6873, and 7141 of this
title, and sections 1723f to 1723h of Title 12, Banks and Banking,
amending sections 300k-2, 300n-1, 1437c, 1471, 1474, 1483, 6202, 6211,
6233 to 6241, 6243 to 6245, 6272 to 6274, 6291 to 6299, 6303 to 6309,
6321 to 6327, 6341 to 6346, 6361, 6381, 6383, 6392, 6836, 6862, 6863,
6865, and 6872 of this title, sections 1451, 1703, 1709, 1713, 1715z-6,
1717, and 1735f-4 of Title 12, and sections 2006 and 2008 of Title 15,
Commerce and Trade, repealing section 6397 of this title, and enacting
provisions set out as notes under sections 6321, 6344a, 6345, 6371,
6372, and 8201 of this title, section 2006 of Title 15, and section 217
of Title 23, Highways) may be cited as the 'National Energy Conservation
Policy Act'.''
Section 561 of Pub. L. 95-619 provided that: ''This part (part 4 (
561-569) of title V of Pub. L. 95-619, enacting sections 8271 to 8278 of
this title) may be cited as the 'Federal Photovoltaic Utilization
Act'.''
42 USC -- SUBCHAPTER II -- RESIDENTIAL ENERGY CONSERVATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- Utility Program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8211 to 8229. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections were omitted pursuant to section 8229 of this title, which
terminated authority under this part June 30, 1989.
Section 8211, Pub. L. 95-619, title II, 210, Nov. 9, 1978, 92
Stat. 3209; Pub. L. 96-294, title V, 541, 542(a), June 30, 1980, 94
Stat. 741; Pub. L. 99-412, title I, 102(d)(1), (h)(1), Aug. 28,
1986, 100 Stat. 933, 934, defined terms for this part.
Section 8212, Pub. L. 95-619, title II, 211, Nov. 9, 1978, 92
Stat. 3211, related to coverage of this part.
Section 8213, Pub. L. 95-619, title II, 212, Nov. 9, 1978, 92
Stat. 3211; Pub. L. 96-294, title V, 542(b), June 30, 1980, 94 Stat.
741; Pub. L. 99-412, title I, 102(c), (d)(2), (h)(2), Aug. 28, 1986,
100 Stat. 933, 934; Pub. L. 100-418, title V, 5115(c), Aug. 23,
1988, 102 Stat. 1433, related to rules of Secretary for submission and
approval of plans.
Section 8214, Pub. L. 95-619, title II, 213, Nov. 9, 1978, 92
Stat. 3213; Pub. L. 96-294, title V, 542(c), 543, 546(b), (c), June
30, 1980, 94 Stat. 742, 744; Pub. L. 99-412, title I, 102(b)(3),
(h)(3), Aug. 28, 1986, 100 Stat. 933, 934, related to requirements for
State residential energy conservation plans for regulated utilities.
Section 8215, Pub. L. 95-619, title II, 214, Nov. 9, 1978, 92
Stat. 3214; Pub. L. 99-412, title I, 102(h)(4), Aug. 28, 1986, 100
Stat. 934, related to plan requirements for nonregulated utilities and
home heating suppliers.
Section 8216, Pub. L. 95-619, title II, 215, Nov. 9, 1978, 92
Stat. 3215; Pub. L. 96-294, title V, 544, June 30, 1980, 94 Stat.
742; Pub. L. 99-412, title I, 102(a)(1), (2)(A), (b)(1), (e),
(h)(5)-(7), Aug. 28, 1986, 100 Stat. 932-934, related to utility
programs.
Section 8217, Pub. L. 95-619, title II, 216, Nov. 9, 1978, 92
Stat. 3217; Pub. L. 96-294, title V, 545, 546(a), 547, June 30,
1980, 94 Stat. 743, 744; Pub. L. 99-412, title I, 102(h)(8), (9),
106(a)-(c), Aug. 28, 1986, 100 Stat. 934, 941, 942; Pub. L. 99-514,
2, Oct. 22, 1986, 100 Stat. 2095, related to supply and installation
by public utilities.
Section 8218, Pub. L. 95-619, title II, 217, Nov. 9, 1978, 92
Stat. 3219; Pub. L. 99-412, title I, 102(a)(1), (b)(2), Aug. 28,
1986, 100 Stat. 932, 933, related to home heating supplier programs.
Section 8219, Pub. L. 95-619, title II, 218, Nov. 9, 1978, 92
Stat. 3220; Pub. L. 99-412, title I, 102(g), Aug. 28, 1986, 100
Stat. 934, related to temporary programs.
Section 8220, Pub. L. 95-619, title II, 219, Nov. 9, 1978, 92
Stat. 3220; Pub. L. 99-412, title I, 102(f), Aug. 28, 1986, 100
Stat. 933, related to Federal standby authority.
Section 8221, Pub. L. 95-619, title II, 220, Nov. 9, 1978, 92
Stat. 3222; Pub. L. 96-294, title V, 542(d), 550, June 30, 1980, 94
Stat. 742, 745, provided relationship to other laws.
Section 8222, Pub. L. 95-619, title II, 221, Nov. 9, 1978, 92
Stat. 3223, authorized promulgation of rules.
Section 8223, Pub. L. 95-619, title II, 222, Nov. 9, 1978, 92
Stat. 3223; Pub. L. 100-418, title V, 5115(c), Aug. 23, 1988, 102
Stat. 1433, related to product standards.
Section 8224, Pub. L. 95-619, title II, 223, Nov. 9, 1978, 92
Stat. 3223, authorized appropriations.
Section 8225, Pub. L. 95-619, title II, 224, Nov. 9, 1978, 92
Stat. 3223, required report on energy conservation in apartment
buildings.
Section 8226, Pub. L. 95-619, title II, 225, Nov. 9, 1978, 92
Stat. 3224; Pub. L. 99-412, title I, 104(a), Aug. 28, 1986, 100
Stat. 939, provided for reports and dissemination of information.
Section 8227, Pub. L. 95-619, title II, 226, as added Pub. L.
99-412, title I, 103(a), Aug. 28, 1986, 100 Stat. 935, related to
alternative State plans.
Section 8228, Pub. L. 95-619, title II, 227, as added Pub. L.
99-412, title I, 103(a), Aug. 28, 1986, 100 Stat. 937, related to
waiver for regulated and nonregulated utilities.
Section 8229, Pub. L. 95-619, title II, 228, as added Pub. L.
99-412, title I, 105(a), Aug. 28, 1986, 100 Stat. 941, provided that
all authority, including authority to enforce any prohibitions, under
this part would terminate June 30, 1989, except that such expiration
would not affect any action or proceeding based upon an act committed
prior to midnight June 30, 1989, and not finally determined by such
date.
42 USC -- Part B -- Miscellaneous
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8231. Grants for energy conserving improvements;
establishment of standards; authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(1) The Secretary of Housing and Urban Development is authorized to
make grants to finance energy conserving improvements (as defined in
subparagraph (2) of the last paragraph of section 1703(a) of title 12
/1/ to projects which are financed with loans under section 1701q of
title 12, or which are subject to mortgages insured under section
1715l(d)(3) or section 1715z-1 of title 12. The Secretary shall make
assistance available under this section on a priority basis to those
projects which are in financial difficulty as a result of high energy
costs. In carrying out the program authorized by this section, the
Secretary shall issue regulations requiring that any grant made under
this section shall be made only on the condition that the recipient of
such grant shall take steps (prescribed by the Secretary) to assure that
the benefits derived from such grants in terms of lower energy costs
shall accure /2/ to tenants in the form of lower rentals or to the
Federal Government in the form of a lower operating subsidy if such a
subsidy is being paid to such recipient.
(2) The Secretary shall establish minimum standards for energy
conserving improvements to multifamily dwelling units to be assisted
under this section.
(3) There are authorized to be appropriated to carry out the
provisions of this section not to exceed $25,000,000.
(Pub. L. 95-619, title II, 251(b), Nov. 9, 1978, 92 Stat. 3235.)
/1/ So in original. Probably should be followed by a closing
parenthesis.
/2/ So in original. Probably should be ''accrue''.
42 USC -- 8232. Residential energy efficiency standards study
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General authority
The Secretary of Housing and Urban Development (hereinafter in this
section referred to as the ''Secretary'') shall, in coordination with
the Secretary of Agriculture, the Secretary of the Treasury, the
Secretary of Veterans Affairs, the Secretary of Energy, and such other
representatives of Federal, State, and local governments as the
Secretary shall designate, conduct a study, utilizing the services of
the National Institute of Building Sciences pursuant to appropriate
contractual arrangements, for the purpose of determining the need for,
the feasibility of, and the problems of requiring, by mandatory Federal
action, that all residential dwelling units meet applicable energy
efficient standards. The subjects to be examined shall include, but not
be limited to, mandatory notification to purchasers, and policies to
prohibit exchange or sale, of properties which do not conform to such
standards.
(b) Specific factors
In conducting such study, the Secretary shall consider at least the
following factors --
(1) the extent to which such requirement would protect a prospective
purchaser from the uncertainty of not knowing the energy efficiency of
the property he proposes to purchase;
(2) the extent to which such requirement would contribute to the
Nation's energy conservation goals;
(3) the extent to which such a requirement would affect the real
estate, home building, and mortgage banking industries;
(4) the sanctions which might be necessary to make such a requirement
effective and the administrative impediments there might be to
enforcement of such sanctions;
(5) the possible impact on sellers and purchasers as a result of the
implementation of mandatory Federal actions, taking into account the
experience of the Federal Government in imposing mandatory requirements
concerning the purchase and sale of real property as occurred under the
Real Estate Settlement Procedures Act of 1974 (12 U.S.C. 2601 et seq.)
and the Federal Disaster Protection Act of 1973;
(6) an analysis of the effect of such a requirement on the economy as
a whole and on the Nation's security as compared to the impact on the
credit and housing markets caused by such a requirement;
(7) the effect of such a requirement on availability of credit in the
housing industry;
(8) the extent to which the imposition of mandatory Federal
requirements would temporarily reduce the number of residential
dwellings available for sale and the resulting effect of such mandatory
actions on the price of those remaining dwelling units eligible for
sale; and
(9) the possible uncertainty, during the period of developing the
standards, as to what standards might be imposed and any resulting
effect on major housing rehabilitation efforts and voluntary efforts for
energy conservation.
(c) Comments and findings by Secretary of Energy
The Secretary shall incorporate into such study comments by the
Secretary of Energy on the effects on the economy as a whole and on the
Nation's security which may result from the requirement described in
subsection (a) of this section as compared to the impact on the credit
and housing markets likely to be caused by such a requirement. In
addition, the Secretary shall incorporate into such study the following
findings by the Secretary of Energy:
(1) the savings in energy costs resulting from the requirement
described in subsection (a) of this section throughout the estimated
remaining useful life of the existing residential buildings to which
such requirement would apply; and
(2) the total cost per barrel of oil equivalent, in obtaining the
energy savings likely to result from such requirement, computed for each
class of existing residential buildings to which such requirement would
apply.
(d) Report date
The Secretary shall report, no later than one year after November 9,
1978, to both Houses of the Congress with regard to the findings made as
a result of such study along with any recommendations for legislative
proposals which the Secretary determines should be enacted with respect
to the subject of such study.
(Pub. L. 95-619, title II, 253, Nov. 9, 1978, 92 Stat. 3236; Pub.
L. 102-54, 13(q)(12), June 13, 1991, 105 Stat. 281.)
The Real Estate Settlement Procedures Act of 1974, referred to in
subsec. (b)(5), is Pub. L. 93-533, Dec. 22, 1974, 88 Stat. 1724, as
amended, which is classified principally to chapter 27 ( 2601 et seq.)
of Title 12, Banks and Banking. For complete classification of this Act
to the Code, see Short Title note set out under section 2601 of Title 12
and Tables.
The Federal Disaster Protection Act of 1973, referred to in subsec.
(b)(5), probably means the Flood Disaster Protection Act of 1973, Pub.
L. 93-234, Dec. 31, 1973, 87 Stat. 975, as amended, which enacted
sections 4002, 4003, 4012a, 4104 to 4107, and 4128 of this title,
amended sections 4001, 4013 to 4016, 4026, 4054, 4056, 4101, and 4121 of
this title and sections 24 and 1709-1 of Title 12, repealed section 4021
of this title, and enacted a provision set out as a note under section
4001 of this title. For complete classification of this Act to the
Code, see Short Title of 1973 Amendment note set out under section 4001
of this title and Tables.
1991 -- Subsec. (a). Pub. L. 102-54 substituted ''Secretary of
Veterans Affairs'' for ''Administrator of Veterans' Affairs''.
42 USC -- 8233. Weatherization study
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The President shall conduct a study which shall monitor the
weatherization activities authorized by this Act and amendments made
thereby and those weatherization activities undertaken, independently of
this Act and such amendments. The President shall report to the
Congress within one year from November 9, 1978, and annually thereafter,
concerning --
(1) the extent of progress being made through weatherization
activities toward the achievement of national energy conservation goals;
(2) adequacy and costs of materials necessary for weatherization
activities; and
(3) the need for and desirability of modifying weatherization
activities authorized by this Act, and amendments made thereby and of
extending such activities to a broader range of income groups than are
being assisted under this Act and such amendments.
(Pub. L. 95-619, title II, 254, Nov. 9, 1978, 92 Stat. 3237.)
This Act, referred to in text, is Pub. L. 95-619, Nov. 9, 1978, 92
Stat. 3206, as amended, known as the National Energy Conservation
Policy Act. For complete classification of this Act to the Code, see
Short Title note set out under section 8201 of this title and Tables.
42 USC -- Part C -- Residential Energy Efficiency Programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8235. ''Residential building'' defined
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this part, the term ''residential building'' means any
building used as a residence which is not a new building to which final
standards under sections 6833(a) and 6834 /1/ of this title apply and
which has a system for heating, cooling, or both.
(Pub. L. 95-619, title II, 261, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 746.)
Section 6834 of this title, referred to in text, was repealed by Pub.
L. 97-35, title X, 1041(b), Aug. 13, 1981, 95 Stat. 621.
Section 561 of subtitle C ( 562-563) of title V of Pub. L. 96-294
provided that: ''It is the purpose of this subtitle (enacting this
part) --
''(1) to establish a program under which the Secretary of Energy may
provide assistance to State and local governments to encourage up to
four demonstration programs that make energy conservation measures
available without charge to residential property owners and tenants
under a plan designed to maximize the energy savings available in
residential buildings in designated areas; and
''(2) to demonstrate through such program prototype residential
energy efficiency plans under which State and local governments, State
regulatory authorities, and public utilities may participate in a
cooperative manner with public or private entities to install energy
conservation measures in the greatest possible number of residential
buildings within their respective jurisdictions or service areas.''
/1/ See References in Text note below.
42 USC -- 8235a. Approval of plans for prototype residential energy
efficiency programs and provision of financial assistance for such
programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plan approval
The Secretary may approve any plan developed by a State or local
government, for the establishment of a prototype residential energy
efficiency program, which is designed to demonstrate the feasibility,
economics, and energy conserving potential of such program, if an
application for such plan is submitted pursuant to section 8235b of this
title, the application is approved pursuant to section 8235c of this
title, and the plan provides for --
(1) the entering into a contract by a public utility with one or more
persons not under the control of, and not affiliates or subsidiaries of,
such utility for the implementation of a program to encourage energy
conservation, including the supply and installation of the energy
conservation measures as specified in such contract in residential
buildings located in the portion of the utility's service area
designated by the contract, which contract includes the provisions
described in subsection (b) of this section;
(2) the selection by the public utility in a fair, open, and
nondiscriminatory manner of the person or persons to contract with
pursuant to paragraph (1);
(3) the payment by the public utility to the person or persons
contracted with under paragraph (1) of a specified price for each unit
of energy saved by such utility as a result of the program during the
period the contract is in effect, which price is based on the value to
the utility of the energy saved;
(4) the determination, by a procedure established by the State or
local government developing the plan, of the amount of energy saved by a
public utility as a result of the program carried out under the plan,
which procedure is described in the contract;
(5) in the case of a regulated public utility, the approval in
writing by the State regulatory authority exercising ratemaking
authority over such utility of the contract described in paragraph (1),
the manner of selection described in paragraph (2), the payment
described in paragraph (3), and the procedure described in paragraph
(4); and
(6) the enforcement of the provisions of the contract, entered into
pursuant to paragraph (1), which are required to be included pursuant to
subsection (b) of this section.
(b) Contract requirements
Any contract entered into by a public utility under subsection (a)(1)
of this section shall require any person or persons entering into such
contract with a public utility to offer to the owner or occupant of each
residential building in the portion of the utility's service area
designated in the contract, without charge --
(1) an inspection of such building to determine and inform such owner
or occupant of --
(A) the energy conservation measures which will be supplied and
installed in such residential building pursuant to paragraph (2);
(B) the savings in energy costs that are likely to result from the
installation of such energy conservation measures;
(C) suggestions (including suggestions developed by the Secretary) of
energy conservation techniques, including adjustments in energy use
patterns and modifications in household activities, which can be used by
the owner or occupant of the building to save energy and which do not
require the installation of energy conservation measures; and
(D) the savings in energy costs that are likely to result from the
adoption of such suggested energy conservation techniques;
(2) the supply and installation, with the approval of the owner of
the residential building, in such building in a timely manner of the
energy conservation measures which are as specified in the contract and
which the owner or occupant was informed (pursuant to the inspection
under paragraph (1)) would be supplied and installed in such building;
and
(3) a written warranty that at a minimum any defect in materials,
manufacture, design, or installation of any energy conservation measures
supplied and installed pursuant to paragraph (2), found not later than
one year after the date of installation, will be remedied without charge
and within a reasonable period of time.
(c) Provision of financial assistance
The Secretary may provide financial assistance to any State or local
government to carry out any plan for the establishment of a prototype
residential energy efficiency program if the plan is approved under
subsection (a) of this section.
(d) Limitation
The Secretary may approve under subsection (a) of this section not
more than 4 plans for the establishment of prototype residential energy
efficiency programs.
(Pub. L. 95-619, title II, 262, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 746.)
42 USC -- 8235b. Applications for approval of plans for prototype
residential energy efficiency programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Each application for the approval of a plan under section 8235a(a) of
this title for the establishment of a prototype residential energy
efficiency program shall be submitted by a State or local government and
shall include, at least --
(1) a description of the plan, including the provisions of the plan
specified in section 8235a(a) of this title and a description of the
portion of the service area of the public utility proposing to enter
into a contract under section 8235a(a)(1) of this title which is
designated under the contract;
(2) a description of the manner in which the provisions of the plan
specified in section 8235a(a) of this title are to be met;
(3) a description of the contract to be entered into pursuant to
section 8235a(a)(1) of this title and the manner in which the
requirements of the contract contained in section 8235a(b) of this title
are to be met;
(4) the record of the public hearing conducted pursuant to section
8235c(a)(2) of this title; and
(5) any other information determined by the Secretary to be necessary
to carry out this part.
(Pub. L. 95-619, title II, 263, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 748.)
42 USC -- 8235c. Approval of applications for plans for prototype
residential energy efficiency programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Approval requirements
The Secretary may approve an application submitted under section
8235b of this title for a plan establishing a prototype residential
energy efficiency program only if --
(1) the application is approved in writing --
(A) by the public utility which is to enter into the contract under
the plan;
(B) by the State regulatory authority having ratemaking authority
over such public utility, in the case of a regulated utility; and
(C) by the Governor (or any State agency specifically authorized
under State law to approve such plans) of the State whose government is
submitting the application (if the application is submitted by a State
government) or of the State in which the local government is located (if
the application is submitted by a local government); and
(2) the application has been published, a public hearing on the
application has been conducted, after notice to the public, at which
representatives of the public utility which is to enter into the
contract under the plan, persons engaged in the supply or installation
of residential energy conservation measures, and members of the public
(including ratepayers of such public utility and other interested
individuals) had an opportunity to provide comment on the application,
and any amendments to the application, which may be made to take into
account the proceedings of the hearing, are made.
(b) Factors in approving applications
The Secretary shall take into consideration in approving an
application under subsection (a) of this section for a plan establishing
a prototype residential energy efficiency program --
(1) the potential for energy savings from the demonstration of the
program;
(2) the likelihood that the value of the energy saved by public
utilities under the program will be sufficient to cover the estimated
cost of the energy conservation measures to be supplied and installed
under the program;
(3) the anticipated effects of the program on competition in the
portion of the service area of the public utility designated in the
contract entered into under the plan; and
(4) such other factors as the Secretary determines are appropriate.
(Pub. L. 95-619, title II, 264, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 748.)
42 USC -- 8235d. Rules and regulations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Proposed rules and regulations
The Secretary shall issue proposed rules and regulations to carry out
this part not later than 120 days after June 30, 1980.
(b) Final rules and regulations
The Secretary shall issue final rules and regulations to carry out
this part not later than 90 days after the issuance of proposed rules
and regulations under subsection (a) of this section.
(Pub. L. 95-619, title II, 265, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 749.)
42 USC -- 8235e. Authority of Federal Energy Regulatory Commission to
exempt application of certain laws
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Federal Energy Regulatory Commission may exempt from any
provisions in sections 4, 5, and 7 of the Natural Gas Act (17 /1/ U.S.C.
717c, 717d, and 717f) and titles II and IV of the Natural Gas Policy Act
of 1978 (15 U.S.C. 3341 through 3348 and 3391 through 3394) the sale or
transportation, by any public utility, local distribution company,
interstate or intrastate pipeline, or any other person, of any natural
gas which is determined (in the case of a regulated utility, company,
pipeline, or person) by the State regulatory authority having
rate-making authority over such utility, company, pipeline, or person,
or (in the case of a nonregulated utility, company, pipeline, or person)
by such utility, company, pipeline, or person, to have been conserved
because of a prototype residential energy efficiency program which is
established under a plan approved under section 8235a(a) of this title,
if the Commission determines that such exemption is necessary to make
feasible the demonstration of such prototype residential energy
efficiency program.
(Pub. L. 95-619, title II, 266, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 749.)
The Natural Gas Policy Act of 1978, referred to in text, is Pub. L.
95-621, Nov. 9, 1978, 92 Stat. 3350, as amended. Title II of the
Natural Gas Policy Act of 1978 was classified generally to subchapter II
( 3341 et seq.) of chapter 60 of Title 15, Commerce and Trade, prior to
its repeal by Pub. L. 100-42, 2(a), May 21, 1987, 101 Stat. 314.
Title IV of the Natural Gas Policy Act of 1978 is classified generally
to subchapter IV ( 3391 et seq.) of chapter 60 of Title 15. For
complete classification of this Act to the Code, see Short Title note
set out under section 3301 of Title 15 and Tables.
/1/ So in original. Should be ''15''.
42 USC -- 8235f. Application of other laws
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Lack of immunity
No provision contained in this part --
(1) shall restrict any agency of the United States or any State from
exercising its powers under any law to prevent unfair methods of
competition and unfair or deceptive acts or practices;
(2) shall provide to any person any immunity from civil or criminal
liability;
(3) shall create any defenses to actions brought under the antitrust
laws; or
(4) shall modify or abridge any private right of action under the
antitrust laws.
(b) Utility programs under part A
Any public utility entering into a contract under a plan for the
establishment of a prototype residential energy efficiency program
approved under section 8235a(a) of this title shall not be required to
carry out, with respect to any residential building located in the
portion of the utility's service area designated in the contract, the
actions required to be contained in such utility's program by
subsections (a) and (b) of section 8216 /1/ of this title, if the
contract requires such actions (or equivalent actions as determined by
the Secretary) to be taken.
(c) ''Antitrust laws'' defined
For purposes of this section, the term ''antitrust laws'' means --
(1) the Sherman Act (15 U.S.C. 1 et seq.);
(2) the Clayton Act (15 U.S.C. 12 et seq.);
(3) the Federal Trade Commission Act (15 U.S.C. 41 et seq.);
(4) sections 73 and 74 of the Wilson Tariff Act (15 U.S.C. 8 and 9);
and
(5) sections 2, 3, and 4 of the Act entitled ''An Act to amend
section 2 of the Act entitled 'An Act to supplement existing laws
against unlawful restraints and monopolies, and for other purposes',
approved October 15, 1914, as amended (U.S.C., title 15, sec. 13), and
for other purposes'' approved June 19, 1936 (15 U.S.C. 21a, 13a, and
13b, commonly known as the Robinson-Patman Antidiscrimination Act).
(Pub. L. 95-619, title II, 267, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 749.)
Section 8216 of this title, referred to in subsec. (b), was omitted
from the Code pursuant to section 8229 of this title, which terminated
authority under that section June 30, 1989.
The Sherman Act (15 U.S.C. 1 et seq.), referred to in subsec.
(c)(1), is act July 2, 1890, ch. 647, 26 Stat. 209, as amended, which
is classified to sections 1 to 7 of Title 15, Commerce and Trade. For
complete classification of this Act to the Code, see Short Title note
set out under section 1 of Title 15 and Tables.
The Clayton Act (15 U.S.C. 12 et seq.), referred to in subsec.
(c)(2), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, as amended,
which is classified generally to sections 12, 13, 14 to 19, 20, 21, and
22 to 27 of Title 15, and sections 52 and 53 of Title 29, Labor. For
further details and complete classification of this Act to the Code, see
References in Text note set out under section 12 of Title 15 and Tables.
The Federal Trade Commission Act (15 U.S.C. 41 et seq.), referred to
in subsec. (c)(3), is act Sept. 26, 1914, ch. 311, 38 Stat. 717, as
amended, which is classified generally to subchapter I ( 41 et seq.) of
chapter 2 of Title 15. For complete classification of this Act to the
Code, see section 58 of Title 15 and Tables.
/1/ See References in Text note below.
42 USC -- 8235g. Records and reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Records
Each State and local government submitting any application for a plan
which is approved under section 8235a(a) of this title, and each public
utility and person or persons entering into a contract under such a
plan, shall keep such records and make such reports as the Secretary may
require. The Secretary and the Comptroller General of the United States
shall have access, at reasonable times and under reasonable conditions,
to any books, documents, papers, records, and reports of each such State
and local government, utility, and person or persons which the Secretary
determines, in consultation with the Comptroller General of the United
States, are pertinent to this part.
(b) Reports
The Secretary shall make an annual report to the President on the
activities carried out under this part which shall be submitted to the
Congress with the annual report on the activities of the Department of
Energy required by section 7267 of this title and which shall contain --
(1) an estimate of the total amount of energy saved as a result of
the activities carried out under this part;
(2) an estimate of the annual savings in energy anticipated as a
result of each prototype residential energy efficiency program
established under a plan approved under section 8235a(a) of this title;
(3) an analysis, developed in consultation with the Federal Trade
Commission and the Department of Justice, of the impact on competition
of each prototype residential energy efficiency program established
under a plan approved under section 8235a(a) of this title; and
(4) if the Secretary determines that it is appropriate, an analysis
of the impact of expanding the approval of plans under section 8235a(a)
of this title to establish prototype residential energy efficiency
programs, and the provision of financial assistance to such programs, on
a national basis and an assessment of the alternative methods by which
such an expansion could be accomplished.
(Pub. L. 95-619, title II, 268, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 750.)
42 USC -- 8235h. Revoking approval of plans and terminating financial
assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall revoke the approval of any plan under section
8235a(a) of this title for the establishment of a prototype residential
energy efficiency program, and shall terminate the provision of
financial assistance under section 8235a(c) of this title to carry out
such plan, if the Secretary determines, in consultation with the Federal
Trade Commission and after notice and the opportunity for a hearing,
that carrying out such plan --
(1) causes unfair methods of competition;
(2) has a substantial adverse effect on competition in the portion of
the service area of the public utility designated by the contract
entered into under the plan; or
(3) provides a supplier or contractor of energy conservation measures
with an unreasonably large share of the contracts for the supply or
installation of such measures under such plan in the service area of the
public utility designated by the contract entered into under such plan.
(Pub. L. 95-619, title II, 269, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 751.)
42 USC -- 8235i. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authorization of appropriations
There is authorized to be appropriated to carry out this part --
(1) the sum of $10,000,000 for the fiscal year ending on September
30, 1981; and
(2) the sum equal to $10,000,000 minus the amount appropriated for
the fiscal year ending on September 30, 1981, under the authorization
contained in this section, for the fiscal year ending on September 30,
1982.
(b) Availability
Any funds appropriated under the authorization contained in this
section shall remain available until expended.
(Pub. L. 95-619, title II, 270, as added Pub. L. 96-294, title V,
562, June 30, 1980, 94 Stat. 751.)
42 USC -- SUBCHAPTER III -- FEDERAL ENERGY INITIATIVE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- Demonstration of Solar Heating and Cooling in
Federal Buildings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8241. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in the part --
(1) The term ''Federal agency'' means --
(A) an Executive agency as defined in section 105 of title 5; and
(B) each entity specified in paragraphs (B) through (H) of subsection
(1) of section 5721 of title 5.
(2) The term ''Federal building'' means any building or other
structure owned in whole or part by the United States or any Federal
agency, including any such structure occupied by a Federal agency under
a lease-acquisition agreement under which the United States or a Federal
agency will receive fee simple title under the terms of such agreement
without further negotiation.
(3) The term ''solar heating'' means, with respect to any Federal
building, the use of solar energy to meet all or part of the heating
needs of such building (including hot water), or all or part of the
needs of such building for hot water.
(4) The term ''solar heating and cooling'' means the use of solar
energy to provide all or part of the heating needs of a Federal building
(including hot water) and all or part of the cooling needs of such
building, or all or part of the needs of such building for hot water.
(5) The term ''solar energy equipment'' means equipment for solar
heating or solar heating and cooling.
(6) The term ''Secretary'' means the Secretary of Energy.
(Pub. L. 95-619, title V, 521, Nov. 9, 1978, 92 Stat. 3275.)
42 USC -- 8242. Federal solar program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary, in consultation with the Administrator of the General
Services Administration, shall develop and carry out a program to
demonstrate the application to buildings of solar heating and solar
heating and cooling technology in Federal buildings.
(Pub. L. 95-619, title V, 522, Nov. 9, 1978, 92 Stat. 3276.)
42 USC -- 8243. Duties of Secretary
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Duties
In exercising the authority provided by section 8242 of this title,
the Secretary, in consultation with the Administrator of the General
Services Administration, shall --
(1) promulgate, by rule --
(A) requirements under which Federal agencies shall submit proposals
for the installation of solar energy equipment in Federal buildings
which are under their control and which are selected in accordance with
procedures set forth in such rule, and
(B) criteria by which proposals under subparagraph (A) will be
evaluated, which criteria shall provide for the inclusion in each
proposal of a complete analysis of the present value, as determined by
the Secretary, of the costs and benefits of the proposal to the Federal
agency, and for the demonstration, to the maximum extent practicable, of
innovative and diverse applications to a variety of types of Federal
buildings of solar heating and solar heating and cooling technology, and
for location of demonstration projects in areas where a private sector
market for solar energy equipment is likely to develop;
(2) evaluate in writing each such proposal pursuant to the criteria
promulgated pursuant to paragraph (1)(B), and make such evaluation
available to the agency and, upon request, to any person;
(3) provide technical and financial assistance by interagency
agreement for implementing a proposal evaluated under paragraph (2) and
approved by the Secretary; except that such assistance shall be limited
to the design, acquisition, construction, and installation of solar
energy equipment;
(4) provide, by rule, that Federal agencies report to the Secretary
periodically such information as they acquire respecting maintenance and
operation of solar energy equipment for which assistance is provided
under paragraph (3);
(5) require that a life cycle cost analysis in accordance with part B
be done for any Federal building for which a proposal is submitted under
this section and the results of such analysis be included in such
proposal; and
(6) if solar energy equipment for which assistance is to be provided
under paragraph (3) is not the minimum life-cycle cost alternative,
require the Federal agency involved to submit a report to the Secretary
stating the amount by which the life-cycle cost of such equipment
exceeds the minimum life-cycle cost.
(b) Contents of proposals
Proposals under paragraph (1)(A) of subsection (a) of this section
shall include a list of the specific Federal buildings proposed to be
provided with solar energy equipment, the funds necessary for the
acquisition and installation of such equipment, the proposed
implementation schedule, maintenance costs, the estimated savings in
fossil fuels and electricity, the estimated payback time, and such other
information as may be required by the Secretary.
(c) Initial submission of proposals
Under the requirements established under subsection (a)(1)(A) of this
section, initial proposals for the installation of solar energy
equipment in Federal buildings selected under subsection (a)(1)(A) of
this section shall be submitted not later than 180 days after the date
of promulgation of the rule under subsection (a)(1) of this section.
(d) Program to disseminate information to Federal procurement and
loan officers
In order to more widely disseminate information about the program
under this part and under part B and the benefits of renewable energy
and energy efficiency technology, the Secretary shall establish a
program which includes site visits and technical briefings, to
disseminate such information to Federal procurement officers and Federal
loan officers. The Secretary shall utilize available funds for the
program under this subsection.
(Pub. L. 95-619, title V, 523, Nov. 9, 1978, 92 Stat. 3276; Pub.
L. 101-218, 8(a), Dec. 11, 1989, 103 Stat. 1868.)
1989 -- Subsec. (d). Pub. L. 101-218 added subsec. (d).
42 USC -- 8244. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There are authorized to be appropriated to the Secretary through
fiscal year ending September 30, 1980, to carry out the purposes of this
part not to exceed $100,000,000. Funds so appropriated may be
transferred by the Secretary to any Federal agency to the extent
necessary to carry out the purposes of section 8243(a)(3) of this title.
(Pub. L. 95-619, title V, 524, Nov. 9, 1978, 92 Stat. 3277.)
42 USC -- Part B -- Federal Energy Management
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8251. Findings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Congress finds that --
(1) the Federal Government is the largest single energy consumer in
the Nation;
(2) the cost of meeting the Federal Government's energy requirement
is substantial;
(3) there are significant opportunities in the Federal Government to
conserve and make more efficient use of energy through improved
operations and maintenance, the use of new energy efficient
technologies, and the application and achievement of energy efficient
design and construction;
(4) Federal energy conservation measures can be financed at little or
no cost to the Federal Government by using private investment capital
made available through contracts authorized by subchapter VII of this
chapter; and
(5) an increase in energy efficiency by the Federal Government would
benefit the Nation by reducing the cost of government, reducing national
dependence on foreign energy resources, and demonstrating the benefits
of greater energy efficiency to the Nation.
(Pub. L. 95-619, title V, 541, Nov. 9, 1978, 92 Stat. 3277; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3185.)
1988 -- Pub. L. 100-615 amended Congressional findings provisions
generally.
Each agency to develop and implement plan to meet energy management
goals of this chapter, see section 1 of Ex. Ord. No. 12759, Apr. 17,
1991, 56 F.R. 16257, set out as a note under section 6201 of this title.
42 USC -- 8252. Purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
It is the purpose of this part to promote the conservation and the
efficient use of energy by the Federal Government.
(Pub. L. 95-619, title V, 542, Nov. 9, 1978, 92 Stat. 3277; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3185.)
1988 -- Pub. L. 100-615 amended section generally, substituting
statement of purpose for policy statement declaring it to be United
States policy for Federal Government to have the opportunity and
responsibility, with participation of industry, to further develop,
demonstrate, and promote use of energy conservation, solar heating and
cooling, and other renewable energy sources in Federal buildings.
42 USC -- 8253. Energy management goals
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Energy performance goal for Federal buildings
(1) Subject to paragraph (2), each agency shall apply energy
conservation measures to, and shall improve the design for the
construction of, its Federal buildings so that the energy consumption
per gross square foot of its Federal buildings in use during the fiscal
year 1995 is at least 10 percent less than the energy consumption per
gross square foot of its Federal buildings in use during the fiscal year
1985.
(2) An agency may exclude from the requirements of paragraph (1) any
building, and the associated energy consumption and gross square
footage, in which energy intensive activities are carried out. Each
agency shall identify and list in each report made under section 8258(a)
of this title the buildings designated by it for such exclusion.
(b) Implementation steps
To achieve the goal established in subsection (a) of this section,
each agency shall --
(1) prepare or update, within 6 months after November 5, 1988, a plan
describing how the agency intends to meet such goal, including how it
will implement this part, designate personnel primarily responsible for
achieving such goal, and identify high priority projects;
(2) perform energy surveys of its Federal buildings to the extent
necessary;
(3) using such surveys, apply energy conservation measures in a
manner which will attain the goal established in subsection (a) of this
section in the most cost-effective manner practicable; and
(4) ensure that the operation and maintenance procedures applied
under this section are continued.
(Pub. L. 95-619, title V, 543, Nov. 9, 1978, 92 Stat. 3277; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3185.)
1988 -- Pub. L. 100-615 amended section generally, substituting
energy management goals statement for statement of purpose to promote
(1) use of commonly accepted methods to establish and compare life cycle
costs of operating Federal buildings, and life cycle fuel and energy
requirements of such buildings, with and without special features for
energy conservation and (2) use of solar heating and cooling and other
renewable energy sources in Federal buildings.
Section 3 of Pub. L. 100-615 provided that:
''(a) In General. -- The Secretary of Energy shall, using funds
appropriated to carry out this section, carry out an energy survey, as
defined in section 549(5) of the National Energy Conservation Policy Act
(section 8259(5) of this title), for the purposes of --
''(1) determining the maximum potential cost effective energy savings
that may be achieved in a representative sample of buildings owned or
leased by the Federal Government in different areas of the country; and
''(2) making recommendations for cost effective energy efficiency and
renewable energy improvements in those buildings and in other similar
Federal buildings.
''(b) Implementation. -- (1) The Secretary shall transmit to the
Congress, within 180 days after the date on which funds are appropriated
to carry out this section, a plan for implementing this section.
''(2) The Secretary shall designate buildings to be surveyed in the
project so as to obtain a sample of buildings of the types and in the
climates that is representative of the buildings owned or leased by
Federal agencies in the United States that consume the major portion of
the energy consumed in Federal buildings.
''(3) For purposes of this section, an improvement shall be
considered cost effective if the cost of the energy saved or displaced
by the improvement exceeds the cost of the improvement over the
remaining life of a Federal building or the remaining term of a lease of
a building leased by the Federal Government as determined by the life
cycle costing methodology developed under section 544 of the National
Energy Conservation Policy Act (section 8254 of this title).
''(c) Personnel. -- (1) In carrying out this section, the Secretary
shall utilize personnel who are --
''(A) employees of the Department of Energy; or
''(B) selected by the agencies utilizing the buildings which are
being surveyed under this section.
''(2) Such personnel shall be detailed for the purpose of carrying
out this section without any reduction of salary or benefits.
''(d) Report. -- As soon as practicable after the completion of the
project carried out under this section, the Secretary shall transmit a
report of the findings and conclusions of the project to the Congress
and to the agencies who own the buildings involved in such project.
''(e) Authorization of Appropriations. -- There is authorized to be
appropriated $250,000 to carry out this section.''
42 USC -- 8254. Establishment and use of life cycle cost methods and
procedures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment of life cycle cost methods and procedures
The Secretary, in consultation with the Director of the Office of
Management and Budget, the Secretary of Defense, the Director of the
National Institute of Standards and Technology, and the Administrator of
the General Services Administration, shall --
(1) establish practical and effective present value methods for
estimating and comparing life cycle costs for Federal buildings, using
the sum of all capital and operating expenses associated with the energy
system of the building involved over the expected life of such system or
during a period of 25 years, whichever is shorter, and using average
fuel costs and a discount rate determined by the Secretary; and
(2) develop and prescribe the procedures to be followed in applying
and implementing the methods so established.
(b) Use of life cycle cost methods and procedures
(1) The design of new Federal buildings, and the application of
energy conservation measures to existing Federal buildings, shall be
made using life cycle cost methods and procedures established under
subsection (a) of this section.
(2) In leasing buildings for its own use or that of another agency,
each agency shall give appropriate preference to buildings which
minimize life cycle costs.
(c) Use in non-Federal structures
The Secretary shall make available information to the public on the
use of life cycle cost methods in the construction of buildings,
structures, and facilities in all segments of the economy.
(Pub. L. 95-619, title V, 544, Nov. 9, 1978, 92 Stat. 3277; Pub.
L. 100-418, title V, 5115(c), Aug. 23, 1988, 102 Stat. 1433; Pub. L.
100-615, 2(a), Nov. 5, 1988, 102 Stat. 3186.)
1988 -- Pub. L. 100-615 amended section generally, substituting
provisions relating to establishment and use of life cycle cost methods
and procedures for provisions defining terms (1) Secretary, (2) life
cycle cost, (3) preliminary energy audit, (4) energy survey, (5) Federal
building, (6) construction, and (7) energy performance target.
Reference to National Bureau of Standards deemed to refer to National
Institute of Standards and Technology pursuant to section 5115(c) of
Pub. L. 100-418, set out as a Change of Name note under section 271 of
Title 15, Commerce and Trade.
42 USC -- 8255. Budget treatment for energy conservation measures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Each agency, in support of the President's annual budget request to
the Congress, shall specifically set forth and identify funds requested
for energy conservation measures.
(Pub. L. 95-619, title V, 545, Nov. 9, 1978, 92 Stat. 3278; Pub.
L. 96-294, title IV, 405, June 30, 1980, 94 Stat. 716; Pub. L.
99-509, title III, 3301, Oct. 21, 1986, 100 Stat. 1890; Pub. L.
100-615, 2(a), Nov. 5, 1988, 102 Stat. 3186.)
1988 -- Pub. L. 100-615 amended section generally, substituting
provision relating to budget treatment for energy conservation measures
for provisions relating to establishment and use of life cycle cost
methods, use of life cycle costs, and use in non-Federal structures.
1986 -- Subsec. (a)(2). Pub. L. 99-509 substituted ''average'' for
''marginal''.
1980 -- Subsec. (a)(1). Pub. L. 96-294, which directed amendment of
par. (1) by inserting provisions setting forth criteria for
establishing life-cycle costs for Federal buildings before the period at
end, was executed to par. (2) as the probable intent of Congress
because par. (1) does not contain a period.
42 USC -- 8256. Incentives for agencies
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
Each agency shall establish a program of incentives for conserving,
and otherwise making more efficient use of, energy as a result of
entering into contracts under subchapter VII of this chapter.
(b) Implementation
The head of each agency shall, no later than 120 days after November
5, 1988, implement procedures for entering into such contracts and for
identifying, verifying, and utilizing, on a fiscal year basis, the cost
savings resulting from such contracts.
(c) Use of savings
The portion of the funds appropriated to an agency for energy
expenses for a fiscal year that is equal to the amount of cost savings
realized by such agency for such year from contracts entered into under
subchapter VII of this chapter shall remain available for obligation,
without further appropriation, to undertake additional energy
conservation measures.
(Pub. L. 95-619, title V, 546, Nov. 9, 1978, 92 Stat. 3278; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3187.)
1988 -- Pub. L. 100-615 amended section generally, substituting
statement of incentives for agencies for provisions relating to energy
performance targets for Federal buildings.
42 USC -- 8257. Interagency Energy Management Task Force
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) In general
To assist the interagency committee organized under section 7266 of
this title to coordinate the activities of the Federal Government in
promoting energy conservation and the efficient use of energy and in
informing non-Federal entities of the Federal experience in energy
conservation, the Secretary shall establish an Interagency Energy
Management Task Force (hereafter in this section referred to as the
''Task Force'').
(b) Members
The Task Force shall be composed of the chief energy managers of
agencies represented on the interagency committee organized under
section 7266 of this title.
(c) Duties
The Task Force shall meet when the Secretary requests, but not less
often than twice a year, to --
(1) assess the progress of the various agencies in achieving energy
savings;
(2) collect and disseminate information to agencies, States, local
governments, and the public on effective survey techniques, innovative
approaches to the efficient use of energy, incentive programs developed
under section 8256 of this title, innovative contracting methods
developed under subchapter VII of this chapter, the use of cogeneration
facilities and renewable resources, and other technologies that promote
the conservation and efficient use of energy;
(3) coordinate energy surveys conducted by the agencies;
(4) develop options for use in conserving energy;
(5) report to the committee organized under section 7266 of this
title; and
(6) review, from time to time as may be necessary, the regulations
relating to building temperature settings to determine whether changes
in such regulations would be appropriate to assist in meeting the goals
specified in section 8253 of this title.
(Pub. L. 95-619, title V, 547, Nov. 9, 1978, 92 Stat. 3279; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3187.)
1988 -- Pub. L. 100-615 amended section generally, substituting
provisions relating to creation of an Interagency Energy Management Task
Force for provisions relating to energy audits and retrofitting of
existing Federal buildings.
42 USC -- 8258. Reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Reports to Secretary
Each agency shall transmit a report to the Secretary, at times
specified by the Secretary but at least annually, with complete
information on its activities under this part, including information on
--
(1) the agency's progress in achieving the goals established by
section 8253 of this title; and
(2) the procedures being used by the agency pursuant to section
8256(b) of this title, the number of contracts entered into by such
agency under subchapter VII of this chapter, the energy and cost savings
that have resulted from such contracts, the use of such cost savings
under section 8256(c) of this title, and any problem encountered in
entering into such contracts and otherwise implementing section 8256 of
this title.
(b) Reports to Congress
The Secretary shall report annually, with respect to each fiscal year
beginning after November 5, 1988, to the Congress --
(1) on all activities carried out under this part and on the progress
made toward achievement of the objectives of this part, including a copy
of the list of the exclusions made under section 8253(a)(2) of this
title;
(2) the number of contracts entered into by all agencies under
subchapter VII of this chapter, the difficulties (if any) encountered in
attempting to enter into such contracts, and proposed solutions to those
difficulties; and
(3) the extent and nature of interagency exchange of information
concerning the conservation and efficient utilization of energy.
(Pub. L. 95-619, title V, 548, Nov. 9, 1978, 92 Stat. 3279; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3187.)
1988 -- Pub. L. 100-615 amended section generally, substituting
provisions relating to reports to Secretary and Congress for former
requirement that in leasing Federal buildings for its own use or that of
another Federal agency, each Federal agency should give appropriate
preference to buildings which used solar heating and cooling equipment
or other renewable energy sources or which otherwise minimized life
cycle costs.
42 USC -- 8259. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purposes of this part --
(1) the term ''agency'' has the meaning given it in section 551(1) of
title 5;
(2) the term ''construction'' means new construction or substantial
rehabilitation of existing structures;
(3) the term ''cogeneration facilities'' has the same meaning given
such term in section 796(18)(A) of title 16;
(4) the term ''energy conservation measures'' means measures that are
applied to a Federal building that improve energy efficiency and are
life cycle cost effective and that involve energy conservation,
cogeneration facilities, renewable energy sources, improvements in
operations and maintenance efficiencies, or retrofit activities;
(5) the term ''energy survey'' means a procedure used to determine
energy and cost savings likely to result from the use of appropriate
energy related maintenance and operating procedures and modifications,
including the purchase and installation of particular energy-related
equipment and the use of renewable energy sources;
(6) the term ''Federal building'' means any building, structure, or
facility, or part thereof, including the associated energy consuming
support systems, which is constructed, renovated, leased, or purchased
in whole or in part for use by the Federal Government and which consumes
energy; such term also means a collection of such buildings,
structures, or facilities and the energy consuming support systems for
such collection;
(7) the term ''life cycle cost'' means the total costs of owning,
operating, and maintaining a building over its useful life (including
such costs as fuel, energy, labor, and replacement components)
determined on the basis of a systematic evaluation and comparison of
alternative building systems, except that in the case of leased
buildings, the life cycle costs shall be calculated over the effective
remaining term of the lease;
(8) the term ''renewable energy sources'' includes, but is not
limited to, sources such as agriculture and urban waste, goethermal /1/
energy, solar energy, and wind energy; and
(9) the term ''Secretary'' means the Secretary of Energy.
(Pub. L. 95-619, title V, 549, Nov. 9, 1978, 92 Stat. 3280; Pub.
L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3188.)
1988 -- Pub. L. 100-615 amended section generally, substituting
provisions relating to definitions for Federal energy management for
former provision relating to budget treatment of energy conserving
improvements by Federal agencies.
/1/ So in original. Probably should be ''geothermal''.
42 USC -- 8260, 8261. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8260 and 8261 were omitted in the general revision of this
part by Pub. L 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3185.
Section 8260, Pub. L. 95-619, title V, 550, Nov. 9, 1978, 92 Stat.
3280, required each Federal agency to periodically furnish Secretary
with full and complete information on its activities under this part,
and required Secretary to annually submit to the Congress a
comprehensive report on all activities under this part and on the
progress made toward achievement of objectives of this part.
Section 8261, Pub. L. 95-619, title V, 551, Nov. 9, 1978, 92 Stat.
3280, authorized to be appropriated to Secretary not to exceed
$2,000,000 for fiscal year ending September 30, 1979, to enable him to
perform analytical and administrative functions under this part.
42 USC -- Part C -- Federal Photovoltaic Utilization
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8271. ''Federal facility'' and ''Secretary'' defined
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this part --
(1) The term ''Federal facility'' means any building, structure, or
fixture or part thereof which is owned by the United States or any
Federal agency or which is held by the United States or any Federal
agency under a lease-acquisition agreement under which the United States
or a Federal agency will receive fee simple title under the terms of
such agreement without further negotiation. Such term also applies to
facilities related to programs administered by Federal agencies.
(2) The term ''Secretary'' means the Secretary of Energy.
(Pub. L. 95-619, title V, 562, Nov. 9, 1978, 92 Stat. 3280; Pub.
L. 96-294, title IV, 407(1), June 30, 1980, 94 Stat. 717.)
1980 -- Par. (1). Pub. L. 96-294 inserted applicability to
facilities related to programs administered by Federal agencies.
For short title of this part as the ''Federal Photovoltaic
Utilization Act'', see section 561 of Pub. L. 95-619, set out as a note
under section 8201 of this title.
42 USC -- 8272. Photovoltaic energy program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There is hereby established a photovoltaic energy commercialization
program for the accelerated procurement and installation of photovoltaic
solar electric systems for electric production in Federal facilities.
(Pub. L. 95-619, title V, 563, Nov. 9, 1978, 92 Stat. 3280.)
42 USC -- 8273. Purpose of program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The purpose of the program established by section 8272 of this title
is to --
(1) accelerate the growth of a commercially viable and competitive
industry to make photovoltaic solar electric systems available to the
general public as an option in order to reduce national consumption of
fossil fuel;
(2) reduce fossil fuel costs to the Federal Government;
(3) stimulate the general use within the Federal Government of
methods for the minimization of life cycle costs; and
(4) develop performance data on the program established by section
8272 of this title.
(Pub. L. 95-619, title V, 564, Nov. 9, 1978, 92 Stat. 3280.)
42 USC -- 8274. Acquisition of systems
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The program established by section 8272 of this title shall provide
for the acquisition of photovoltaic solar electric systems and
associated storage capability by the Secretary for their use by Federal
agencies, and for the acquisition of such systems and associated
capability by Federal agencies for their own use in cases where the
authority to make such acquisition has been delegated to the agency
involved by the Secretary. The acquisition of photovoltaic solar
electric systems shall be at an annual level substantial enough to allow
use of low-cost production techniques by suppliers of such systems. The
Secretary (or other Federal agency acting under delegation from the
Secretary) is authorized to make such acquisitions through the use of
multiyear contracts. Authority under this part to enter into
acquisition contracts shall be only to the extent as may be provided in
advance in appropriation Acts.
(Pub. L. 95-619, title V, 565, Nov. 9, 1978, 92 Stat. 3281; Pub.
L. 96-294, title IV, 407(2)(A), (B), June 30, 1980, 94 Stat. 717.)
1980 -- Pub. L. 96-294 inserted provisions relating to acquisition
of systems and associated capability by Federal agencies and inserted
''(or other Federal agency acting under delegation from the
Secretary)''.
42 USC -- 8275. Administration
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall administer the program established under section
8272 of this title and shall --
(1) consult with the Secretary of Defense to insure that the
installation and purchase of photovoltaic solar electric systems
pursuant to this part shall not interfere with defense-related
activities;
(2) prescribe such requirements as may be appropriate to monitor and
assess the performance and operation of photovoltaic electric systems
installed pursuant to this part; and
(3) report annually to the Congress on the status of the program.
Notwithstanding any other provision of law, the Secretary shall not
be subject to the requirements of section 553 of title 5, in the
performance of his functions under this part.
(Pub. L. 95-619, title V, 566, Nov. 9, 1978, 92 Stat. 3281; Pub.
L. 96-294, title IV, 407(3), (4), June 30, 1980, 94 Stat. 717, 718.)
1980 -- Pub. L. 96-294 inserted provisions relating to
inapplicability of section 553 of title 5 and substituted
''requirements'' for ''rules and regulations'' in par. (2).
42 USC -- 8276. System evaluation and purchase program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Program
The Secretary shall establish, within 60 days after November 9, 1978,
a photovoltaic systems evaluation and purchase program to provide such
systems as are required by the Federal agencies to carry out this part.
In acquiring photovoltaic solar electric systems under this part, the
Secretary (or other Federal agency acting under delegation from the
Secretary) shall insure that such systems reflect to the maximum extent
practicable the most advanced and reliable technologies and shall
schedule purchases in a manner which will stimulate the early
development of a permanent low-cost private photovoltaic production
capability in the United States, and to stimulate the private sector
market for photovoltaic power systems. The Secretary and other Federal
agencies acting under delegation from the Secretary shall, subject to
the availability of appropriated funds, procure not more than 30
megawatts of photovoltaic solar electric systems during fiscal years
ending September 30, 1979, September 30, 1980, and September 30, 1981.
(b) Other procurement
Nothing in this part shall preclude any Federal agency from directly
procuring a photovoltaic solar electric system (in lieu of obtaining one
under the program under subsection (a) of this section), except that any
such Federal agency shall consult with the Secretary before procuring
such a system.
(Pub. L. 95-619, title V, 567, Nov. 9, 1978, 92 Stat. 3281; Pub.
L. 96-294, title IV, 407(2)(C), (D), June 30, 1980, 94 Stat. 717.)
1980 -- Subsec. (a). Pub. L. 96-294 inserted provisions relating to
Federal agencies acting under delegations from the Secretary.
42 USC -- 8277. Advisory committee
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment
There is hereby established an advisory committee to assist the
Secretary in the establishment and conduct of the programs established
under this part.
(b) Membership
Such committee shall be composed of the Secretary of Defense, the
Secretary of Housing and Urban Development, the Administrator of the
National Aeronautics and Space Administration, the Administrator of the
General Services Administration, the Secretary of Transportation, the
Administrator of the Small Business Administration, the chairman of the
Federal Trade Commission, the Postmaster General, and such other persons
as the Secretary deems necessary. The Secretary shall appoint such
other nongovernmental persons to the extent necessary to assure that the
membership of the committee will be fairly balanced in terms of the
point of view represented and the functions to be performed by the
committee.
(c) Termination
The advisory committee shall terminate October 1, 1981.
(Pub. L. 95-619, title V, 568, Nov. 9, 1978, 92 Stat. 3281.)
42 USC -- 8278. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purposes of this part, there is authorized to be appropriated
to the Secretary not to exceed $98,000,000 for the period beginning
October 1, 1978, and ending September 30, 1981.
(Pub. L. 95-619, title V, 569, Nov. 9, 1978, 92 Stat. 3282.)
42 USC -- SUBCHAPTER IV -- ENERGY CONSERVATION FOR COMMERCIAL BUILDINGS
AND MULTIFAMILY DWELLINGS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- General Provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8281 to 8281b. Repealed. Pub. L. 99-412, title II, 201(a),
Aug. 28, 1986, 100 Stat. 943
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8281, Pub. L. 95-619, title VII, 710, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 752, provided that
definitions in section 8211 of this title apply to this subchapter and
defined additional terms.
Section 8281a, Pub. L. 95-619, title VII, 711, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 754, provided that this
subchapter apply to any public utility for which coverage is provided
under section 8212 of this title.
Section 8281b, Pub. L. 95-619, title VII, 712, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 754, related to rules of
the Secretary for submission and approval of plans.
Pub. L. 99-412, title II, 202, Aug. 28, 1986, 100 Stat. 943,
provided that: ''The Secretary of Energy shall, using funds
appropriated for energy conservation activities of the Department of
Energy, carry out demonstration projects by sharing the cost of the
construction and development by nongovernmental entities of facilities
which demonstrate innovative technologies for utility applications that
increase energy efficiency in commercial buildings.''
42 USC -- Part B -- Energy Conservation Plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8282 to 8282b. Repealed. Pub. L. 99-412, title II, 201(a),
Aug. 28, 1986, 100 Stat. 943
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8282, Pub. L. 95-619, title VII, 721, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 754, related to
procedures for submission and approval of State energy conservation
plans for commercial buildings and multifamily dwellings.
Section 8282a, Pub. L. 95-619, title VII, 722, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 755, related to
requirements for State plans for regulated utilities.
Section 8282b, Pub. L. 95-619, title VII, 723, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 756, related to plan
requirements for nonregulated utilities and building heating suppliers.
Pub. L. 99-412, title II, 201(c), Aug. 28, 1986, 100 Stat. 943,
provided that: ''Notwithstanding subsection (a) (repealing this
subchapter), any State energy conservation plan for commercial buildings
and multifamily dwellings approved under section 721 of the National
Energy Conservation Policy Act (42 U.S.C. 8282) before August 1, 1984,
may, with respect to regulated utilities, continue in effect until
January 1, 1990.''
42 USC -- Part C -- Utility Programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8283, 8283a. Repealed. Pub. L. 99-412, title II, 201(a),
Aug. 28, 1986, 100 Stat. 943
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8283, Pub. L. 95-619, title VII, 731, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 756, related to general
requirements for utility programs and requirements concerning accounting
and payment of costs.
Section 8283a, Pub. L. 95-619, title VII, 732, as added Pub. L.
96-294, title V, 565, June 30, 1980, 94 Stat. 757, related to
requirements for building heating supplier programs and waiver of such
requirements.
42 USC -- Part D -- Federal Implementation
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8284. Repealed. Pub. L. 99-412, title II, 201(a), Aug. 28,
1986, 100 Stat. 943
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-619, title VII, 741, as added Pub. L. 96-294,
title V, 565, June 30, 1980, 94 Stat. 757, related to Federal standby
authority to promulgate plans.
42 USC -- SUBCHAPTER V -- ENERGY AUDITOR TRAINING AND CERTIFICATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
This subchapter was enacted as part of the Energy Security Act, and
not as part of the National Energy Conservation Policy Act which
comprises this chapter.
42 USC -- 8285. Purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
It is the purpose of this subchapter to encourage the training and
certification of individuals to conduct energy audits for residential
and commercial buildings in order to serve the various private and
public needs of the Nation for energy audits.
(Pub. L. 96-294, title V, 581, June 30, 1980, 94 Stat. 760.)
42 USC -- 8285a. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purposes of this subchapter --
(1) the term ''Governor'' means the chief executive officer of each
State, including the Mayor of the District of Columbia;
(2) the term ''State'' means any of the several States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, and the Northern Mariana Islands;
(3) the term ''energy audit'' means an inspection as described in
section 8216(b)(1)(A) /1/ of this title, or an energy audit as defined
in section 8281(b)(7) /1/ of this title, which in addition may provide
information on the utilization of renewable resources and may make
energy-related improvements in the building; and
(4) the term ''Secretary'' means the Secretary of Energy.
(Pub. L. 96-294, title V, 582, June 30, 1980, 94 Stat. 761.)
Section 8216 of this title, referred to in par. (3), was omitted
from the Code pursuant to section 8229 of this title, which terminated
authority under that section June 30, 1989.
Section 8281 of this title, referred to in par. (3), was repealed by
Pub. L. 99-412, title II, 201(a), Aug. 28, 1986, 100 Stat. 943.
/1/ See References in Text note below.
42 USC -- 8285b. Grants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Secretary may make grants to any Governor of a State for the
training and certification of individuals to conduct energy audits.
(b) Before making a grant under subsection (a) of this section to a
Governor, the Secretary must receive from the Governor an application
containing --
(A) any information which the Secretary deems is necessary to carry
out this subchapter; and
(B) an assurance that the grant will supplement and not supplant
other funds available for such training and certification and will be
used to increase the total amount of funds available for such training
and certification.
(c)(1) Before making any grant under subsection (a) of this section
the Secretary shall establish minimum standards for the training and
certification of individuals to conduct energy audits.
(2) The Secretary shall require each Governor receiving any grant
under this subchapter to agree to meet the standards established
pursuant to paragraph (1) in any training and certification conducted
using funds provided under this subchapter.
(Pub. L. 96-294, title V, 583, June 30, 1980, 94 Stat. 761.)
42 USC -- 8285c. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) To carry out this subchapter there is authorized to be
appropriated the sum of $10,000,000 for the fiscal year ending on
September 30, 1981, and the sum of $15,000,000 for the fiscal year
ending on September 30, 1982.
(b) Any funds appropriated under the authorization contained in this
section shall remain available until expended.
(Pub. L. 96-294, title V, 584, June 30, 1980, 94 Stat. 761.)
42 USC -- SUBCHAPTER VI -- COORDINATION OF FEDERAL ENERGY CONSERVATION
FACTORS AND DATA
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
This subchapter was enacted as part of the Energy Security Act, and
not as part of the National Energy Conservation Policy Act which
comprises this chapter.
42 USC -- 8286. Consensus on factors and data for energy conservation
standards
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary of Energy shall assure that within 6 months after June
30, 1980, the Secretary of Energy, the Secretary of Housing and Urban
Development, the Secretary of Agriculture, the Secretary of Health and
Human Services, the Secretary of Defense, the Administrator of the
General Services Administration, and the head of any other agency
responsible for developing energy conservation standards for new or
existing residential, commercial, or agricultural buildings shall reach
a consensus regarding factors and data used to develop such standards.
This consensus shall apply to, but not be limited to --
(1) fuel price projections;
(2) discount rates;
(3) inflation rates;
(4) climatic conditions and zones; and
(5) the cost and energy saving characteristics of construction
materials.
(Pub. L. 96-294, title V, 595, June 30, 1980, 94 Stat. 762.)
42 USC -- 8286a. Use of factors and data
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Factors and data consented to pursuant to section 8286 of this title
may be revised and agreed to by a consensus of the heads of the various
Federal agencies involved. Such factors and data shall be used by all
Federal agencies in establishing and revising various energy
conservation standards used by such agencies, except that other factors
and data may be used with respect to the standards applicable to any
program if --
(1) the other factors and data are approved by the Secretary of
Energy solely on the basis that such other factors and data are critical
to meet the unique needs of the program concerned;
(2) using the consented to factors and data would cause a violation
of an express provision of law; or
(3) statutory requirements or responsibilities require a modification
of the consented to factors and data.
(Pub. L. 96-294, title V, 596, June 30, 1980, 94 Stat. 762.)
42 USC -- 8286b. Report
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The President shall report to the Congress on January 1, 1981, and
annually thereafter, with respect to --
(1) the activities which have been carried out under this subchapter;
and
(2) other efforts which are being carried out to coordinate the
various Federal energy conservation programs.
(Pub. L. 96-294, title V, 597, June 30, 1980, 94 Stat. 762.)
42 USC -- SUBCHAPTER VII -- SHARED ENERGY SAVINGS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8287. Authority to enter into contracts
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The head of a Federal agency may enter into contracts under this
subchapter solely for the purpose of achieving energy savings and
benefits ancillary to that purpose. Each such contract may,
notwithstanding any other provision of law, be for a period not to
exceed 25 years. Such contract shall provide that the contractor shall
incur costs of implementing energy savings measures, including at least
the costs (if any) incurred in making energy audits, acquiring and
installing equipment, and training personnel, in exchange for a share of
any energy savings directly resulting from implementation of such
measures during the term of the contract.
(Pub. L. 95-619, title VIII, 801, as added Pub. L. 99-272, title
VII, 7201(a), Apr. 7, 1986, 100 Stat. 142.)
Pub. L. 100-456, div. A, title VII, 736, Sept. 29, 1988, 102 Stat.
2006, as amended by Pub. L. 101-189, div. A, title III, 331, Nov.
29, 1989, 103 Stat. 1417, provided that:
''(a) Energy Conservation Incentive. -- In order to provide
additional incentive for the Secretary of a military department to enter
into contracts under title VIII of the National Energy Conservation
Policy Act (42 U.S.C. 8287 et seq.), the Secretary may use the energy
cost savings realized by the United States during the first five years
under any such contract in the manner provided in subsection (b). The
amount of savings available for use under subsection (b) shall be
determined as provided in subsection (c) and shall remain available for
obligation until expended.
''(b) Authorized Uses of Savings. -- The energy cost savings realized
by the United States in each of the first five years under a contract
may be used as follows:
''(1) One-half of the amount of such savings may be used for the
acquisition of energy conserving measures for military installations,
and such measures may be in addition to any such energy conserving
measures acquired for military installations under contracts entered
into under title VIII of the National Energy Conservation Policy Act.
''(2) One-half of the amount of such savings may be used for any
morale, welfare, or recreation facility or service that is normally
provided with appropriated funds, or for any minor military construction
project (as defined in section 2805(a) of title 10, United States Code),
that will enhance the quality of life of members of the Armed Forces at
the military installation at which the energy cost savings were
realized.
''(c) Determination of Amount of Savings. -- Not more than 90 days
after the end of each of the first five years during which energy
savings measures have been in operation under a contract entered into by
the Secretary of a military department under title VIII of the National
Energy Conservation Policy Act, the Secretary of the military department
concerned shall determine the amount of energy cost savings realized by
the United States under the terms of the contract during that year by
reason of the energy savings measures acquired and installed at that
installation pursuant to that contract.''
42 USC -- 8287a. Payment of costs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Any amount paid by a Federal agency pursuant to any contract entered
into under this subchapter may be paid only from funds appropriated or
otherwise made available to the agency for fiscal year 1986 or any
fiscal year thereafter for the payment of energy expenses (and related
operation and maintenance expenses).
(Pub. L. 95-619, title VIII, 802, as added Pub. L. 99-272, title
VII, 7201(a), Apr. 7, 1986, 100 Stat. 142.)
42 USC -- 8287b. Reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Each Federal agency shall periodically furnish the Secretary of
Energy with full and complete information on its activities under this
subchapter, and the Secretary shall include in the report submitted to
Congress under section 8260 /1/ of this title a description of the
progress made by each Federal agency in --
(1) including the authority provided by this subchapter in its
contracting practices; and
(2) achieving energy savings under contracts entered into under this
subchapter.
(Pub. L. 95-619, title VIII, 803, as added Pub. L. 99-272, title
VII, 7201(a), Apr. 7, 1986, 100 Stat. 142.)
Section 8260 of this title, referred to in text, was omitted in the
general revision of part B ( 8251 et seq.) of subchapter III of this
chapter by Pub. L. 100-615, 2(a), Nov. 5, 1988, 102 Stat. 3185.
/1/ See References in Text note below.
42 USC -- 8287c. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this subchapter --
(1) the term ''Federal agency'' means an agency defined in section
551(1) of title 5, and
(2) the term ''energy savings'' means a reduction in the cost of
energy, from a base cost established through a methodology set forth in
the contract, utilized in an existing federally owned building or
buildings or other federally owned facilities as a result of --
(A) the lease or purchase of operating equipment, improvements,
altered operation and maintenance, or technical services; or
(B) the increased efficient use of existing energy sources by
cogeneration or heat recovery, excluding any cogeneration process for
other than a federally owned building or buildings or other federally
owned facilities.
(Pub. L. 95-619, title VIII, 804, as added Pub. L. 99-272, title
VII, 7201(a), Apr. 7, 1986, 100 Stat. 143.)
42 USC -- CHAPTER 92 -- POWERPLANT AND INDUSTRIAL FUEL USE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8301. Findings; statement of purposes.
(a) Findings.
(b) Statement of purposes.
8302. Definitions.
(a) Generally.
(b) Special rules relating to definitions of natural gas and
alternate fuel.
8303. Territorial application.
8311. Coal capability of new electric powerplant; certification of
compliance.
(a) General prohibition.
(b) Capability to use coal or alternate fuel.
(c) Applicability to base load powerplants.
(d) Self-certification.
8312. Repealed.
8321. Temporary exemptions.
(a) General exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements.
(b) Temporary exemption based upon future use of synthetic fuels.
(c), (d) Repealed.
(e) Duration of temporary exemptions.
8322. Permanent exemptions.
(a) Permanent exemption due to lack of alternate fuel supply, site
limitations, environmental requirements, or adequate capital.
(b) Permanent exemption due to certain State or local requirements.
(c) Permanent exemption for cogeneration.
(d) Permanent exemption for certain mixtures containing natural gas
or petroleum.
(e) Permanent exemption for emergency purposes.
(f) Permanent exemption for powerplants necessary to maintain
reliability of service.
8323. General requirements for exemptions.
(a) Use of mixtures or fluidized bed combustion not feasible.
(b) State approval required for powerplant.
(c) No alternative power supply in the case of a powerplant.
8324. Terms and conditions; compliance plans.
(a) Terms and conditions generally.
(b) Compliance plans.
8341. Existing electric powerplants.
(a) Certification by powerplants of coal capability.
(b) Authority of Secretary to prohibit where coal or alternate fuel
capability exists.
(c) Authority of Secretary to prohibit excessive use in mixtures.
(d) Amendment of subsection (a) and (c) certifications.
8342. Repealed.
8343. Rules relating to case-by-case and category prohibitions.
(a) Case-by-case prohibitions.
(b) Prohibitions applicable to categories of facilities.
8351. Temporary exemptions.
(a) Temporary exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements.
(b) Temporary exemption based upon future use of synthetic fuels.
(c) Temporary exemption based upon use of innovative technologies.
(d) Temporary exemption for units to be retired.
(e) Temporary public interest exemption.
(f) Temporary exemption for peakload powerplants.
(g) Temporary exemption for powerplants where necessary to maintain
reliability of service.
(h) Duration of temporary exemptions.
8352. Permanent exemptions.
(a) Permanent exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements.
(b) Permanent exemption due to certain State or local requirements.
(c) Permanent exemption for cogeneration.
(d) Permanent exemption for certain fuel mixtures containing natural
gas or petroleum.
(e) Permanent exemption for emergency purposes.
(f) Permanent exemption for peakload powerplants.
(g) Permanent exemption for intermediate load powerplants.
(h) Permanent exemption for use of natural gas by certain powerplants
with capacities of less than 250 million Btu's per hour.
(i) Permanent exemption for use of LNG by certain powerplants.
8353. General requirements for exemptions.
(a) Use of mixtures or fluidized bed combustion not feasible.
(b) No alternative power supply in case of a powerplant.
8354. Terms and conditions; compliance plans.
(a) Terms and conditions generally.
(b) Compliance plans.
AUTHORITIES
8371, 8372. Repealed
8373. Conservation in Federal facilities, contracts, and financial
assistance programs.
(a) Federal facilities.
(b) Federal contracts and financial assistance.
(c) Annual report.
8374. Emergency authorities.
(a) Coal allocation authority.
(b) Emergency prohibition on use of natural gas or petroleum.
(c) Emergency stays.
(d) Duration of emergency orders.
(e) Delegation of authority prohibited.
(f) Publication and reports to Congress of orders.
8375. Repealed.
8391. Repealed.
8401. Assistance to areas impacted by increased coal or uranium
production.
(a) Designation of impacted areas.
(b) Planning grants.
(c) Land acquisition and development grants.
(d) General requirements regarding assistance.
(e) ''Coal or uranium development activities'' and ''site
development'' defined.
(f) Reports.
(g) Administration.
(h) Appropriations authorization.
(i) Protection from certain hazardous actions.
(j) Reorganization.
8401a. ''Local government'' defined.
8402. Loans to assist powerplant acquisitions of air pollution
control equipment.
(a) Authority to make loans.
(b) Limitations and conditions.
(c) Allocation and priorities.
(d) Definitions.
(e) Records.
(f) Default.
(g) Deposit of receipts.
(h) Authorization of appropriation.
8411. Administrative procedures.
(a) General rulemaking.
(b) Notices of rules and orders imposing prohibitions.
(c) Petitions for exemptions.
(d) Public comment on prohibitions and exemptions.
(e) Transcript.
(f) Environmental Protection Agency comment.
(g) Repealed.
(h) Coordination with other provisions of law.
8412. Judicial review.
(a) Publication and delay of prohibition or exemption to allow for
review.
(b) Publication of denial of exemption or permit.
(c) Judicial review.
8421. Information.
(a) Authority of Secretary.
(b) Authority of President and Federal Energy Regulatory Commission.
(c) Natural gas usage by electric utilities.
8422. Compliance report.
(a) Generally.
(b) Report on implementation of section 8484 Plan.
8431. Notice of violation; other general provisions.
(a) Notice of violation.
(b) Individual liability of corporate personnel.
(c) Repealed.
(d) Federal agencies.
8432. Criminal penalties.
8433. Civil penalties.
(a) General civil penalty.
(b) Civil penalty for operation in excess of exemption.
(c) Repealed.
(d) Assessment.
8434. Injunctions and other equitable relief.
8435. Citizens suits.
(a) General rule.
(b) Notice to Secretary or agency head.
(c) Authority of Secretary to intervene.
(d) Costs of litigation.
(e) Other remedies to remain available.
8441. Preservation of contractual interest.
(a) Right to transfer contractual interests.
(b) Determination of consideration.
(c) Restrictions on transfers unenforceable.
(d) Contractual obligations unaffected.
(e) Definitions.
(f) Coordination with Natural Gas Act.
(g) Volume limitation.
(h) Judicial review.
8451. National coal policy study.
(a) Study.
(b) Report.
(c) Authorization of appropriations.
8452. Repealed.
8453. Impact on employees.
(a) Evaluation.
(b) Investigation and hearings.
(c) Rule of construction.
8454. Study of compliance problem of small electric utility systems.
(a) Study.
(b) Authorization of appropriations.
8455. Emissions monitoring.
(a) Monitoring program.
(b) Appropriations authorizations.
8456. Socioeconomic impacts of increased coal production and other
energy development.
(a) Committee.
(b) Functions of committee.
(c) Report.
8457. Use of petroleum and natural gas in combustors.
8461. Authorization of appropriations.
8471. Effect on environmental requirements.
(a) Compliance with applicable environmental requirements.
(b) Local environmental requirements.
8472. Effect of orders under section 792 of title 15.
(a) Effect of construction orders.
(b) Effect of prohibition orders.
(c) Validity of orders.
8473. Environmental impact statements under section 4332 of this
title.
8481. Repealed.
8482. Annual report.
8483. Submission of reports.
8484. Electric utility conservation plan.
(a) Applicability.
(b) Submission and approval of plan.
(c) Contents of plan.
(d) Plan approval.
42 USC -- SUBCHAPTER I -- GENERAL PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8301. Findings; statement of purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Findings
The Congress finds that --
(1) the protection of public health and welfare, the preservation of
national security, and the regulation of interstate commerce require the
establishment of a program for the expended /1/ use, consistent with
applicable environmental requirements, of coal and other alternate fuels
as primary energy sources for existing and new electric powerplants;
and
(2) the purposes of this chapter are furthered in cases in which coal
or other alternate fuels are used by electric powerplants, consistent
with applicable environmental requirements, as primary energy sources in
lieu of natural gas or petroleum.
(b) Statement of purposes
The purpose /2/ of this chapter, which shall be carried out in a
manner consistent with applicable environmental requirements, are --
(1) to reduce the importation of petroleum and increase the Nation's
capability to use indigenous energy resources of the United States to
the extent such reduction and use further the goal of national energy
self-sufficiency and otherwise are in the best interests of the United
States;
(2) to encourage and foster the greater use of coal and other
alternate fuels, in lieu of natural gas and petroleum, as a primary
energy source;
(3) to the extent permitted by this chapter, to encourage the use of
synthetic gas derived from coal or other alternate fuels;
(4) to encourage the rehabilitation and upgrading of railroad service
and equipment necessary to transport coal to regions or States which can
use coal in greater quantities;
(5) to encourage the modernization or replacement of existing and new
electric powerplants which utilize natural gas or petroleum as a primary
energy source and which cannot utilize coal or other alternate fuels
where to do so furthers the conservation of natural gas and petroleum;
(6) to require that existing and new electric powerplants which
utilize natural gas, petroleum, or coal or other alternate fuels
pursuant to this chapter comply with applicable environmental
requirements;
(7) to insure that all Federal agencies utilize their authorities
fully in furtherance of the purposes of this chapter by carrying out
programs designed to prohibit or discourage the use of natural gas and
petroleum as a primary energy source and by taking such actions as lie
within their authorities to maximize the efficient use of energy and
conserve natural gas and petroleum in programs funded or carried out by
such agencies;
(8) to insure that adequate supplies of natural gas are available for
essential agricultural uses (including crop drying, seed drying,
irrigation, fertilizer production, and production of essential
fertilizer ingredients for such uses);
(9) to reduce the vulnerability of the United States to energy supply
interruptions; and
(10) to regulate interstate commerce.
(Pub. L. 95-620, title I, 102, Nov. 9, 1978, 92 Stat. 3291; Pub.
L. 100-42, 1(c)(1), May 21, 1987, 101 Stat. 310.)
This chapter, referred to in text, was in the original ''this Act'',
meaning Pub. L. 95-620, Nov. 9, 1978, 92 Stat. 3289, as amended,
known as the Powerplant and Industrial Fuel Use Act of 1978, which
enacted this chapter, amended sections 6211 and 7193 of this title,
section 796 of Title 15, Commerce and Trade, section 1202 of Title 19,
Customs Duties, sections 821, 822, and 825 of Title 45, Railroads, and
section 26b of Title 49, Appendix, Transportation, and enacted
provisions set out as notes under this section and section 822 of Title
45. For complete classification of this Act to the Code, see Short
Title note set out below and Tables.
1987 -- Subsec. (a)(1), (2). Pub. L. 100-42, 1(c)(1)(A), struck
out ''and major fuel-burning installations'' after ''electric
powerplants''.
Subsec. (b)(2). Pub. L. 100-42, 1(c)(1)(B), redesignated par. (3)
as (2) and struck out former par. (2) relating to conservation of
natural gas and petroleum for uses for which there are no alternatives.
Subsec. (b)(3), (4). Pub. L. 100-42, 1(c)(1)(B), redesignated pars.
(4) and (5) as (3) and (4), respectively. Former par. (3)
redesignated (2).
Subsec. (b)(5). Pub. L. 100-42, 1(c)(1), redesignated par. (7) as
(5) and struck out ''and major fuel-burning installations'' after
''electric powerplants''. Former par. (5) redesignated (4).
Subsec. (b)(6). Pub. L. 100-42, 1(c)(1), redesignated par. (8) as
(6) and struck out ''and major fuel-burning installations'' after
''electric powerplants'', and struck out former par. (6) which related
to prohibition or minimization of use of natural gas and petroleum as a
primary energy source.
Subsec. (b)(7) to (10). Pub. L. 100-42, 1(c)(1)(B), redesignated
former pars. (9) to (12) as (7) to (10), respectively. Former pars.
(7) and (8) redesignated (5) and (6), respectively.
Section 901 of Pub. L. 95-620 provided that: ''Unless otherwise
provided in this Act (see Short Title note set out below) the provisions
of this Act shall take effect 180 days after the date of the enactment
of this Act (Nov. 9, 1978), except that the Secretary may issue rules
pursuant to such provisions at any time after such date of enactment,
which rules may take effect no earlier than 180 days after such date of
enactment.''
Section 101(a) of Pub. L. 95-620 provided that: ''This Act
(enacting this chapter, amending sections 6211 and 7193 of this title,
section 796 of Title 15, Commerce and Trade, section 1202 of Title 19,
Customs Duties, sections 821, 822 and 825 of Title 45, Railroads, and
section 26b of Title 49, Appendix, Transportation, and enacting
provisions set out as notes under this section and section 822 of Title
45) may be cited as the 'Powerplant and Industrial Fuel Use Act of
1978'.''
Section 902 of Pub. L. 95-620 provided that:
''(a) Exemptions in the Case of Certain Powerplants. -- In the case
of --
''(1) any electric powerplant which, as of April 20, 1977, has
received a final decision from the appropriate State agency authorizing
the construction of such powerplant, and
''(2) any electric powerplant (A) consisting of one or more combined
cycle units owned or operated by an electric utility which serves at
least 2,000,000 customers and (B) for which an application has been
filed for at least one year before the date of the enactment of this Act
(Nov. 9, 1978) with the appropriate State agency for authorization to
construct such powerplant,
the Secretary may receive, consider, and grant (or deny) any petition
for an exemption under title II or III (subchapters II and III of this
chapter) notwithstanding section 901 (section 901 of Pub. L. 95-620,
set out as a note above) or the fact that all rules related to such
petition have not been prescribed at the time.
''(b) Exemptions Under Section 211(d). -- The Secretary may receive,
consider, and grant (or deny) any petition for any exemption under
section 211(d) (section 8321(d) of this title) notwithstanding section
901 (section 901 of Pub. L. 95-620, set out as a note above), or the
fact that all rules related to such petition have not been prescribed at
the time.''
/1/ So in original. Probably should be ''expanded''.
/2/ So in original. Probably should be ''purposes''.
42 USC -- 8302. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Generally
Unless otherwise expressly provided, for the purposes of this chapter
--
(1) The term ''Secretary'' means the Secretary of Energy.
(2) The term ''person'' means any (A) individual, corporation,
company, partnership, association, firm, institution, society, trust,
joint venture, or joint stock company, (B) any State, the District of
Columbia, Puerto Rico, and any territory or possession of the United
States, or (C) any agency or instrumentality (including any
municipality) thereof.
(3)(A) Except as provided in subparagraph (B), the term ''natural
gas'' means any fuel consisting in whole or in part of --
(i) natural gas;
(ii) liquid petroleum gas;
(iii) synthetic gas derived from petroleum or natural gas liquids;
or
(iv) any mixture of natural gas and synthetic gas.
(B) The term ''natural gas'' does not include --
(i) natural gas which is commercially unmarketable (either by reason
of quality or quantity), as determined under rules prescribed by the
Secretary;
(ii) natural gas produced by the user from a well the maximum
efficient production rate of which is less than 250 million Btu's per
day;
(iii) natural gas to the extent the exclusion of such gas is provided
for in subsection (b) of this section; or
(iv) synthetic gas, derived from coal or other alternate fuel, the
heat content of which is less than 600 Btu's per cubic foot at 14.73
pounds per square inch (absolute) and 60 degrees Fahrenheit.
(4) The term ''petroleum'' means crude oil and products derived from
crude oil, other than --
(A) synthetic gas derived from crude oil;
(B) liquid petroleum gas;
(C) liquid, solid, or gaseous waste byproducts of refinery operations
which are commercially unmarketable, either by reason of quality or
quantity, as determined under rules prescribed by the Secretary; or
(D) petroleum coke or waste gases from industrial operations.
(5) The term ''coal'' means anthracite and bituminous coal, lignite,
and any fuel derivative thereof.
(6) The term ''alternate fuel'' means electricity or any fuel, other
than natural gas or petroleum, and includes --
(A) petroleum coke, shale oil, uranium, biomass, and municipal,
industrial, or agricultural wastes, wood, and renewable and geothermal
energy sources;
(B) liquid, solid, or gaseous waste byproducts of refinery or
industrial operations which are commercially unmarketable, either by
reason of quality or quantity, as determined under rules prescribed by
the Secretary; and
(C) waste gases from industrial operations.
(7)(A) The terms ''electric powerplant'' and ''powerplant'' mean any
stationary electric generating unit, consisting of a boiler, a gas
turbine, or a combined cycle unit, which produces electric power for
purposes of sale or exchange and --
(i) has the design capability of consuming any fuel (or mixture
thereof) at a fuel heat input rate of 100 million Btu's per hour or
greater; or
(ii) is in a combination of two or more electric generating units
which are located at the same site and which in the aggregate have a
design capability of consuming any fuel (or mixture thereof) at a fuel
heat input rate of 250 million Btu's per hour or greater.
(B) For purposes of subparagraph (A), the term ''electric generating
unit'' does not include --
(i) any electric generating unit subject to the licensing
jurisdiction of the Nuclear Regulatory Commission; and
(ii) any cogeneration facility, less than half of the annual electric
power generation of which is sold or exchanged for resale, as determined
by the Secretary.
(C) For purposes of clause (ii) of subparagraph (A), there shall be
excluded any unit which has a design capability to consume any fuel
(including any mixture thereof) that does not equal or exceed 100
million Btu's per hour and the exclusion of which for purposes of such
clause is determined by the Secretary, by rule, to be appropriate.
(8) The term ''new electric powerplant'' means --
(A) any electric powerplant for which construction or acquisition
began on a date on or after November 9, 1978; and
(B) any electric powerplant for which construction or acquisition
began on a date after April 20, 1977, and before November 9, 1978,
unless the Secretary finds the construction or acquisition of such
powerplant could not be canceled, rescheduled, or modified to comply
with the applicable requirements of this chapter without --
(i) adversely affecting electric system reliability (as determined by
the Secretary after consultation with the Federal Energy Regulatory
Commission and the appropriate State authority), or
(ii) imposing substantial financial penalty (as determined under
rules prescribed by the Secretary).
(9)(A) The term ''existing electric powerplant'' means any electric
powerplant other than a new electric powerplant.
(B) Any powerplant treated under this chapter as an existing electric
powerplant shall not be treated thereafter as a new electric powerplant
merely by reason of a transfer of ownership.
(10)(A) The terms ''major fuel-burning installation'' and
''installation'' means a stationary unit consisting of a boiler, gas
turbine unit, combined cycle unit, or internal combustion engine which
--
(i) has a design capability of consuming any fuel (or mixture
thereof) at a fuel heat input rate of 100 million Btu's per hour or
greater; or
(ii) is in a combination of two or more such units which are located
at the same site and which in the aggregate have a design capability of
consuming any fuel (or mixture thereof) at a fuel heat input rate of 250
million Btu's per hour or greater.
(B) The terms ''major fuel-burning installation'' and
''installation'' do not include --
(i) any electric powerplant; or
(ii) any pump or compressor used solely in connection with the
production, gathering, transmission, storage, or distribution of gases
or liquids, but only if there is certification to the Secretary of such
use (in accordance with rules prescribed by the Secretary).
(C) For purposes of clause (ii) of subparagraph (A), there shall be
excluded any unit which has a design capability to consume any fuel
(including any mixture thereof) that does not equal or exceed 100
million Btu's per hour and the exclusion of which for purposes of such
clause is determined by the Secretary, by rule to be appropriate.
(11) The term ''new major fuel-burning installation'' means --
(A) any major fuel-burning installation on which construction or
acquisition began on a date on or after November 9, 1978; and
(B) any major fuel-burning installation on which construction or
acquisition began on a date after April 20, 1977, and before November 9,
1978, unless the Secretary finds the construction or acquisition of such
installation could not be canceled, rescheduled, or modified to comply
with applicable requirements of this chapter without --
(i) incurring significant operational detriment of the unit (as
determined by the Secretary); or
(ii) imposing substantial financial penalty (as determined under
rules prescribed by the Secretary).
(12)(A) The term ''existing major fuel-burning installation'' means
any installation which is not a new major fuel-burning installation.
(B) Such term does not include a major fuel-burning installation for
the extraction of mineral resources located --
(i) on or above the Continental Shelf of the United States, or
(ii) on wetlands areas adjacent to the Continental Shelf of the
United States,
where coal storage is not practicable or would produce adverse
effects on environmental quality.
(C) Any installation treated as an existing major fuel-burning
installation shall not be treated thereafter as a new major fuel-burning
installation merely by reason of a transfer of ownership.
(13) The term ''construction or acquisition began'' means, when used
with reference to a certain date, that --
(A) construction in accordance with final drawings or equivalent
design documents (as defined by the Secretary, by rule) began on or
after that date; or
(B)(i) construction or acquisition had been contracted for on or
after that date, or (ii) if the construction or acquisition had been
contracted for before such date, such construction or acquisition could
be canceled, rescheduled, or modified to comply with the applicable
requirements of this chapter --
(I) without imposing substantial financial penalty, as determined
under rules prescribed by the Secretary; and
(II) in the case of a powerplant, without adversely affecting
electric system reliability (as determined by the Secretary after
consultation with the Federal Energy Regulatory Commission and the
appropriate State authority).
(14) The term ''construction'' means substantial onsite construction
or reconstruction, as defined by rule by the Secretary.
(15) The term ''primary energy source'' means the fuel or fuels used
by any existing or new electric powerplant, except it does not include,
as determined under rules prescribed by the Secretary --
(A) the minimum amounts of fuel required for unit ignition, startup,
testing, flame stabilization, and control uses, and
(B) the minimum amounts of fuel required to alleviate or prevent (i)
unanticipated equipment outages and (ii) emergencies directly affecting
the public health, safety, or welfare which would result from electric
power outages.
(16) The term ''site limitation'' means, when used with respect to
any powerplant, any specific physical limitation associated with a
particular site which relates to the use of coal or other alternate
fuels as a primary energy source for such powerplant, such as --
(A) inaccessibility to coal or other alternate fuels;
(B) lack of transportation facilities for coal or other alternate
fuels;
(C) lack of adequate land or facilities for the handling, use, and
storage of coal or other alternate fuels;
(D) lack of adequate land or facilities for the control or disposal
of wastes from such powerplant, including lack of pollution control
equipment or devices necessary to assure compliance with applicable
environmental requirements; and
(E) lack of an adequate and reliable supply of water, including water
for use in compliance with applicable environmental requirements.
(17) The term ''applicable environmental requirements'' includes --
(A) any standard, limitation, or other requirement established by or
pursuant to Federal or State law (including any final order of any
Federal or State court) applicable to emissions of environmental
pollutants (including air and water pollutants) or disposal of solid
waste residues resulting from the use of coal or other alternate fuels
or natural gas or petroleum as a primary energy source or from the
operation of pollution control equipment in connection with such use,
taking into account any variance of law granted or issued in accordance
with Federal law or in accordance with State law to the extent
consistent with Federal law; and
(B) any other standard, limitation, or other requirement established
by, or pursuant to, the Clean Air Act (42 U.S.C. 7401 et seq.), the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Solid
Waste Disposal Act (42 U.S.C. 6901 et seq.), or the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(18)(A) The term ''peakload powerplant'' means a powerplant the
electrical generation of which in kilowatt hours does not exceed, for
any 12-calendar-month period, such powerplant's design capacity
multiplied by 1,500 hours.
(B) The term ''intermediate load powerplant'' means a powerplant
(other than a peakload powerplant), the electrical generation of which
in kilowatt hours does not exceed, for any 12-calendar-month period,
such powerplant's design capacity multiplied by 3,500 hours.
(C) The term ''base load powerplant'' means a powerplant the
electrical generation of which in kilowatt hours exceeds, for any
12-calendar-month period, such powerplant's design capacity multiplied
by 3,500 hours.
(D) Not later than 90 days after November 9, 1978, the Federal Energy
Regulatory Commission shall prescribe rules under which a powerplant's
design capacity may be determined for purposes of this paragraph.
(19) the /1/ term ''cogeneration facility'' means an electric
powerplant which produces --
(A) electric power; and
(B) any other form of useful energy (such as steam, gas, or heat)
which is, or will be, used for industrial, commercial, or space heating
purposes.
(20) The term ''cost'', unless the context indicates otherwise, means
total costs (both operating and capital) incurred over the estimated
remaining useful life of an electric powerplant, discounted to present
value, as determined by the Secretary (in the case of powerplants, in
consultation with the State regulatory authorities). In the case of an
electric powerplant, such costs shall take into account any change
required in the use of existing electric powerplants in the relevant
dispatching system and other economic factors which are included in
planning for the production, transmission, and distribution of electric
power within such system.
(21) The term ''State regulatory authority'' means any State agency
which has ratemaking authority with respect to the sale of electricity
by any State regulated electric utility.
(22) The term ''air pollution control agency'' has the same meaning
as given such term by section 302(b) of the Clean Air Act (42 U.S.C.
7602(b)).
(23) The term ''electric utility'' means any person, including any
affiliate, or Federal agency which sells electric power.
(24) The term ''affiliate'', when used in relation to a person, means
another person which controls, is controlled by, or is under common
control with, such person.
(25) The term ''Federal agency'' means each authority of the
Government of the United States, whether or not it is within or subject
to review by another agency, but does not include --
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or possessions of the United
States; and
(D) the government of the District of Columbia.
(26) The term ''Btu'' means British thermal unit.
(27) the term ''Mcf'' means, when used in relation to natural gas,
1,000 cubic feet of natural gas.
(28) The term ''mixture'', when used in relation to fuels used in a
unit, means a mixture of such fuels or a combination of such fuels used
simultaneously or alternately in such unit.
(29) The term ''fluidized bed combustion'' means combustion of fuel
in connection with a bed of inert material, such as limestone or
dolomite, which is held in a fluid-like state by the means of air or
other gases being passed through such materials.
(b) Special rules relating to definitions of natural gas and
alternate fuel
(1) Subject to paragraph (2), natural gas which is to be used by a
powerplant shall for purposes of this chapter (other than this
subsection), be excluded from the definition of ''natural gas'' under
subsection (a)(3)(B)(iii) of this section and shall be included within
the definition of ''alternate fuel'' under subsection (a)(6) of this
section if the person proposing to use such natural gas certifies to the
Secretary (together with such supporting documents as the Secretary may
require) that --
(A) such person owns, or is entitled to receive, at the point of
manufacture, synthetic gas derived from coal or another alternate fuel;
(B) the Btu content of such synthetic gas is equal to, or greater
than, the Btu content of the natural gas to be covered by this
subsection by reason of such certification, plus the approximate Btu
content of any natural gas consumed or lost in transportation;
(C) such person delivers, or arranges for the delivery of, such
synthetic gas to a pipeline or pipelines which by transport or
displacement are capable of delivering such synthetic gas, mixed with
natural gas, to such person; and
(D) all necessary permits, licenses, or approvals from appropriate
Federal, State, and local agencies (including Indian tribes) have been
obtained for construction and operation of the facilities for the
manufacture of the synthetic gas involved.
(2) The application of paragraph (1) with respect to the use of
natural gas by any powerplant shall be conditioned on the person using
such natural gas submitting to the Secretary a report not later than one
year after certification is made under paragraph (1), and annually
thereafter, containing the following information:
(A) the source, amount, quality, and point of delivery to the
pipeline of the synthetic gas to which paragraph (1) applied during the
annual period ending with the calendar month preceding the date of such
report; and
(B) the amount, quality, and point of delivery by the pipeline to
such person of the natural gas covered by paragraph (1) which is used by
the person during such annual period.
(3) Repealed. Pub. L. 100-42, 1(c)(2)(H), May 21, 1987, 101 Stat.
310.
(4) For purposes of this subsection, the term ''pipeline'' means any
interstate or intrastate pipeline or local distribution company.
(Pub. L. 95-620, title I, 103, Nov. 9, 1978, 92 Stat. 3292; Pub.
L. 100-42, 1(c)(2), May 21, 1987, 101 Stat. 310.)
The Clean Air Act, referred to in subsec. (a)(17)(B), is act July
14, 1955, ch. 360, as amended generally by Pub. L. 88-206, Dec. 17,
1963, 77 Stat. 392, and later by Pub. L. 95-95, Aug. 7, 1977, 91
Stat. 685. The Clean Air Act was originally classified to chapter 15B (
1857 et seq.) of this title. On enactment of Pub. L. 95-95, the Act
was reclassified to chapter 85 ( 7401 et seq.) of this title. For
complete classification of this Act to the Code, see Short Title note
set out under section 7401 of this title and Tables.
The Federal Water Pollution Control Act, referred to in subsec.
(a)(17)(B), is act June 30, 1948, ch. 758, as amended generally by Pub.
L. 92-500, 2, Oct. 18, 1972, 86 Stat. 816, which is classified
generally to chapter 26 ( 1251 et seq.) of Title 33, Navigation and
Navigable Waters. For complete classification of this Act to the Code,
see Short Title note set out under section 1251 of Title 33 and Tables.
The Solid Waste Disposal Act, referred to in subsec. (a)(17)(B), is
title II of Pub. L. 89-272, Oct. 20, 1965, 79 Stat. 997, as amended
generally by Pub. L. 94-580, 2, Oct. 21, 1976, 90 Stat. 2795, which
is classified generally to chapter 82 ( 6901 et seq.) of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 6901 of this title and Tables.
The National Environmental Policy Act of 1969, referred to in subsec.
(a)(17)(B), is Pub. L. 91-190, Jan. 1, 1970, 83 Stat. 852, as
amended, which is classified generally to chapter 55 ( 4321 et seq.) of
this title. For complete classification of this Act to the Code, see
Short Title note set out under section 4321 of this title and Tables.
1987 -- Subsec. (a)(13)(B)(ii). Pub. L. 100-42, 1(c)(2)(A),
inserted ''and'' at end of subcl. (I), substituted period for ''; or''
at end of subcl. (II), and struck out subcl. (III) which read as
follows: ''in the case of a major fuel-burning installation, without
incurring significant operational detriment of the unit (as determined
by the Secretary).''
Subsec. (a)(15). Pub. L. 100-42, 1(c)(2)(B), struck out ''or major
fuel-burning installation'' after ''electric powerplant''.
Subsec. (a)(16). Pub. L. 100-42, 1(c)(2)(C), struck out ''or
installation'' after ''any powerplant'' in introductory provisions and
after ''such powerplant'' in introductory provisions and subpar. (D).
Subsec. (a)(19). Pub. L. 100-42, 1(c)(2)(D), struck out ''or a major
fuel-burning installation'' after ''electric powerplant''.
Subsec. (a)(20). Pub. L. 100-42, 1(c)(2)(E), struck out ''or major
fuel-burning installation'' after ''life of an electric powerplant''.
Subsec. (b)(1). Pub. L. 100-42, 1(c)(2)(F), struck out ''or major
fuel-burning installation'' after ''used by a powerplant'' in
introductory provisions.
Subsec. (b)(1)(D). Pub. L. 100-42, 1(c)(2)(G), substituted a period
for '', except that for purposes of the prohibition under section
8311(2) of this title against powerplants being constructed without the
capability of using coal or another alternate fuel, only permits,
licenses, and approvals for the construction of such synthetic gas
facilities shall be required under this subparagraph to be certified and
documented.''
Subsec. (b)(2). Pub. L. 100-42, 1(c)(2)(F), struck out ''or major
fuel-burning installation'' after ''by any powerplant'' in introductory
provisions.
Subsec. (b)(3). Pub. L. 100-42, 1(c)(2)(H), struck out par. (3)
which read as follows: ''In the case of any boiler subject to a
prohibition under section 8371 of this title, the preceding provisions
of this subsection shall apply with respect to such boiler to the same
extent and in the same manner as they apply in the case of major
fuel-burning installations.''
For transfer of certain functions from Nuclear Regulatory Commission
to Chairman thereof, see Reorg. Plan No. 1 of 1980, 45 F.R. 40561, 94
Stat. 3585, set out as a note under section 5841 of this title.
/1/ So in original. Probably should be capitalized.
42 USC -- 8303. Territorial application
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The provisions of this chapter shall only apply within the contiguous
48 States and the District of Columbia.
(Pub. L. 95-620, title I, 104, Nov. 9, 1978, 92 Stat. 3298; Pub.
L. 100-42, 1(c)(3), May 21, 1987, 101 Stat. 311.)
1987 -- Pub. L. 100-42 amended section generally. Prior to
amendment, section read as follows: ''The provisions of this chapter
shall apply in all the States, Puerto Rico, and the territories and
possessions of the United States, except that --
''(1) the provisions of subchapters II and III of this chapter (other
than section 8341 of this title) shall only apply to powerplants and
installations situated within the contiguous 48 States, Alaska, and the
District of Columbia; and
''(2) the provisions of section 8341 of this title shall only apply
to powerplants situated within the contiguous 48 States and the District
of Columbia.''
42 USC -- SUBCHAPTER II -- NEW FACILITIES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- Prohibitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8311. Coal capability of new electric powerplants;
certification of compliance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General prohibition
Except to such extent as may be authorized under part B, no new
electric powerplant may be constructed or operated as a base load
powerplant without the capability to use coal or another alternate fuel
as a primary energy source.
(b) Capability to use coal or alternate fuel
An electric powerplant has the capability to use coal or another
alternate fuel for purposes of this section if such electric powerplant
--
(1) has sufficient inherent design characteristics to permit the
addition of equipment (including all necessary pollution devices)
necessary to render such electric powerplant capable of using coal or
another alternate fuel as its primary energy source; and
(2) is not physically, structurally, or technologically precluded
from using coal or another alternate fuel as its primary energy source.
Capability to use coal or another alternate fuel shall not be
interpreted to require any such powerplant to be immediately able to use
coal or another alternate fuel as its primary energy source on its
initial day of operation.
(c) Applicability to base load powerplants
(1) This section shall apply only to base load powerplants, and shall
not apply to peakload powerplants or intermediate load powerplants.
(2) For the purposes of this section, hours of electrical generation
pursuant to emergency situations, as defined by the Secretary and
reported to the Secretary, shall not be included in a determination of
whether a powerplant is being operated as a base load powerplant.
(d) Self-certification
(1) In order to meet the requirement of subsection (a) of this
section, the owner or operator of any new electric powerplant to be
operated as a base load powerplant proposing to use natural gas or
petroleum as its primary energy source shall certify to the Secretary
prior to construction, or prior to operation as a base load powerplant
in the case of a new electric powerplant operated as a peakload
powerplant or intermediate load powerplant, that such powerplant has
capability to use coal or another alternate fuel, within the meaning of
subsection (b) of this section. Such certification shall be effective
to establish compliance with the requirement of subsection (a) of this
section as of the date it is filed with the Secretary. Within 15 days
after receipt of a certification submitted pursuant to this paragraph,
the Secretary shall publish in the Federal Register a notice reciting
that the certification has been filed.
(2) The Secretary, within 60 days after the filing of a certification
under paragraph (1), may require the owner or operator of such
powerplant to provide such supporting documents as may be necessary to
verify the certification.
(Pub. L. 95-620, title II, 201, Nov. 9, 1978, 92 Stat. 3298; Pub.
L. 100-42, 1(c)(4)(A), May 21, 1987, 101 Stat. 311.)
1987 -- Pub. L. 100-42 substituted ''Coal capability of new electric
powerplants; certification of compliance'' for ''New electric
powerplants'' in section catchline and amended text generally. Prior to
amendment, text read as follows: ''Except to such extent as may be
authorized under part B --
''(1) natural gas or petroleum shall not be used as a primary energy
source in any new electric powerplant; and
''(2) no new electric powerplant may be constructed without the
capability to use coal or any other alternate fuel as a primary energy
source.''
42 USC -- 8312. Repealed. Pub. L. 100-42, 1(a)(1), May 21, 1987, 101
Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title II, 202, Nov. 9, 1978, 92 Stat.
3298, prohibited, except to extent authorized under part B, use of
natural gas or petroleum as primary energy source in new major
fuel-burning installation consisting of a boiler, and authorized
Secretary to prohibit nonboilers from using natural gas or petroleum.
42 USC -- Part B -- Exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8321. Temporary exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from the prohibitions of part A, the
Secretary shall, by order, grant an exemption under this subsection for
the use of natural gas or petroleum, if he finds that the petitioner has
demonstrated that for the period of the proposed exemption, despite
diligent good faith efforts --
(1) it is likely that an adequate and reliable supply of coal or
other alternate fuel of the quality necessary to conform with design and
operational requirements for use as a primary energy source will not be
available to such powerplant at a cost (taking into account associated
facilities for the transportation and use of such fuel) which, based
upon the best practicable estimates, does not substantially exceed the
cost, as determined by rule by the Secretary, of the fuel that would be
used as a primary energy source;
(2) one or more site limitations exist which would to /1/ permit the
location or operation of such a powerplant using coal or any other
alternate fuel as a primary energy source; or
(3) the prohibitions of section 8311 of this title could not be
satisfied without violating applicable environmental requirements.
(b) Temporary exemption based upon future use of synthetic fuels
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from the prohibitions of part A, the
Secretary shall, by order, grant an exemption under this subsection for
the use of natural gas or petroleum, if he finds that the petitioner has
demonstrated that --
(1) the petitioner will comply with the prohibitions of part A by the
end of the proposed exemption by the use of a synthetic fuel derived
from coal or another alternate fuel; and
(2) the petitioner is not able to comply with such prohibitions by
the use of such synthetic fuel until the end of the proposed exemption.
The effectiveness of an exemption under this subsection is
conditioned on the petitioner filing and maintaining a compliance plan
meeting the requirements of section 8324(b) of this title.
(c), (d) Repealed. Pub. L. 100-42, 1(c)(5)(E), May 21, 1987, 101
Stat. 312
(e) Duration of temporary exemptions
(1) Except as provided in paragraph (2), exemptions under this
section for any powerplant may not exceed, taking into account any
extension or renewal, 5 years.
(2)(A) An exemption under subsection (a)(1) of this section may be
granted for a period of more than 5 years, but may not exceed, taking
into account any extension or renewal, 10 years.
(B) An exemption under subsection (b) of this section may be extended
beyond the 5-year limit under paragraph (1), but such exemption, so
extended, may not exceed 10 years.
(3) If an exemption is granted for any powerplant before the
powerplant is placed in service, the period before it is placed in
service shall not be taken into account in computing the 5-year and the
10-year limitations of paragraphs (1) and (2).
(Pub. L. 95-620, title II, 211, Nov. 9, 1978, 92 Stat. 3299; Pub.
L. 100-42, 1(c)(5), May 21, 1987, 101 Stat. 312.)
1987 -- Subsec. (a). Pub. L. 100-42, 1(c)(5)(A)-(D), substituted
''from'' for ''or installation from one or more of'' in introductory
provisions, substituted ''the fuel that would be used'' for ''using
imported petroleum'' and struck out ''or installation'' after
''powerplant'' in par. (1), struck out ''or installation'' after
''powerplant'' in par. (2), and struck out ''or 8312'' after ''8311''
in par. (3).
Subsec. (b). Pub. L. 100-42, 1(c)(5)(A), substituted ''from'' for
''or installation from one or more of''.
Subsec. (c). Pub. L. 100-42, 1(c)(5)(E), struck out subsec. (c)
which read as follows: ''After consideration of a petition (and
comments thereon) for an exemption for a powerplant or installation from
one or more of the prohibitions of part A, the Secretary may, by order,
grant an exemption under this subsection for the use of natural gas or
petroleum, if he finds that the petitioner has demonstrated that for the
period of the proposed exemption the issuance of such exemption would be
in the public interest and would be consistent with the purposes of this
chapter.''
Subsec. (d). Pub. L. 100-42, 1(c)(5)(E), struck out subsec. (d)
which read as follows: ''After consideration of a petition (and
comments thereon) for an exemption from the prohibition of the use of
petroleum under section 8312 of this title for an installation with a
design capacity of consuming any fuel (or any mixture thereof) at a fuel
heat input rate which does not exceed 300 million Btu's per hour, the
Secretary may, by order, grant an exemption under this subsection for
the use of petroleum if he finds that the petitioner has demonstrated,
by the existence of binding contracts or other evidence, including
appropriate State construction permits, that he will use coal or another
alternate fuel for at least 75 percent of the annual fuel heat input
rate upon the expiration of such exemption. For provisions relating to
authority to receive, consider and granting (or denying) certain
petitons (sic) for an exemption under this subsection, see section
902(b).''
Subsec. (e)(1), (3). Pub. L. 100-42, 1(c)(5)(B), struck out ''or
installation'' after ''powerplant'' wherever appearing.
For effectiveness of exemption for certain electric powerplants and
the temporary exemption issued under subsec. (d) of this section as
prior to 180 days after Nov. 9, 1978, see section 902 of Pub. L.
95-620, set out as a note under section 8301 of this title.
/1/ So in original. Probably should be ''not''.
42 USC -- 8322. Permanent exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Permanent exemption due to lack of alternate fuel supply, site
limitations, environmental requirements, or adequate capital
(1) After consideration of a petition (and comments thereon) for an
exemption for a powerplant from the prohibitions of part A, the
Secretary shall, by order, grant a permanent exemption under this
subsection with respect to natural gas or petroleum, if he finds that
the petitioner has demonstrated that despite diligent good faith efforts
--
(A) it is likely that an adequate and reliable supply of coal or
other alternate fuel of the quality necessary to conform with design and
operational requirements for use as a primary energy source (i) will not
be available within the first 10 years of the useful life of the
powerplant, or (ii) will not be available at a cost (taking into account
associated facilities for the transportation and use of such fuel)
which, based upon the best practicable estimates, does not substantially
exceed the cost, as determined by rule by the Secretary, of the fuel
that would be used as a primary energy source during the useful life of
the powerplant involved;
(B) one or more site limitations exist which would not permit the
location or operation of such powerplant using coal or any other
alternate fuel as a primary energy source;
(C) the prohibitions of part A could not be satisfied without
violating applicable environmental requirements; or
(D) the required use of coal or any other alternate fuel would not
allow the petitioner to obtain adequate capital for the financing of
such powerplant.
(2) The demonstration required to be made by a petitioner under
paragraph (1) shall be made with respect to the site of such powerplant
and reasonable alternative sites.
(b) Permanent exemption due to certain State or local requirements
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from the prohibitions of part A, the
Secretary may, by order, grant a permanent exemption under this
subsection with respect to natural gas or petroleum, if he finds that
the petitioner has demonstrated that --
(1) with respect to the proposed site of the powerplant, the
construction or operation of such a facility using coal or any other
alternate fuel is infeasible because of a State or local requirement
(other than a building code or a nuisance or zoning law);
(2) there is no reasonable alternative site for such powerplant which
meets the criteria set forth in subsection (a)(1)(A) through (D) of this
section; and
(3) the granting of the exemption would be in the public interest and
would be consistent with the purposes of this chapter.
(c) Permanent exemption for cogeneration
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
cogeneration facility, the Secretary may, by order, grant a permanent
exemption under this subsection with respect to natural gas or
petroleum, if he --
(1) finds that the petitioner has demonstrated that economic and
other benefits of cogeneration are unobtainable unless petroleum or
natural gas, or both, are used in such facility, and
(2) includes in the final order a statement of the basis for such
finding.
(d) Permanent exemption for certain mixtures containing natural gas
or petroleum
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from the prohibitions of part A, the
Secretary shall, by order, grant a permanent exemption under this
subsection with respect to natural gas or petroleum, if he finds that
the petitioner has demonstrated that --
(1) the powerplant uses, or proposes to use, a mixture of petroleum
or natural gas and coal or another alternate fuel as a primary energy
source; and
(2) the amount of the petroleum or natural gas used in such mixture
will not exceed the minimum percentage of the total Btu heat input of
the primary energy sources of such powerplant needed to maintain
reliability of operation of such powerplant consistent with maintaining
a reasonable level of fuel efficiency, as determined in accordance with
rules prescribed by the Secretary.
(e) Permanent exemption for emergency purposes
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection with respect to natural gas or petroleum, if he
finds that the petitioner has demonstrated that such powerplant will be
maintained and operated only for emergency purposes (as defined by rule
by the Secretary).
(f) Permanent exemption for powerplants necessary to maintain
reliability of service
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from one or more of the prohibitions of part
A, the Secretary may, by order, grant a permanent exemption under this
subsection with respect to natural gas or petroleum if he finds that the
petitioner has demonstrated that --
(1) such exemption is necessary to prevent impairment of reliability
of service, and
(2) the petitioner, despite diligent good faith efforts, is not able
to make the demonstration necessary to obtain an exemption under
subsection (a) or (b) of this section in the time required to prevent
such impairment of service.
(Pub. L. 95-620, title II, 212, Nov. 9, 1978, 92 Stat. 3300; Pub.
L. 100-42, 1(c)(6), May 21, 1987, 101 Stat. 312.)
1987 -- Subsec. (a)(1). Pub. L. 100-42, 1(c)(6)(A)-(C), substituted
''from'' for ''or installation from one or more of'' in introductory
provisions, substituted ''the fuel that would be used'' for ''using
imported petroleum'' and struck out ''or installation'' after
''powerplant'' wherever appearing in subpar. (A), and struck out ''or
installation'' after ''powerplant'' in subpars. (B) and (D).
Subsec. (a)(2). Pub. L. 100-42, 1(c)(1)(D), struck out '' --
''(A) in the case of a new major fuel-burning installation, be made
with respect to the site of such installation proposed by the
petitioner; and
''(B) in the case of a new electric powerplant,''
after ''paragraph (1) shall''.
Subsec. (a)(3). Pub. L. 100-42, 1(c)(6)(E), struck out par. (3)
which read as follows: ''Notwithstanding the preceding provisions of
this subsection, a powerplant which has been granted an exemption under
subsection (h) of this section may not be granted an exemption under
this subsection.''
Subsec. (b). Pub. L. 100-42, 1(c)(6)(A), (B), (F), in introductory
provisions substituted ''from'' for ''or installation from one or more
of'', in par. (1) struck out ''or installation'' after ''powerplant'',
and in par. (2) struck out ''in the case of a powerplant,'' after
''(2)''.
Subsec. (d). Pub. L. 100-42, 1(c)(6)(A), (B), (G), struck out
''(1)'' before ''After consideration of'', substituted ''from'' for
''installation from one or more of'' in introductory provisions,
redesignated subpars. (A) and (B) of former par. (1) as pars. (1) and
(2), respectively, struck out ''or installation'' after ''powerplant''
wherever appearing in such pars., and struck out former par. (2) which
read as follows: ''In the case of a new major fuel-burning
installation, the percentage determined by the Secretary under
subparagraph (B) of paragraph (1) shall not be less than 25 percent.''
Subsec. (e). Pub. L. 100-42, 1(c)(6)(B), struck out ''or
installation'' after ''powerplant'' wherever appearing.
Subsec. (g). Pub. L. 100-42, 1(c)(6)(H), struck out subsec. (g)
which related to issuance, by order of Secretary of Energy, of permanent
exemptions for use of natural gas or petroleum for peakload powerplants.
Subsec. (h). Pub. L. 100-42, 1(c)(6)(H), struck out subsec. (h)
which related to issuance, by order of Secretary of Energy, of permanent
exemptions for use of petroleum for intermediate load powerplants.
Subsec. (i). Pub. L. 100-42, 1(c)(6)(H), struck out subsec. (i)
which related to issuance, by order of Secretary of Energy, of permanent
exemptions for use of natural gas or petroleum for installations based
upon product or process requirements.
Subsec. (j). Pub. L. 100-42, 1(c)(6)(H), struck out subsec. (j)
which related to issuance, by order of Secretary of Energy, of permanent
exemptions for use of natural gas or petroleum for installations
necessary to meet scheduled equipment outages.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- 8323. General requirements for exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Use of mixtures or fluidized bed combustion not feasible
Except in the case of an exemption under section 8322(d) of this
title, the Secretary may grant a permanent exemption for a powerplant
under this part only --
(1) if the applicant has demonstrated that the use of a mixture of
natural gas or petroleum and coal or another alternate fuel, for which
an exemption under section 8322(d) of this title would be available, is
not economically or technically feasible; and
(2) if the Secretary has not made a finding that the use of a method
of fluidized bed combustion of coal or another alternate fuel is
economically and technically feasible.
(b) State approval required for powerplant
If the appropriate State regulatory authority has not approved a
powerplant for which a petition has been filed, such exemption, to the
extent it applies to the prohibition under section 8311 of this title
against construction without the capability of using coal or another
alternate fuel, shall not take effect until all approvals required by
such State regulatory authority which relate to construction have been
obtained.
(c) No alternative power supply in the case of a powerplant
(1) Except in the case of an exemption under section 8322(c) of this
title, the Secretary may not grant an exemption for a new powerplant
unless he finds that the petitioner has demonstrated that there is no
alternative supply of electric power which is available within a
reasonable distance at a reasonable cost without impairing short-run or
long-run reliability of service and which can be obtained by the
petitioner, despite reasonable good faith efforts.
(2) The Secretary shall forward a copy of any such petition to the
Federal Energy Regulatory Commission promptly after it is filed with the
Secretary and shall consult with such Commission before making any
finding on such petition under paragraph (1).
(Pub. L. 95-620, title II, 213, Nov. 9, 1978, 92 Stat. 3304; Pub.
L. 100-42, 1(c)(7), May 21, 1987, 101 Stat. 312.)
1987 -- Subsec. (a). Pub. L. 100-42, 1(c)(7)(A), (B), in
introductory provisions struck out ''or (g)'' after ''8322(d)'' and ''or
installation'' after ''powerplant''.
Subsec. (b). Pub. L. 100-42, 1(c)(7)(C), amended subsec. (b)
generally. Prior to amendment, subsec. (b) read as follows: ''If the
appropriate State regulatory authority has not approved a powerplant for
which a petition has been filed, such exemption --
''(1) to the extent it applies to the prohibition under section
8311(2) of this title against construction without the capability of
using coal or another alternate fuel, shall not take effect until all
approvals required by such State regulatory authority which relate to
construction have been obtained; and
''(2) to the extent it applies to the prohibition under section
8311(1) of this title against the use of natural gas or petroleum as a
primary energy source, shall not take effect until all approvals
required by such State regulatory authority which relate to construction
or operation have been obtained.''
Subsec. (c)(1). Pub. L. 100-42, 1(c)(7)(A), in introductory
provisions struck out ''or (g)'' after ''section 8322(c)''.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- 8324. Terms and conditions; compliance plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Terms and conditions generally
Any exemption from any prohibition under this part shall be on such
terms and conditions as the Secretary determines appropriate, including
terms and conditions requiring the use of effective fuel conservation
measures which are practicable and consistent with the purposes of this
chapter. In the case of any temporary exemption, the terms and
conditions (which may include a compliance plan meeting the requirements
of subsection (b) of this section) shall be designed to insure that upon
the expiration of such exemption, the persons and powerplant covered by
such exemption will comply with the applicable prohibitions.
(b) Compliance plans
A compliance plan meets the requirements of this subsection if it is
approved by the Secretary and --
(1) contains (A) a schedule indicating how compliance with applicable
prohibitions of this chapter will occur and (B) evidence of binding
contracts for fuel, or facilities for the production of fuel, which
would allow or /1/ such compliance; and
(2) is revised at such times and to such extent as the Secretary may
require to reflect changes in circumstances.
(Pub. L. 95-620, title II, 214, Nov. 9, 1978, 92 Stat. 3304; Pub.
L. 100-42, 1(c)(8), May 21, 1987, 101 Stat. 312.)
1987 -- Subsec. (a). Pub. L. 100-42 struck out ''or installation''
after ''powerplant''.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
/1/ So in original. Probably should be ''for''.
42 USC -- SUBCHAPTER III -- EXISTING FACILITIES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- Prohibitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8341. Existing electric powerplants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Certification by powerplants of coal capability
At any time, the owner or operator of an existing electric powerplant
may certify to the Secretary, for purposes of subsection (b) of this
section --
(1) whether or not such powerplant has or previously had the
technical capability to use coal or another alternate fuel as a primary
energy source;
(2) whether or not such powerplant could have the technical
capability to use coal or another alternate fuel as a primary energy
source without having --
(A) substantial physical modification of the powerplant, or
(B) substantial reduction in the rated capacity of the powerplant;
and
(3) whether or not it is financially feasible to use coal or another
alternate fuel as a primary energy source in such a powerplant.
(b) Authority of Secretary to prohibit where coal or alternate fuel
capability exists
The Secretary may prohibit, in accordance with section 8343(a) or (b)
of this title, the use of petroleum or natural gas, or both, as a
primary energy source in any existing electric powerplant, if an
affirmative certification under subsection (a)(1), (2), and (3) of this
section is in effect with respect to such powerplant and if, after
examining the basis for the certification, the Secretary concurs with
the certification.
(c) Authority of Secretary to prohibit excessive use in mixtures
At any time, the owner or operator of an existing electric powerplant
may certify to the Secretary for purposes of this subsection whether or
not it is technically and financially feasible to use a mixture of
petroleum or natural gas and coal or another alternate fuel as a primary
energy source in that powerplant. If an affirmative certification under
this subsection is in effect with respect to such powerplant and if,
after examining the basis for the certification, the Secretary concurs
with the certification, the Secretary may prohibit, in accordance with
section 8343(a) of this section, the use of petroleum or natural gas, or
both, in such powerplant in amounts in excess of the minimum amount
necessary to maintain reliability of operation of the unit consistent
with maintaining reasonable fuel efficiency of such mixture.
(d) Amendment of subsection (a) and (c) certifications
The owner or operator of any such powerplant may at any time amend
any certification under subsection (a) or (c) of this section in order
to take into account changes in relevant facts and circumstances;
except that no such amendment to such a certification may be made after
the date of any final prohibition under subsection (b) or (c) of this
section based on that certification.
(Pub. L. 95-620, title III, 301, as added Pub. L. 97-35, title X,
1021(a), Aug. 13, 1981, 95 Stat. 614.)
A prior section 8341, Pub. L. 95-620, title III, 301, Nov. 9,
1978, 92 Stat. 3305, which related to existing electric powerplants,
was repealed by Pub. L. 97-35, title X, 1021(a), Aug. 13, 1981, 95
Stat. 614.
Section effective Aug. 13, 1981, see section 1038 of Pub. L.
97-35, set out as an Effective Date of 1981 Amendment note under section
6240 of this title.
Section 1022 of Pub. L. 97-35 provided that:
''(a) The amendments made by section 1021 to section 301(b) and (c)
of the Powerplant and Industrial Fuel Use Act of 1978 (subsecs. (b) and
(c) of this section) shall not apply to any electric powerplant for
which a final order was issued pursuant to section 301(b) or (c) of such
Act before the date of the enactment of this Act (Aug. 13, 1981).
''(b) Any electric powerplant issued a proposed order under section
301(b) or (c) of such Act which is pending on the date of the enactment
of this Act may elect not to have the amendments made by section 1021 to
such section 301(b) or (c) apply with respect to that powerplant. Such
an election shall be irrevocable and shall be made in such form and
manner as the Secretary of Energy shall, within 45 days after the date
of the enactment of this Act, prescribe. Such an election shall be made
not later than 60 days after the date on which the Secretary of Energy
prescribes the form and manner of making such election.
''(c)(1) The amendments made by section 1021 shall not affect the
validity of any final order issued under section 301(b) or (c) of the
Powerplant and Industrial Fuel Use Act of 1978 before the date of the
enactment of this Act.
''(2) The validity of any proposed order issued under such section
301(b) or (c) shall not be affected in the case of powerplants covered
by elections made under subsection (b).
''(3) The authority of the Secretary of Energy to amend, repeal,
rescind, modify, or enforce any order referred to in paragraph (1) or
(2), or rules applicable thereto, shall remain in effect notwithstanding
any such amendments.''
42 USC -- 8342. Repealed. Pub. L. 100-42, 1(a)(2), May 21, 1987, 101
Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title III, 302, Nov. 9, 1978, 92 Stat.
3306, authorized Secretary to prohibit use of petroleum or natural gas
as primary energy source in existing major fuel-burning installations
having coal or alternate fuel capability and, in installations in which
mixtures of petroleum or natural gas and coal or other alternate fuels
are found feasible, to prohibit excessive use of petroleum or natural
gas in such mixtures.
42 USC -- 8343. Rules relating to case-by-case and category
prohibitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Case-by-case prohibitions
(1) Except to the extent authorized by subsection (b) of this
section, the Secretary shall prohibit any powerplant from using natural
gas or petroleum under the authority granted him under section 8341(b)
or (c) of this title only by means of a final order issued by him which
shall be limited to the particular powerplant involved.
(2) The Secretary may issue such a final order only with respect to a
powerplant which is not, at the time the proposed order is issued,
covered by a final rule issued under subsection (b) of this section.
(b) Prohibitions applicable to categories of facilities
(1) The Secretary may prohibit, by rule, the use of natural gas or
petroleum under section 8341(b) of this title in existing electric
powerplants.
(2) Each powerplant to be covered by any final rule issued under this
subsection shall be specifically identified in the proposed rule
published under section 8411(b) of this title.
(3) In prescribing any final rule under this subsection, the
Secretary shall take into account any special circumstances or
characteristics of each category of powerplants (such as the
intermittent use, size, age, or geographic location of such
powerplants). Any such rules shall not apply in the case of any
existing electric powerplant with respect to which a comparable
prohibition was issued by order.
(Pub. L. 95-620, title III, 303, Nov. 9, 1978, 92 Stat. 3306; Pub.
L. 100-42, 1(c)(9), May 21, 1987, 101 Stat. 312.)
1987 -- Subsec. (a)(1). Pub. L. 100-42, 1(c)(9)(A), (B), struck out
''or installation'' after ''powerplant'' in two places and ''or 8342''
after ''section 8341(b) or (c)''.
Subsec. (a)(2). Pub. L. 100-42, 1(c)(9)(A), struck out ''or
installation'' after ''powerplant''.
Subsec. (a)(3). Pub. L. 100-42, 1(c)(9)(C), struck out par. (3)
which read as follows:
''(A) Subject to subparagraph (B), the Secretary shall not issue a
final order under this subsection to any powerplant if it is
demonstrated that such powerplant would have been granted an exemption
if such prohibition had been established by a final rule pursuant to
subsection (b) of this section rather than by order pursuant to this
subsection, except that if a temporary exemption would have been
granted, such a final order may be issued but may not take effect until
such time as the temporary exemption would have terminated.
''(B) In any case in which an order is not issued by reason of
subparagraph (A) or in which the effective date of such order is delayed
under subparagraph (A), the Secretary shall take such steps as may be
necessary to assure the installation involved complies with the same
requirements (including provisions of section 8354(a) of this title) as
would have been applicable if an exemption had been granted based upon
the grounds for which the order is not issued or the effective date of
which is delayed.''
Subsec. (b)(1). Pub. L. 100-42, 1(c)(9)(D), amended par. (1)
generally. Prior to amendment, par. (1) read as follows: ''The
Secretary may, by rule, prohibit the use of natural gas or petroleum
pursuant to section 8341(b) or 8342(a) of this title --
''(A) in the case of any category of existing electric powerplants
identified in such rule; and
''(B) in the case of any category of existing major fuel-burning
installations which have design capabilities of consuming fuel (or any
mixture thereof) at a fuel heat input rate of 300 million Btu's per hour
or greater which are identified in such rule.''
Subsec. (b)(2). Pub. L. 100-42, 1(c)(9)(A), struck out ''or
installation'' after ''powerplant''.
Subsec. (b)(3). Pub. L. 100-42, 1(c)(9)(A), (E), struck out ''or
installations'' after ''powerplants'' in two places in introductory
provisions, and amended last sentence generally. Prior to amendment,
last sentence read as follows: ''Any such rules shall not apply in the
case of any existing electric powerplant with respect to which a
comparable prohibition was issued by order.''
42 USC -- Part B -- Exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8351. Temporary exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Temporary exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant such an exemption for
the use of natural gas or petroleum, if he finds that the petitioner has
demonstrated that for the period of the proposed exemption, despite
diligent good faith efforts --
(1) it is likely that an adequate and reliable supply of coal or
other alternate fuel of the quality necessary to conform with design and
operational requirements for use as a primary energy source, will not be
available to such powerplant at a cost (taking into account associated
facilities for the transportation and use of such fuel) which, based
upon the best practicable estimates, does not substantially exceed the
costs, as determined by rule by the Secretary, of using imported
petroleum as a primary energy source;
(2) one or more site limitations exist which would not permit the
operation of such a powerplant using coal or any other alternate fuel as
a primary energy source; or
(3) the prohibitions of section 8341 of this title could not be
satisfied without violating applicable environmental requirements.
(b) Temporary exemption based upon future use of synthetic fuels
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary, by order, shall grant an exemption under this
subsection for the use of natural gas or petroleum, if he finds that the
petitioner has demonstrated that --
(1) the petitioner will comply with the prohibitions of part A by the
end of the proposed exemption by the use of a synthetic fuel derived
from coal or another alternate fuel; and
(2) the petitioner is not able to comply with such prohibitions by
the use of such synthetic fuel until the end of the proposed exemption.
The effectiveness of an exemption under this subsection is
conditioned on the petitioner filing and maintaining a compliance plan
meeting the requirements of section 8354(b) of this title.
(c) Temporary exemption based upon use of innovative technologies
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary, by order, shall grant an exemption under this
subsection for the use of natural gas or petroleum, if he finds that the
petitioner has demonstrated that such powerplant will comply with such
prohibitions at the expiration of such exemption by the adoption of a
technology for the use of coal or another alternate fuel which at the
time of the granting of the exemption is determined by the Secretary to
be an innovative technology. The effectiveness of an exemption under
this subsection is conditioned on the petitioner filing and maintaining
a compliance plan meeting the requirements of section 8354(b) of this
title.
(d) Temporary exemption for units to be retired
(1) After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant an exemption under this
subsection for the use of natural gas or petroleum, if he finds that the
petitioner has demonstrated that such powerplant is to permanently cease
operation at or before the expiration of the exemption period. An
exemption under this subsection is conditioned on the petitioner filing
and maintaining a compliance plan meeting the requirements of section
8354(b) (other than paragraph (1)(B)) of this title.
(2) Notwithstanding any other provision of this chapter, an exemption
under this part may not be granted for any powerplant once an exemption
under this subsection has been granted for such powerplant.
(e) Temporary public interest exemption
After consideration of a petition (and comments thereon) for an
exemption for a powerplant from one or more of the prohibitions of part
A for a powerplant, the Secretary may, by order, grant an exemption
under this subsection for the use of natural gas or petroleum, if he
finds that the petitioner has demonstrated that for the period of the
proposed exemption the issuance of such exemption is in the public
interest and is consistent with the purposes of this chapter.
(f) Temporary exemption for peakload powerplants
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant an exemption under this
subsection for the use of natural gas or petroleum, if the petitioner
certifies that such powerplant is to be operated solely as a peakload
powerplant.
(g) Temporary exemption for powerplants where necessary to maintain
reliability of service
(1) After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant an exemption under this
subsection for the use of natural gas or petroleum, if he finds that the
petitioner has demonstrated that such exemption is necessary to prevent
impairment of reliability of service.
(2) Notwithstanding any other provision of this chapter, an exemption
under this part (other than a permanent exemption under section 8352(f)
of this title for the use of petroleum) may not be granted for any
powerplant for which an exemption under this subsection has been
granted.
(h) Duration of temporary exemptions
(1) Except as provided in paragraphs (2) and (3), exemptions under
this section for any powerplant may not exceed, taking into account any
extension or renewal, 5 years.
(2)(A) An exemption under subsection (a)(1) of this section may be
granted for a period of more than 5 years, but may not exceed, taking
into account any extension or renewal, 10 years.
(B) Subject to paragraph (3), an exemption under subsections (b),
(c), and (g) of this section may be extended beyond the 5-year limit
under paragraph (1), but such exemption, so extended, may not exceed 10
years.
(3) An exemption under subsections (d), (f), and (g) of this section
for the use of natural gas by a powerplant may not extend beyond
December 31, 1994.
(4) In computing the 5-year and 10-year limitations of paragraphs (1)
and (2) in the case of any exemption under this section, the period
before the prohibition on the use of natural gas and petroleum would
first apply (if the exemption had not been granted) shall be
disregarded.
(Pub. L. 95-620, title III, 311, Nov. 9, 1978, 92 Stat. 3307; Pub.
L. 100-42, 1(c)(10), (11), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (a). Pub. L. 100-42, 1(c)(10), (11), struck out
''or installation'' after ''powerplant'' in introductory provisions and
in pars. (1) and (2) and struck out ''or 8342'' after ''section 8341''
in par. (3).
Subsecs. (b) to (e), (h)(1). Pub. L. 100-42, 1(c)(10), struck out
''or installation'' after ''powerplant'' wherever appearing.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- 8352. Permanent exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Permanent exemption due to lack of alternate fuel supply, site
limitations, or environmental requirements
(1) After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection for the use of natural gas or petroleum, if he
finds that the petitioner has demonstrated that despite diligent good
faith efforts --
(A) it is likely that an adequate and reliable supply of coal or
other alternate fuels of the quality necessary to conform with design
and operational requirements for use as a primary energy source will not
be available to such powerplant at a cost (taking into account
associated facilities for the transportation and use of such fuel)
which, based upon the best practicable estimates, does not substantially
exceed the cost, as determined by rule by the Secretary, of using
imported petroleum as a primary energy source during the remaining
useful life of the powerplant;
(B) one or more site limitations exist which would not permit the
operation of such a powerplant using coal or any other alternate fuel as
a primary energy source; or
(C) the prohibitions of part A could not be satisfied without
violating applicable environmental requirements.
(2) Notwithstanding the preceding provisions of this subsection, a
powerplant which has been granted an exemption under subsection (g) of
this section may not be granted an exemption under this subsection.
(b) Permanent exemption due to certain State or local requirements
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary may, by order, grant a permanent exemption
under this subsection, if he finds that the petitioner has demonstrated
that --
(1) with respect to the site of the powerplant, the operation of such
a facility using coal or any other alternate fuel is infeasible because
of a State or local requirement;
(2) if such State or local requirement is under a building code or
nuisance or zoning law, no other exemption under this part could be
granted for such facility; and
(3) the granting of the exemption would be in the public interest and
would be consistent with the purposes of this chapter.
(c) Permanent exemption for cogeneration
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
cogeneration facility, the Secretary may, by order, grant a permanent
exemption under this subsection, if he --
(1) finds that the petitioner has demonstrated that economic and
other benefits of cogeneration are unobtainable unless petroleum or
natural gas, or both, are used in such facility, and
(2) includes in the final order a statement of the basis for such
finding.
(d) Permanent exemption for certain fuel mixtures containing natural
gas or petroleum
(1) After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection, if he finds that the petitioner has demonstrated
that --
(A) the powerplant uses, or proposes to use, a mixture of petroleum
or natural gas and coal or another alternate fuel as a primary energy
source; and
(B) the amount of the petroleum or natural gas used in such mixture
will not exceed the minimum percentage of the total Btu heat input of
the primary energy sources of such powerplant needed to maintain
reliability of operation of the unit consistent with maintaining a
reasonable level of fuel efficiency, as determined in accordance with
rules prescribed by the Secretary.
(2) Repealed. Pub. L. 100-42, 1(c)(12)(A), May 21, 1987, 101 Stat.
313.
(3) The Secretary may authorize a higher percentage than that
referred to in paragraph (1)(B) if he finds that the higher percentage
of natural gas allowed would be mixed with synthetic fuels derived from
municipal wastes or agricultural wastes and would encourage the use of
alternate or new technologies which use renewable sources of energy.
(e) Permanent exemption for emergency purposes
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection, if he finds that the petitioner has demonstrated
that such powerplant will be maintained and operated only for emergency
purposes (as defined by rule by the Secretary).
(f) Permanent exemption for peakload powerplants
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection, if he finds that --
(1) the powerplant is operated solely as a peakload powerplant;
(2) a denial of such petition is likely to result in an impairment of
reliability of service; and
(3)(A) modification of the powerplant to permit compliance with such
prohibitions is technically infeasible; or
(B) such modification would result in an unreasonable expense.
(g) Permanent exemption for intermediate load powerplants
(1) After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A on the use of
petroleum by a powerplant, the Secretary may, by order, grant a
permanent exemption under this subsection, if he finds that the
petitioner has demonstrated that --
(A) the Administrator of the Environmental Protection Agency (or the
appropriate State air pollution control agency) certifies to the
Secretary that the use by such powerplant of coal or any available
alternate fuel as a primary energy source will cause or contribute to a
concentration, in an air quality control region or any area within such
region, of a pollutant for which any national ambient air quality
standard is or would be exceeded for such area;
(B) such powerplant is to be operated only to replace no more than
the equivalent capacity of existing electric powerplants --
(i) which use natural gas or petroleum as a primary energy source,
(ii) which are owned by the same person who is to operate such
powerplant, and
(iii) which, if they used coal as a primary energy source, would
cause or contribute to such a concentration in such region;
(C) such powerplant is and shall continue to be operated solely as an
intermediate load powerplant;
(D) the net fuel heat input rate for such powerplant will be
maintained at or less than 9,500 Btu's per kilowatt hour throughout the
remaining useful life of the powerplant; and
(E) the powerplant has the capability to use synthetic fuels derived
from coal or other alternate fuel.
(2) The Secretary shall, from time to time, review each exemption
granted to a powerplant under this subsection, and shall terminate such
exemption if he finds that there is available a supply of synthetic fuel
derived from coal or other alternate fuel suitable for use as a primary
energy source by such powerplant.
(h) Permanent exemption for use of natural gas by certain powerplants
with capacities of less than 250 million Btu's per hour
(1) Subject to paragraph (2), after consideration of a petition (and
comments thereon) for an exemption from any prohibition of part A for
the use of natural gas by a powerplant, the Secretary shall, by order,
grant a permanent exemption under this subsection for such use, if he
finds that the petitioner has demonstrated that --
(A) such powerplant has a design capability of consuming fuel (or any
mixture thereof) at a fuel heat input rate of less than 250 million
Btu's per hour;
(B) such powerplant was a baseload powerplant on April 20, 1977; and
(C) such powerplant is not capable of consuming coal without --
(i) substantial physical modification of the unit; or
(ii) substantial reduction in the rated capacity of the unit (as
determined by the Secretary).
(2) An exemption under this subsection may only apply to the
prohibitions under section 8341 of this title and prohibitions
established by final rules or orders issued before January 1, 1990.
(i) Permanent exemption for use of LNG by certain powerplants
After consideration of a petition (and comments thereon) for an
exemption from one or more of the prohibitions of part A for a
powerplant, the Secretary shall, by order, grant a permanent exemption
under this subsection for the use of liquefied natural gas if the
Administrator of the Environmental Protection Agency (or the appropriate
State air pollution control agency) has certified to the Secretary that
the use of coal by such powerplant as a primary energy source will cause
or contribute to a concentration, in an air quality control region or
any area within such region, of a pollutant for which any national
ambient air quality standard is or would be exceeded for such region or
area and the use of coal would not comply with applicable environmental
requirements.
(Pub. L. 95-620, title III, 312, Nov. 9, 1978, 92 Stat. 3309; Pub.
L. 100-42, 1(c)(10), (12), May 21, 1987, 101 Stat. 313.)
1987 -- Subsecs. (a)(1), (b), (d)(1). Pub. L. 100-42, 1(c)(10),
struck out ''or installation'' after ''powerplant'' wherever appearing.
Subsec. (d)(2). Pub. L. 100-42, 1(c)(12)(A), struck out par. (2)
which read as follows: ''In the case of an existing major fuel-burning
installation, the percentage determined by the Secretary under
subparagraph (B) of paragraph (1) shall not be less than 25 percent.''
Subsec. (d)(3). Pub. L. 100-42, 1(c)(12)(B), substituted ''The'' for
''In the case of an existing electric powerplant, the''.
Subsec. (e). Pub. L. 100-42, 1(c)(10), struck out ''or
installation'' after ''powerplant'' wherever appearing.
Subsec. (j). Pub. L. 100-42, 1(c)(12)(C), struck out subsec. (j)
which related to granting, by Secretary of Energy, of permanent
exemptions for use of natural gas for installations served by
international pipelines.
Subsec. (k). Pub. L. 100-42, 1(c)(12)(C), struck out subsec. (k)
which related to granting, by Secretary of Energy, of permanent
exemptions for use of natural gas or petroleum for installations based
upon product or process requirements.
Subsec. (l). Pub. L. 100-42, 1(c)(12)(C), struck out subsec. (l)
which related to granting, by Secretary of Energy, of permanent
exemptions for use of natural gas or petroleum for installations
necessary to meet scheduled equipment outages.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- 8353. General requirements for exemptions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Use of mixtures or fluidized bed combustion not feasible
Except in the case of an exemption under section 8352(b), (f), or (i)
of this title, the Secretary may grant a permanent exemption for a
powerplant under this part only --
(1) if the applicant has demonstrated that the use of a mixture of
natural gas or petroleum and coal (or other alternate fuels), for which
an exemption under section 8352(b) of this title would be available, is
not economically or technically feasible; and
(2) if the Secretary has not made a finding that the use of a method
of fluidized bed combustion of coal or an alternate fuel is economically
and technically feasible.
(b) No alternative power supply in case of a powerplant
(1) In the case of an exemption under section 8352(b) or (g) of this
title, the Secretary may not grant an exemption for an existing
powerplant unless he finds that the petitioner has demonstrated that
there is no alternative supply of electric power which is available
within a reasonable distance at a reasonable cost without impairing
short-run or long-run reliability of service and which can be obtained
by the petitioner, despite reasonable good faith efforts.
(2) The Secretary shall forward a copy of any such petition to the
Federal Energy Regulatory Commission promptly after it is filed with the
Secretary and shall consult with the Commission before making any
finding on such petition under paragraph (l).
(Pub. L. 95-620, title III, 313, Nov. 9, 1978, 92 Stat. 3313; Pub.
L. 100-42, 1(c)(10), (13), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (a). Pub. L. 100-42, 1(c)(13), struck out ''or
installation'' after ''powerplant'' in introductory provisions.
Pub. L. 100-42, 1(c)(10), which directed the substitution of ''or
(i)'' for ''(i), or (j)'' was executed by making the substitution for
''(i) or (j)'' to reflect the probable intent of Congress.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- 8354. Terms and conditions; compliance plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Terms and conditions generally
Any exemption from any prohibition under this part shall be on such
terms and conditions as the Secretary determines appropriate, including
terms and conditions requiring the use of effective fuel conservation
measures which are practicable and consistent with the purposes of this
chapter. In the case of any temporary exemption, the terms and
conditions (which may include a compliance plan meeting the requirements
of subsection (b) of this section) shall be designed to insure that upon
the expiration of such exemption, the persons and powerplant covered by
such exemption will comply with the applicable prohibitions.
(b) Compliance plans
A compliance plan meets the requirements of this subsection if it is
approved by the Secretary and --
(1) contains (A) a schedule indicating how compliance with applicable
prohibition of this chapter will occur and (B) evidence of binding
contracts for fuel, or facilities for the production of fuel, which
would allow for such compliance; and
(2) is revised at such times and to such extent as the Secretary may
require to reflect changes in circumstances.
(Pub. L. 95-620, title III, 314, Nov. 9, 1978, 92 Stat. 3314; Pub.
L. 100-42, 1(c)(10), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (a). Pub. L. 100-42 struck out ''or installation''
after ''powerplant''.
For effectiveness of exemption for certain electric powerplants as
prior to 180 days after Nov. 9, 1978, see section 902(a) of Pub. L.
95-620, set out as a note under section 8301 of this title.
42 USC -- SUBCHAPTER IV -- ADDITIONAL PROHIBITIONS; EMERGENCY
AUTHORITIES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8371, 8372. Repealed. Pub. L. 100-42, 1(a)(3), (4), May
21, 1987, 101 Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8371, Pub. L. 95-620, title IV, 401, Nov. 9, 1978, 92
Stat. 3314, authorized Secretary to prohibit by order the use of
natural gas as primary energy source in existing boilers used for space
heating purposes which consume 300 Mcf or more natural gas per day and
have capability to use petroleum as primary energy source, and in new
boilers to be used for space heating purposes which would be capable of
consuming 300 Mcf or more of natural gas per day.
Section 8372, Pub. L. 95-620, title IV, 402, Nov. 9, 1978, 92
Stat. 3315; Pub. L. 97-35, title X, 1024, Aug. 13, 1981, 95 Stat.
617, prohibited installation of outdoor lighting fixtures using natural
gas before Nov. 9, 1978, phased out distribution of natural gas to be
used in outdoor lighting other than that installed for residential use
before Nov. 9, 1978, and required distributors of natural gas to
disseminate information to customers to discourage use of natural gas
for outdoor lighting.
42 USC -- 8373. Conservation in Federal facilities, contracts, and
financial assistance programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Federal facilities
(1) Each Federal agency owning or operating any electric powerplant
shall comply with any prohibition, term, condition, or other substantial
or procedural requirement under this chapter, to the same extent as
would be the case if such powerplant were owned or operated by a
nongovernmental person.
(2) The President may, by order, exempt from the application of
paragraph (1) any powerplant owned or operated by any Federal agency, if
the President determines that --
(A) such use is in the paramount interest of the United States and
that the powerplant involved is a component of or is used solely in
connection with any weaponry, equipment, aircraft, vessels, vehicles or
other classes or categories of property which --
(i) are owned or operated by the Armed Forces of the United States
(including the Coast Guard) or by the National Guard of any State; and
(ii) are uniquely military in nature; or
(B) there is a lack of appropriation for such use but only if the
President specifically requested such appropriations as a part of the
budgetary process and the Congress failed to make available such
requested appropriation.
Such order shall not take effect until 60 days after a copy of such
order has been transmitted to each House of the Congress. The President
shall review each such determination every 2 years and submit a report
to the Congress on the results of such review.
(b) Federal contracts and financial assistance
(1) In order to implement the purposes of this chapter, the President
shall, not later than 30 days after the effective date of this chapter,
issue an order --
(A) requiring each Federal agency which is authorized to extend
Federal assistance by way of grant, loan, contract, or other form of
financial assistance, to promptly effectuate the purposes of this
chapter relating to the conservation of petroleum and natural gas, by
rule, in such contracting or assistance activities within 180 days after
issuance of such order, and
(B) setting forth procedures, sanctions, penalties, and such other
provisions as the President determines necessary to carry out such
requirement effectively, including a requirement that each agency
annually transmit to the President, and make available to the public, a
report on the actions taken and to be taken to implement such order.
(2) The President may exempt by order any specific grant, loan,
contract, or other form of financial assistance from all or part of the
provisions of this subsection if he determines such exemption is in the
national interest. The President shall notify the Congress in writing
of such exemption at least 60 days before it is effective.
(3) The President or any Federal agency may not use the authority
granted under paragraph (1) to require compliance, including the use of
coal, by any person or facility with any prohibition under other
sections of this chapter if such person or facility has been
specifically determined by the Secretary as subject to such prohibition
or has been exempted from the application of such prohibition.
(c) Annual report
The President shall annually submit a detailed report to each House
of the Congress on the actions taken by the President and each Federal
agency to implement this section, including the progress and problems
associated with implementation of this section.
(Pub. L. 95-620, title IV, 403, Nov. 9, 1978, 92 Stat. 3317; Pub.
L. 100-42, 1(c)(14), May 21, 1987, 101 Stat. 313.)
The effective date of this chapter, referred to in subsec. (b)(1),
is the effective date of Pub. L. 95-620. See section 901 of Pub. L.
95-620, set out as an Effective Date note under section 8301 of this
title.
1987 -- Subsec. (a)(1). Pub. L. 100-42, 1(c)(14)(A), struck out '',
major fuel-burning installation, or other unit'' after ''electric
powerplant'' and '', installation, or unit'' after ''such powerplant''.
Subsec. (a)(2). Pub. L. 100-42, 1(c)(14)(B), (C), struck out '',
installation, or other unit'' after ''powerplant'' in introductory
provisions, '', installation, or unit'' after ''powerplant'' in subpar.
(A), and last sentence which read as follows: ''Any powerplant,
installation, or other unit permitted to use natural gas or petroleum
under an exemption under this paragraph shall establish and carry out
effective fuel conservation measures, as determined by the Secretary.''
Subsec. (a)(3). Pub. L. 100-42, 1(c)(14)(D), struck out par. (3)
which read as follows: ''Any powerplant, installation, or unit owned or
operated by any such Federal agency shall be entitled to any exemption
by the Secretary to the same extent, in the same manner, and under the
same terms and conditions as would apply if it were owned or operated by
a nongovernmental person.''
Ex. Ord. No. 12185, Dec. 17, 1979, 44 F.R. 75093, provided:
By the authority vested in me as President of the United States of
America by Section 403(b) of the Powerplant and Industrial Fuel Use Act
of 1978 (92 Stat. 3318; Public Law 95-620) (42 U.S.C. 8373(b)) and
Section 301 of Title 3 of the United States Code, in order to encourage
additional conservation of petroleum and natural gas by recipients of
Federal financial assistance, it is hereby ordered as follows:
1-101. Each Federal agency, as that term is defined in Section
103(a)(25) of the Powerplant and Industrial Fuel Use Act of 1978 (92
Stat. 3297) (42 U.S.C. 8302(a)(25)), shall effectuate through its
financial assistance programs the purposes of that Act relating to the
conservation of petroleum and natural gas.
1-102. Each Federal agency which extends financial assistance shall
review those programs of financial assistance and identify those which
are most likely to offer opportunities for significant conservation of
petroleum and natural gas.
1-103. Within two months, and annually thereafter, each agency shall
publish for comment a list of those programs which it has identified as
likely to offer significant opportunity for conservation. The public
shall be given 60 days to submit comments, including suggestions for
rules which would effectuate the conservation purposes of the Act (see
Short Title note set out under 42 U.S.C. 8301).
1-104. After receiving public comment and suggestions, and after
consulting with the Director of the Office of Management and Budget,
each agency shall publish proposed rules designed to achieve
conservation of petroleum and natural gas in connection with the receipt
of financial assistance.
Proposed rules should be published within 30 days of the close of the
comment period under Section 1-103.
1-105. Final rules shall be adopted by each agency in accordance with
the provisions of Sections 102(b) (42 U.S.C. 8301(b)), 403(b) (42 U.S.C.
8373(b)) and 701(a) (42 U.S.C. 8411(a)) of the Powerplant and Industrial
Fuel Use Act of 1978, and the provisions of this Order, not later than
180 days from the date of this Order.
1-106. No one shall be awarded any financial assistance unless that
award complies with the provisions of the conservation rules adopted by
the agency pursuant to this Order.
1-107. To the extent permitted by law and where not inconsistent with
the financial assistance program, final rules may provide for the
reduction or suspension of financial assistance under any award. Such
reduction or suspension shall not be ordered until there has been an
opportunity for a hearing on the record, and shall last for such time as
the recipient fails to comply with the terms of the conservation rule.
1-108. No conservation rule shall be adopted which is inconsistent
with the statutory provisions establishing the financial assistance
program.
1-109. No conservation rule shall be used to enforce compliance with
any prohibition under the Act (see Short Title note set out under 42
U.S.C. 8301) against any person or facility which has been specifically
determined by the Secretary of Energy as subject to or exempt from a
prohibition under the Act. The conservation rules shall be used to
enforce other new ways of achieving the purposes of the Act related to
the conservation of petroleum and natural gas.
1-110. In order to assess the effectiveness of this program, each
agency shall annually prepare a report on its activities in accord with
Section 403(b)(1)(B) of the Act (42 U.S.C. 8373(b)). These reports shall
be submitted to the President through the Secretary of Energy.
1-111. The Secretary of Energy shall prepare for the President's
consideration and transmittal to the Congress the report required by
Section 403(c) of the Act (42 U.S.C. 8373(c)).
1-112. The Director of the Office of Management and Budget may issue
any rules, regulations, or orders he deems necessary to ensure the
implementation of this Order. The Director may exercise any of the
authority vested in the President by Section 403(b) of the Act (42
U.S.C. 8373(b)), and may redelegate such of that authority as he deems
appropriate to the head of any other agency.
Jimmy Carter.
Ex. Ord. No. 12217, June 18, 1980, 45 F.R. 41623, which established
the responsibilities and duties of Executive agencies for compliance
with this chapter, was revoked by Ex. Ord. No. 12437, Aug. 11, 1983,
48 F.R. 36801.
42 USC -- 8374. Emergency authorities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Coal allocation authority
(1) If the President --
(A) declares a severe energy supply interruption, as defined in
section 6202(8) of this title, or
(B) finds, and publishes such finding, that a national or regional
fuel supply shortage exists or may exist which the President determines
--
(i) is, or is likely to be, of significant scope and duration, and of
an emergency nature;
(ii) causes, or may cause, major adverse impact on public health,
safety, or welfare or on the economy; and
(iii) results, or is likely to result, from an interruption in the
supply of coal or from sabotage, or an act of God;
the President may, by order, allocate coal (and require the
transportation thereof) for the use of any electric powerplant or major
fuel-burning installation, in accordance with such terms and conditions
as he may prescribe, to insure reliability of electric service or
prevent unemployment, or protect public health, safety, or welfare.
(2) For purposes of this subsection, the term ''coal'' means
anthracite and bituminous coal and lignite (but does not mean any fuel
derivative thereof).
(b) Emergency prohibition on use of natural gas or petroleum
If the President declares a severe energy supply interruption, as
defined in section 6202(8) of this title, the President may, by order,
prohibit any electric powerplant or major fuel-burning installation from
using natural gas or petroleum, or both, as a primary energy source for
the duration of such interruption. Notwithstanding any other provision
of this section, any suspension of emission limitations or other
requirements of applicable implementation plans, as defined in section
7410(d) /1/ of this title, required by such prohibition shall be issued
only in accordance with section 7410(f) of this title.
(c) Emergency stays
The President may, by order, stay the application of any provision of
this chapter, or any rule or order thereunder, applicable to any new or
existing electric powerplant, if the President finds, and publishes such
finding, that an emergency exists, due to national, regional, or
systemwide shortages of coal or other alternate fuels, or disruption of
transportation facilities, which emergency is likely to affect
reliability of service of any such electric powerplant.
(d) Duration of emergency orders
(1) Except as provided in paragraph (3), any order issued by the
President under this section shall not be effective for longer than the
duration of the interruption or emergency, or 90 days, whichever is
less.
(2) Any such order may be extended by a subsequent order which the
President shall transmit to the Congress in accordance with section 6421
of this title. Such order shall be subject to congressional review
pursuant to such section.
(3) Notwithstanding paragraph (1), the effectiveness of any order
issued under this section shall not terminate under this subsection
during the 15-calendar-day period during which any such subsequent order
described in paragraph (2) is subject to congressional review under
section 6421 of this title.
(4) For purposes of this subsection, the provisions of this
subsection supersede the provisions of subchapter II of chapter 34 of
title 50.
(e) Delegation of authority prohibited
The authority of the President to issue any order under this section
may not be delegated. This subsection shall not be construed to prevent
the President from directing any Federal agency to issue rules or
regulations or take such other action, consistent with this section, in
the implementation of such order.
(f) Publication and reports to Congress of orders
Any order issued under this section shall be published in the Federal
Register. To the greatest extent practicable, the President shall,
before issuing any order under this section, but in no event later than
5 days after issuing such order, report to the Congress of his intention
to issue such order and state his reasons therefor.
(Pub. L. 95-620, title IV, 404, Nov. 9, 1978, 92 Stat. 3319; Pub.
L. 100-42, 1(c)(15), May 21, 1987, 101 Stat. 313.)
Section 7410(d) of this title, referred to in subsec. (b), was
repealed by Pub. L. 101-549, title I, 101(d)(4), Nov. 15, 1990, 104
Stat. 2409.
Subchapter II ( 1621 et seq.) of chapter 34 of title 50, referred to
in subsec. (d)(4), was in the original ''title II of the Act of
September 14, 1976 (Public Law 94-412)'', which is known as the National
Emergencies Act.
1987 -- Subsec. (g). Pub. L. 100-42 struck out subsec. (g) which
permitted use of natural gas or petroleum as primary energy source in
peakload powerplant or major fuel-burning installation during temporary
emergency condition (other than emergency conditions provided for under
section 8302(a)(15) of this title).
/1/ See References in Text note below.
42 USC -- 8375. Repealed. Pub. L. 100-42, 1(a)(5), May 21, 1987, 101
Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title IV, 405, Nov. 9, 1978, 92 Stat.
3320, prohibited increased use of petroleum as primary energy source in
existing electric powerplants which, during calendar year 1977, used
coal or another alternate fuel as primary energy source, unless permit
authorizing such increased use had been issued by Secretary.
42 USC -- SUBCHAPTER V -- SYSTEM COMPLIANCE OPTION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8391. Repealed. Pub. L. 100-42, 1(a)(6), May 21, 1987, 101
Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title V, 501, Nov. 9, 1978, 92 Stat.
3321, mandated that existing electric powerplants owned or operated by
an electric utility be considered in compliance with prohibitions under
subchapter III of this chapter relating to use of natural gas if there
is in effect an approved plan of system compliance for such utility, and
set forth requirements for approval of such plan.
42 USC -- SUBCHAPTER VI -- FINANCIAL ASSISTANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8401. Assistance to areas impacted by increased coal or
uranium production
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Designation of impacted areas
(1) In accordance with such criteria and guidelines as the Secretary
of Agriculture shall, by rule, prescribe, the Governor of any State may
designate any area within such State for the purposes of this section,
if he finds that --
(A) either (i) employment in coal or uranium production development
activities in such area has increased for the most recent calendar year
by 8 percent or more from the immediately preceding year or (ii)
employment in such activities will increase 8 percent or more per year
during each of the 3 calendar years beginning after the date of such
finding;
(B) such employment increase has required or will require substantial
increases in housing or public facilities and services or a combination
of both in such area; and
(C) the State and the local government or governments serving such
area lack the financial and other resources to meet any such increases
in public facilities and services within a reasonable time.
The Secretary of Agriculture shall prescribe a rule containing
criteria and guidelines for making a designation under this subsection,
after consultation with the Secretary of Labor and the Secretary of
Energy, not later than 180 days after the effective date of this
chapter.
(2) For purposes of paragraph (1)(C), increased revenues, including
severance tax revenues, royalties, and similar fees to the State and
local governments which are associated with the increase in coal or
uranium development activities and which are not prohibited from being
used under provisions of law in effect on November 9, 1978, shall be
taken into account in determining if a State or local government lacks
financial resources.
(3) The Secretary shall, after consultation with the Secretary of
Agriculture, approve any designation of an area under paragraph (1) only
if --
(A) the Governor of the State making the designation provides the
Secretary in writing with the data and information on which such
designation was made, together with such additional information as the
Secretary may require to carry out the purposes of this section; and
(B) the Secretary determines that the requirements of subparagraphs
(A), (B), and (C) of paragraph (1) have been met.
(b) Planning grants
(1) The Secretary of Agriculture may make a grant to any State in
which there is an area designated and approved under subsection (a) of
this section for the purposes of developing a plan for such area which
shall include determinations of --
(A) the anticipated level of coal or uranium production activities in
such area;
(B) the socio-economic impacts which have occurred or which are
reasonably projected to occur as a result of the increase in coal or
uranium production activities;
(C) the availability and location of resources within such area to
meet the increased needs resulting from socio-economic impacts
determined under subparagraph (B) (such as any increased need for
housing, or public facilities and services); and
(D) the nature and expense of measures necessary to meet within a
reasonable time the increased needs resulting from such impact for which
there are no resources reasonably available other than under this
section.
(2)(A) Any grant for developing a plan under this subsection shall be
for an amount equal to 100 percent of the costs of such plan, as
determined by the Secretary of Agriculture.
(B) The aggregate amount granted under this subsection in any fiscal
year may not exceed 10 percent of the total amount appropriated for
purposes of this section for such year.
(3) The Governor of a State receiving a grant under this subsection
for developing a plan shall submit a copy of such plan to the Secretary
of Agriculture as soon as practicable after it has been prepared.
(c) Land acquisition and development grants
(1) In the case of any real property --
(A) within an area for which a plan meeting the requirements of
subsection (b)(1) of this section has been approved;
(B) which is for housing or public facilities determined in such plan
as necessary due to an increase in employment due to coal or uranium
development activities;
(C) with respect to which the Secretary of Agriculture has determined
that the State and the local governments serving such area do not have
the financial resources to acquire or the legal authority to acquire by
condemnation; and
(D) with respect to which there has been an approval in writing by
the Governor of such State that the Secretary of Agriculture exercise
his authority under this paragraph;
the Secretary of Agriculture may acquire such real property or
interest therein, by purchase, donation, lease, or exchange. Property
so acquired shall be transferred to the State under such terms and
conditions as the Secretary of Agriculture deems appropriate. Such
terms and conditions shall provide for the reimbursement to the
Secretary of Agriculture for the fair market value of the property, as
determined by the Secretary of Agriculture. The value of any
improvement of such property made after such acquisition shall not be
taken into account in determining the fair market value of such property
under this subsection. Amounts so received by the Secretary of
Agriculture shall be deposited in the Treasury of the United States as
miscellaneous receipts.
(2) Any approval by a Governor of a State under paragraph (1)(D)
shall constitute a binding commitment of such State to accept the
property to be acquired and to provide reimbursement for the amount of
the fair market value of such property, as determined under paragraph
(1).
(3) The Secretary of Agriculture may acquire property under paragraph
(1) by condemnation only if he finds that --
(A) such property is not available by means other than condemnation
at a price which does not substantially exceed the fair market value of
such property;
(B) other real property is not similarly available which is within
the same designated area and which is suitable for the purposes to which
the property involved is to be applied; and
(C) the State and the local governments serving such area lack the
legal authority to acquire such property by condemnation.
(4)(A) In the case of any real property which meets the requirements
of subparagraphs (A), (B), and (C) of paragraph (1), the Secretary of
Agriculture may make a grant to the State in which such property is
located for the purposes of acquiring such property, and for any site
development which is consistent with the plan developed under subsection
(b) of this section.
(B) In the case of property acquired by the Secretary of Agriculture
under paragraph (1) and transferred to the State, the Secretary of
Agriculture may make a grant to such unit of government for the purposes
of site development which is consistent with such plan.
(C) Grants for real property acquisition or site development or both
under this paragraph may not exceed 75 percent of the costs thereof, as
determined by the Secretary of Agriculture.
(5) In the selection of real property for acquisition and in such
acquisition under this subsection, preference shall be given to real
property which the Secretary of Agriculture determines at such time to
be unoccupied or previously mined and abandoned.
(6)(A) Property held by the United States in trust for Indians or any
Indian tribe may not be acquired by condemnation under this section.
(B) No property within the National Forest System (as defined in
section 1609 /1/ of title 16) may be exchanged by the Secretary in any
acquisition under paragraph (1).
(d) General requirements regarding assistance
(1) Assistance under this section shall be provided only upon
application, which application shall contain such information as the
Secretary of Agriculture shall prescribe.
(2) The Secretary of Agriculture may make any grant under this
section in whole or in part to the local government or governments
serving an area designated and approved under subsection (a) of this
section, or to a council of local governments which includes one or more
local governments serving such area (in lieu of making such grant solely
to the State), if he has determined, after consultation with the
Governor of the State, that to do so would be appropriate.
(3) The Secretary of Agriculture shall prescribe, by rule, criteria
for the allocation of assistance under this section. Such criteria
shall give due weight to the magnitude of the employment increase
involved, the financial resources of the designated area, and the ratio
of the financial burden on the area to the resources available to such
area.
(4) Assistance under this section shall be provide only if the
Secretary of Agriculture is satisfied that --
(A) the amounts expended by the State and the local governments
involved for the same purposes for which such assistance is provided
will not be reduced; and
(B) the amount of such assistance does not reflect any amount for
which other Federal financial assistance is provided or on proper
application would be provided.
(e) ''Coal or uranium development activities'' and ''site
development'' defined
For the purposes of this section --
(1) The term ''coal or uranium development activities'' means the
production, processing, or transportation of coal or uranium.
(2) The term ''site development'' means necessary off-site
improvements, such as the construction of sewer and water connections,
construction of access roads, and appropriate site restoration, but does
not include any portion of the construction of housing or public
facilities.
(f) Reports
Any person regularly engaged in any coal or uranium development
activity within an area designated and approved under subsection (a) of
this section shall prepare and transmit a report to the Secretary of
Energy within 90 days after a written request to such person by the
Governor of the State in which such area is located. Such report shall
include --
(1) projected employment levels for such activity by such person
within such area during each of the following 3 calendar years;
(2) the projected increase in employees in such area to engage in
such activity during each of such calendar years;
(3) the projected quantity of coal (or uranium) to be produced,
processed, or transported by such person during each of such calendar
years; and
(4) actions such companies plan to take or are taking to provide
needed housing and other facilities for their employees directly or by
providing funds to the States or local communities for this purpose.
Copies of the report shall be provided to the Secretary of Energy and
the Secretary shall, subject to the provisions of section 796(d) of
title 15, provide the report to the Secretary of Agriculture, the
Governor, and the appropriate county or local officials and make it
available for public review.
(g) Administration
The Secretary of Agriculture shall carry out his responsibilities
under this section through the Farmers Home Administration and such
other agencies within the Department of Agriculture as he may determine
appropriate.
(h) Appropriations authorization
(1) /2/ There is hereby authorized to be appropriated to the
Secretary of Energy for purposes of this section, $60,000,000 for fiscal
year 1979 and $120,000,000 for fiscal year 1980. The Secretary of
Energy and the Secretary of Agriculture shall enter into an agreement
for the allocation of funds appropriated pursuant to this section for
carrying out their respective responsibilities under this section,
including the amounts for personnel and administrative costs, and upon
such agreement, the Secretary of Energy shall transfer to the Secretary
of Agriculture amounts determined under that agreement.
(i) Protection from certain hazardous actions
Federal agencies having responsibilities concerning the health and
safety of any person working in any coal, uranium, metal, or nonmetallic
mine regulated by any Federal agency shall interpret and utilize their
authorities fully and promptly, including the promulgation of standards
and regulations, to protect existing and future housing, property,
persons, and public facilities located adjacent to or near active and
abandoned coal, uranium, metal, and nonmetallic mines from actions
occurring at such activities that pose a hazard to such property or
persons.
(j) Reorganization
The authority of the Secretary of Agriculture and the authority of
the Secretary of Energy under this section may not be transferred to any
other Secretary or to any other Federal agency under chapter 9 of title
5 or under any other provision of law, other than under specific
provisions of a law enacted after November 9, 1978. The preceding
provisions of this subsection shall not preclude either Secretary from
delegating any such authority to any officer, employee, or entity within
such Secretary's department.
(Pub. L. 95-620, title VI, 601, Nov. 9, 1978, 92 Stat. 3323.)
The effective date of this chapter, referred to in subsec. (a)(1),
is the effective date of Pub. L. 95-620. See section 901 of Pub. L.
95-620, set out as an Effective Date note under section 8301 of this
title.
Section 1609 of title 16, referred to in subsec. (c)(6)(B), was in
the original ''section 10 of the Forest and Rangeland Renewable
Resources Planning Act of 1974''. Such section 10 is classified to
section 1608 of title 16 but has been editorially translated as section
1609 of title 16 as the probable intent of Congress in that the
properties defined as being in the National Forest System appear in
section 1609.
/1/ See References in Text note below.
/2/ So in original. Subsec. (h) enacted without a par. (2).
42 USC -- 8401a. ''Local government'' defined
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the purposes of section 8401 of this title, the term ''local
government'' shall include --
(1) any county, parish, city, town, township, village or other
general purpose political subdivision of a State with the power to levy
taxes and expend Federal, State, and local funds and exercise
governmental powers; and
(2) which (in whole or in part) is located in, or has authority over
the energy impacted area: Provided further, That such term shall
include a public or private nonprofit corporation, or a school, water,
sewer, highway, or other public special purpose district, authority, or
body, with the concurrence of the Governor: Provided further, That such
term shall be applicable to all applications for assistance received
since the effective date of section 8401 of this title.
(Pub. L. 96-514, title II, 201, Dec. 12, 1980, 94 Stat. 2975.)
For effective date of section 8401 of this title, referred to in par.
(2), see section 901 of Pub. L. 95-620, set out as an Effective Date
note under section 8301 of this title.
Section was enacted as part of the Department of the Interior and
Related Agencies Appropriations Act, 1981, and not as part of the
Powerplant and Industrial Fuel Use Act of 1978 which comprises this
chapter.
42 USC -- 8402. Loans to assist powerplant acquisitions of air
pollution control equipment
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority to make loans
The Secretary may, in accordance with the provisions of this section
and such rules and regulations as he shall prescribe, make a loan (and
may make a commitment to loan) to any person who owns or operates any
existing electric powerplant converting to coal or other alternate fuel
as its primary energy source after the effective date of this chapter
for the purpose of financing the purchase and installation of one or
more certified air pollution control devices for such electric
powerplant.
(b) Limitations and conditions
A loan made under this section shall --
(1) not exceed two-thirds of the cost of purchasing and installing
the certified air pollution control devices;
(2) have a maturity date not extending beyond 10 years after the date
such loan is made;
(3) bear interest at a rate not less than (A) a rate determined by
the Secretary of the Treasury, taking into consideration the average
market yield of outstanding Treasury obligations of comparable maturity,
plus (B) 1 percent;
(4) be made on the condition of payment to the Secretary of a loan
fee in an amount equal to (A) such insurance fee as the Secretary
determines is necessary to avoid a Federal revenue loss under this
section, plus (B) 1 percent of the loan amount; and
(5) be made only if the Secretary finds that --
(A) the financial assistance applied for is not otherwise available
from other Federal agencies;
(B) the applicant is unable to obtain sufficient funds on reasonable
terms and conditions from any other source;
(C) there is continued reasonable assurance of full repayment of the
principal, interest, and fees; and
(D) competition among private entities for the provision of air
pollution control devices for electric powerplants using coal as their
primary energy source to be assisted under this section will be in no
way limited or precluded.
(c) Allocation and priorities
In making loans or commitments to loan pursuant to this section, the
Secretary shall --
(1) allocate a minimum of 25 percent of available financial
assistance to existing small municipal and rural powerplants; and
(2) give priority consideration to requests for financial assistance
by existing electric powerplants subject to any prohibition under
subchapter III of this chapter (or under section 792 of title 15).
(d) Definitions
For purposes of this section --
(1) The term ''certified pollution control device'' means a new
identifiable device which --
(A) is used, in connection with a powerplant, to abate or control
atmospheric pollution by removing, altering, disposing, storing, or
preventing the emission of pollutants;
(B) the appropriate State air pollution control agency has certified
to the Administrator of the Environmental Protection Agency that such
device is needed to meet, and is in conformity with, State requirements
for abatement or control of atmospheric pollution or contamination;
(C) the Administrator of the Environmental Protection Agency has
certified to the Secretary as not duplicating or displacing existing air
pollution control devices with a remaining useful economic life in
excess of 2 years and as otherwise being in furtherance of the
requirements and purposes of the Clean Air Act (42 U.S.C. 7401 et seq.);
(D) does not constitute or include a building, or a structural
component of a building, other than a building used exclusively for the
purposes set forth in subparagraph (A); and
(E) the construction of which began after the effective date of this
chapter.
(2) The term ''small municipal or rural cooperative electric
powerplant'' means an electric generating unit, which --
(A) by design is not capable of consuming fuel at a fuel heat input
rate in excess of a rate determined appropriate by the Secretary by
rule; and
(B) is owned or operated by a municipality or a rural electric
cooperative.
(e) Records
(1) The Secretary shall require all persons receiving financial
assistance under this section to keep such records as the Secretary
shall prescribe, including records which fully disclose the amount and
disposition by such recipient of the proceeds of such assistance, the
total cost of the project or undertaking in connection with which such
assistance was given or used, the amount of that portion of the cost of
the project or undertaking supplied by other sources, and such other
records as will facilitate an effective audit.
(2) The Secretary and the Comptroller General of the United States,
or any of their duly authorized representatives, shall, until the later
of --
(A) the expiration of 3 years after completion of the project or
undertaking referred to in subsection (a) of this section, or
(B) full repayment of interest and principal on a loan made under
this section, occurs,
have access for the purposes of audit, evaluation, examination to any
books, documents, papers, and records of such receipts which in the
opinion of the Secretary or the Comptroller General may be related or
pertinent to such loan.
(f) Default
(1) If there is a default in any payment by the obligor of interest
or principal due under a loan entered into by the Secretary under this
section and such default has continued for 90 days, the Secretary has
the right to demand payment of such unpaid amount, unless the Secretary
finds that such default has been remedied, or a satisfactory plan to
remedy such default by the obligor has been accepted by the Secretary.
(2) In demanding payment of unpaid interest or principal by the
obligor, the Secretary has all rights specified in the loan-related
agreements with respect to any security which he held with respect to
the loan, including the authority to complete, maintain, operate, lease,
sell, or otherwise dispose of any property acquired pursuant to such
loan or related agreements.
(3) If there is a default under any loan, the Secretary shall notify
the Attorney General who shall take such action against the obligator or
other parties liable thereunder as is, in his discretion, necessary to
protect the interests of the United States. The holder of such loan
shall make available to the United States all records and evidence
necessary to prosecute any such suit.
(g) Deposit of receipts
Amounts received by the Secretary as principal, interest, fees,
proceeds from security acquired following default, or other amounts
received by the Secretary in connection with loans made under this
section shall be paid into the Treasury of the United States as
miscellaneous receipts.
(h) Authorization of appropriation
There are hereby authorized to be appropriated to the Secretary such
sums as may be necessary to carry out the purposes of this section, but
not to exceed $400,000,000 for fiscal year 1979 and $400,000,000 for
fiscal year 1980. Authority granted to the Secretary under subsection
(a) of this section may be exercised only to the extent as may be
provided in advance in appropriation Acts.
(Pub. L. 95-620, title VI, 602, Nov. 9, 1978, 92 Stat. 3327.)
The effective date of this chapter, referred to in subsecs. (a) and
(d)(1)(E), is the effective date of Pub. L. 95-620. See section 901 of
Pub. L. 95-620, set out as an Effective Date note under section 8301 of
this title.
The Clean Air Act, referred to in subsec. (d)(1)(C), is act July 14,
1955, ch. 360, as amended generally by Pub. L. 88-206, Dec. 17, 1963,
77 Stat. 392, and later by Pub. L. 95-95, Aug. 7, 1977, 91 Stat.
685. The Clean Air Act was originally classified to chapter 15B ( 1857
et seq.) of this title. On enactment of Pub. L. 95-95, the Act was
reclassified to chapter 85 ( 7401 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 7401 of this title and Tables.
42 USC -- SUBCHAPTER VII -- ADMINISTRATION AND ENFORCEMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- Part A -- Procedures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8411. Administrative procedures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General rulemaking
Except to the extent otherwise provided in this section or other
provisions of this chapter, rules prescribed under this chapter shall be
made in accordance with the procedures set forth in section 553 of title
5.
(b) Notices of rules and orders imposing prohibitions
Before the Secretary prescribes any rule or issues any order imposing
a prohibition under this chapter, he shall publish such proposed rule or
order in the Federal Register, together with a statement of the reasons
for such rule or order and, in the case of a rule, a detailed statement
of any special circumstances or characteristics required to be taken
into account in prescribing such rule. A copy shall be transmitted to
the person who operates any such powerplant required to be specifically
identified in such rule or order.
(c) Petitions for exemptions
(1) Any petition for an exemption from any prohibition under this
chapter shall be filed at such time and shall be in such form as the
Secretary shall by rule prescribe. The Secretary, upon receipt of such
petition, shall publish a notice thereof in the Federal Register
together with a statement of the reasons set forth in such a petition
for requesting such exemption, and provide a period of public comment of
at least 45 days for written comments thereon. Rules required under
this paragraph shall be prescribed not later than 120 days after
November 9, 1978.
(2) The Secretary, upon receipt of such petition, shall notify the
appropriate State agencies having primary authority to permit or
regulate the construction or operation of the electric powerplant which
is the subject of such petition, and, to the maximum extent practicable,
consult with such agencies.
(3) The Secretary, within 6 months after the period for public
comment and hearing applicable to any petition for an exemption, shall
issue a final order granting or denying the petition for such exemption,
except that the Secretary may extend such period to a specified date if
he publishes notice thereof in the Federal Register and includes with
such notice a statement of the reasons for such extension.
(d) Public comment on prohibitions and exemptions
(1) In the case of any proposed rule or order by the Secretary
imposing a prohibition or any petition for any order granting an
exemption under this chapter, any interested person shall be afforded an
opportunity to present oral data, views, and arguments at a public
hearing. At such hearing any interested person shall have an
opportunity to question --
(A) other interested persons who make oral presentations,
(B) employees and contractors of the United States who have made
written or oral presentations or who have participated in the
development of the proposed rule or order or in the consideration of
such petition, and
(C) experts and consultants who have provided information to any
person who makes an oral presentation and which is contained in or
referred to in such presentation,
with respect to disputed issues of material fact, except that the
Secretary may restrict questioning if he determines that such
questioning is duplicative or is not likely to result in a timely and
effective resolution of such issues. Any oral or documentary evidence
may be received, but the Secretary as a matter of policy shall provide
for the exclusion of irrelevant, immaterial, or unduly repetitious
evidence.
(2) A rule or order subject to this section may not be issued except
on consideration of the whole record or those parts thereof cited by a
party and supported by and in accordance with the reliable, probative,
and substantial evidence.
(e) Transcript
A transcript shall be kept of any public hearing made in accordance
with this section.
(f) Environmental Protection Agency comment
A copy of any proposed rule or order to be prescribed or issued by
the Secretary which imposes a prohibition under this chapter (other than
under section 8374 of this title), or a petition for an exemption (or
permit) under this chapter (other than under section 8374 of this
title), shall be transmitted by the Secretary to the Administrator of
the Environmental Protection Agency and the Secretary shall request such
agency to comment thereon within the period provided to the public
unless a longer period is provided under the Clean Air Act (42 U.S.C.
7401 et seq.). In any such case, the Administrator of the Environmental
Protection Agency shall be afforded the same opportunity to comment and
question as is provided other interested persons under subsection (d) of
this section.
(g) Repealed. Pub. L. 100-42, 1(c)(16)(E), May 21, 1987, 101 Stat.
313
(h) Coordination with other provisions of law
(1) Except as provided in sections 8412(c)(4), 8433(d)(5), and 8434
of this title, title V of the Department of Energy Organization Act (42
U.S.C. 7191, et seq.) shall not apply with respect to this chapter.
(2) The preceding provisions of this section shall not apply with
respect to any exercise of authority under section 8374 of this title.
(3) The procedures applicable under this chapter shall not --
(A) be considered to be modified or affected by any other provision
of law unless such other provision specifically amends this chapter (or
provisions of law cited herein), or
(B) be considered to be superseded by any other provision of law
unless such other provision does so in specific terms, referring to this
chapter, and declaring that such provision supersedes, in whole or in
part, the procedures of this chapter.
(Pub. L. 95-620, title VII, 701, Nov. 9, 1978, 92 Stat. 3329; Pub.
L. 100-42, 1(c)(16), May 21, 1987, 101 Stat. 313.)
The Clean Air Act, referred to in subsec. (f), is act July 14, 1955,
ch. 360, as amended generally by Pub. L. 88-206, Dec. 17, 1963, 77
Stat. 392, and later by Pub. L. 95-95, Aug. 7, 1977, 91 Stat. 685.
The Clean Air Act was originally classified to chapter 15B ( 1857 et
seq.) of this title. On enactment of Pub. L. 95-95, the Act was
reclassified to chapter 85 ( 7401 et seq.) of this title. For complete
classification of this Act to the Code, see Short Title note set out
under section 7401 of this title and Tables.
The Department of Energy Organization Act, referred to in subsec.
(h)(1), is Pub. L. 95-91, Aug. 4, 1977, 91 Stat. 567, as amended.
Title V of the Department of Energy Organization Act is classified
generally to subchapter V ( 7191 et seq.) of chapter 84 of this title.
For complete classification of this Act to the Code, see Short Title
note set out under section 7101 of this title and Tables.
1987 -- Subsec. (b). Pub. L. 100-42, 1(c)(16)(A), struck out
''(other than under section 8372 of this title)'' after ''this chapter''
and ''or installation'' after ''powerplant''.
Subsec. (c)(1). Pub. L. 100-42, 1(c)(16)(B)(i), (ii), struck out
''or for any permit under section 8375 of this title'' after ''this
chapter'' and ''or permit'' after ''such exemption''.
Subsec. (c)(2). Pub. L. 100-42, 1(c)(16)(B)(iii), struck out ''or,
where appropriate, major fuel-burning installation'' after
''powerplant''.
Subsec. (c)(3). Pub. L. 100-42, 1(c)(16)(B)(i), struck out ''or
permit'' after ''exemption'' in two places.
Subsec. (c)(4). Pub. L. 100-42, 1(c)(16)(B)(iv), struck out par.
(4) which read as follows: ''Any order for the approval of a system
compliance plan under section 8391 of this title, and any petition for
such an order, shall be treated for purposes of this subchapter the same
as an order (or petition) for an exemption.''
Subsec. (d)(1). Pub. L. 100-42, 1(c)(16)(C), struck out ''(or
permit)'' after ''an exemption'' and ''(other than under section 8372 of
this title)'' after ''under this chapter''.
Subsec. (f). Pub. L. 100-42, 1(c)(16)(D), struck out ''8372 or''
after ''(other than under section'' in two places.
Subsec. (g). Pub. L. 100-42, 1(c)(16)(E), struck out subsec. (g)
which read as follows: ''A copy of any proposed rule or order to be
prescribed or issued by the Secretary which imposes a prohibition under
this chapter (other than under section 8372 or 8374 of this title) with
respect to a major fuel-burning installation or a boiler subject to
section 8371 of this title or a petition by such installation or boiler
for an exemption (or permit) under this chapter (other than under
section 8372 or 8374 of this title), shall be transmitted by the
Secretary to the Federal Trade Commission and the Secretary shall
request such Commission to comment thereon within the period provided to
the public. In any such case, the Federal Trade Commission shall be
afforded the same opportunity to comment and question as is provided
other interested persons under subsection (d) of this section.''
42 USC -- 8412. Judicial review
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Publication and delay of prohibition or exemption to allow for
review
Any final rule or order prescribed by the Secretary imposing a
prohibition or granting an exemption (or permit) under this chapter
shall be published in the Federal Register, and shall not take effect
earlier than the 60th calendar day after such rule or order is
published.
(b) Publication of denial of exemption or permit
Any final order issued by the Secretary denying any petition for an
exemption or a permit under this chapter shall be published in the
Federal Register, together with the reasons for such action.
(c) Judicial review
(1) Any person aggrieved by any final rule or order referred to in
subsection (a) of this section or in section 8374 of this title, or by
the denial of a petition for an order granting an exemption (or permit)
referred to in subsection (b) of this section, may at any time before
the 60th day after the date such rule, order, or denial is published
under subsection (a) or (b) of this section, file a petition with the
United States court of appeals for the circuit wherein such person
resides, or has his principal place of business, for judicial review
thereof. A copy of the petition shall be forthwith transmitted by the
clerk of the court to the Secretary. The Secretary thereupon shall file
in the court the written submissions to, and transcript of, the written
or oral proceedings on which the rule or order was based as provided in
section 2112 of title 28.
(2) Upon the filing of the petition referred to in paragraph (1), the
court shall have jurisdiction to review the rule, order, or denial in
accordance with chapter 7 of title 5, and to grant appropriate relief as
provided in such chapter. No rule or order (or denial thereof) may be
affirmed unless supported by substantial evidence.
(3) The judgment of the court affirming or setting aside, in whole or
in part, any such rule, order, or denial shall be final, subject to
review by the Supreme Court of the United States upon certiorari or
certification as provided in section 1254 of title 28.
(4) Subject to the direction and control of the Attorney General, as
provided in section 519 of title 28, attorneys appointed by the
Secretary may appear for and represent the Secretary in any proceeding
instituted under this section in accordance with section 7192(c) of this
title.
(Pub. L. 95-620, title VII, 702, Nov. 9, 1978, 92 Stat. 3331.)
42 USC -- Part B -- Information and Reporting
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8421. Information
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary
For purposes of carrying out his responsibilities under this chapter,
the Secretary may require, under the authority of this chapter or any
other authority administered by him, any person owning, operating or
controlling any electric powerplant, or any other person otherwise
subject to this chapter to submit such information and reports of any
kind or nature directly to the Secretary necessary to implement the
provisions of this chapter, and insure compliance with the provisions of
this chapter, and any rule or order thereunder. The provisions of
section 796(d) of title 15 shall apply with respect to information
obtained under this section to the same extent and in the same manner as
it applies with respect to energy information obtained under section 796
of title 15.
(b) Authority of President and Federal Energy Regulatory Commission
In the case of responsibilities expressly given by this chapter to
the President or the Federal Energy Regulatory Commission, subsection
(a) of this section shall be applied as if the references to the
Secretary were references to the President or the Federal Energy
Regulatory Commission, as the case may be.
(c) Natural gas usage by electric utilities
(1) For purposes of section 8374(b) of this title and other emergency
authorities, the Secretary shall obtain data necessary to determine --
(A) within 6 months after August 13, 1981, the total quantities of
natural gas used as a primary energy source by each electric utility
during calendar year 1977, and
(B) on a semiannual basis, the total quantities of natural gas used
as a primary energy source during the previous 6-month period by each
electric utility.
(2) The Secretary shall include in each annual report to the Congress
under section 8482 of this title a summary of information received by
the Secretary under this subsection.
(Pub. L. 95-620, title VII, 711, Nov. 9, 1978, 92 Stat. 3332; Pub.
L. 97-35, title X, 1021(b), Aug. 13, 1981, 95 Stat. 615; Pub. L.
100-42, 1(c)(17), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (a). Pub. L. 100-42 struck out ''or major
fuel-burning installation'' after ''powerplant''.
1981 -- Subsec. (c). Pub. L. 97-35 added subsec. (c).
Amendment by Pub. L. 97-35 effective Aug. 13, 1981, see section
1038 of Pub. L. 97-35, set out as a note under section 6240 of this
title.
42 USC -- 8422. Compliance report
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Generally
Any person owning, operating, or proposing to operate one or more
existing electric powerplants required to come into compliance with the
prohibitions of this chapter shall on or before January 1, 1980, and
annually thereafter, submit to the Secretary a report identifying all
such existing electric powerplants owned or operated by such person.
Such report shall --
(1) set forth the anticipated schedule for compliance with the
applicable requirements and prohibitions by each such electric
powerplant;
(2) indicate proposed or existing contracts or other commitments or
good faith negotiations for such contracts or commitments for coal or
another alternate fuel, equipment, or combinations thereof, which would
enable such powerplant to comply with such prohibitions; and
(3) identify those electric powerplants, if any, for which
application for temporary or permanent exemption from the prohibitions
of this chapter may be filed.
(b) Report on implementation of section 8484 plan
Any electric utility required to submit a conservation plan under
section 8484 of this title shall annually submit to the Secretary a
report identifying the steps taken during the preceding year to
implement such plan.
(Pub. L. 95-620, title VII, 712, Nov. 9, 1978, 92 Stat. 3332; Pub.
L. 97-35, title X, 1023(b), Aug. 13, 1981, 95 Stat. 617.)
1981 -- Pub. L. 97-35 designated existing provisions as subsec. (a)
and added subsec. (b).
Amendment by Pub. L. 97-35 effective Aug. 13, 1981, see section
1038 of Pub. L. 97-35, set out as a note under section 6240 of this
title.
42 USC -- Part C -- Enforcement
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8431. Notice of violation; other general provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Notice of violation
(1) Whenever, on the basis of any information available, the
Secretary finds that any person is in violation of any provision of this
chapter, or any rule or order thereunder, the Secretary shall issue
notice of such violation. Any notice issued under this subsection shall
be in writing and shall state with reasonable specificity the nature of
the violation.
(2) Paragraph (1) shall not be construed to relieve any person of
liability under the other provisions of this chapter for any act or
omission occurring before the issuance of notice.
(b) Individual liability of corporate personnel
Any individual director, officer, or agent of a corporation who
willfully authorizes, orders, or performs any of the acts or practices
constituting in whole or in part a violation of this chapter, or any
rule or order thereunder, shall be subject to penalties under this
section without regard to any penalties to which the corporation may be
subject, except that no such individual director, officer, or agent
shall be subject to imprisonment under section 8432 of this title,
unless he also knew of noncompliance by the corporation or had received
from the Secretary notice of noncompliance by the corporation.
(c) Repealed. Pub. L. 100-42, 1(c)(18), May 21, 1987, 101 Stat.
313
(d) Federal agencies
The provisions of sections 8432 and 8433 of this title shall not be
construed to apply to any Federal agency or officer or employee thereof
acting in his official capacity.
(Pub. L. 95-620, title VII, 721, Nov. 9, 1978, 92 Stat. 3333; Pub.
L. 100-42, 1(c)(18), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (c). Pub. L. 100-42 struck out subsec. (c) which
read as follows: ''No person shall be subject to any penalty under this
part with respect to the operation of any powerplant in excess of that
allowed by an exemption granted on the basis of the operation of such
powerplant as a peakload powerplant if it is demonstrated to the
Secretary that such operation was necessary to meet peakload demand and
that other peakload powerplants within the same system as such
powerplant --
''(1) were unavailable for service --
''(A) due to unit or system outages; or
''(B) because operation of such other powerplants would result in
their exceeding the hours of operation allowed under an exemption; and
''(2) have not been operated other than to meet peakload demand.''
42 USC -- 8432. Criminal penalties
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Any person who willfully violates any provision of this chapter, or
any rule or order thereunder, shall be subject to a fine of not more
than $50,000, or to imprisonment for not more than one year, or both,
for each violation.
(Pub. L. 95-620, title VII, 722, Nov. 9, 1978, 92 Stat. 3333; Pub.
L. 100-42, 1(c)(19), May 21, 1987, 101 Stat. 313.)
1987 -- Pub. L. 100-42 struck out ''(other than section 8372 of this
title)'' after ''this chapter''.
42 USC -- 8433. Civil penalties
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General civil penalty
Any person who violates any provision of this chapter, or rule or
order thereunder, shall be subject to a civil penalty, which shall be
assessed by the Secretary, of not more than $25,000 for each violation.
Each day of violation shall constitute a separate violation.
(b) Civil penalty for operation in excess of exemption
In the case of any electric powerplant granted an exemption, any
person who operates such powerplant during any 12-calendar-month period
in excess of that authorized in such exemption, shall be liable for a
civil penalty, which shall be assessed by the Secretary. The amount of
such civil penalty may not exceed $10 per barrel of petroleum or $3 per
Mcf of natural gas used in operation of such powerplant in excess of
that authorized in such exemption.
(c) Repealed. Pub. L. 100-42, 1(c)(20)(C), May 21, 1987, 101 Stat.
314
(d) Assessment
(1) Before issuing an order assessing a civil penalty against any
person under this chapter, the Secretary shall provide to such person
notice of the proposed penalty. Such notice shall inform such person of
his opportunity to elect in writing within 30 days after the date of
receipt of such notice to have the procedures of paragraph (3) (in lieu
of those of paragraph (2)) apply with respect to such assessment.
(2)(A) Unless an election is made within 30 calendar days after
receipt of notice under paragraph (1) to have paragraph (3) apply with
respect to such penalty, the Secretary shall assess the penalty, by
order, after a determination of violation has been made on the record
after an opportunity for an agency hearing pursuant to section 554 of
title 5 before an administrative law judge appointed under section 3105
of such title 5. Such assessment order shall include the administrative
law judge's findings and the basis for such assessment.
(B) Any person against whom a penalty is assessed under this
paragraph may, within 60 calendar days after the date of the order of
the Secretary assessing such penalty, institute an action in the United
States court of appeals for the appropriate judicial circuit for
judicial review of such order in accordance with chapter 7 of title 5.
The court shall have jurisdiction to enter a judgment affirming,
modifying, or setting aside in whole or in part, the order of the
Secretary, or the court may remand the proceeding to the Secretary for
such further action as the court may direct.
(3)(A) In the case of any civil penalty with respect to which the
procedures of this paragraph have been elected, the Secretary shall
promptly assess such penalty, by order, after the date of the receipt of
the notice under paragraph (1) of the proposed penalty.
(B) If the civil penalty has not been paid within 60 calendar days
after the assessment order has been made under subparagraph (A), the
Secretary shall institute an action in the appropriate district court of
the United States for an order affirming the assessment of the civil
penalty. The court shall have authority to review de novo the law and
the facts involved, and shall have jurisdiction to enter a judgment
enforcing, modifying, and enforcing as so modified, or setting aside in
whole or in part, such assessment.
(C) Any election to have this paragraph apply may not be revoked
except with the consent of the Secretary.
(4) If any person fails to pay an assessment of a civil penalty after
it has become a final and unappealable order under paragraph (2), or
after the appropriate district court has entered final judgment in favor
of the Secretary under paragraph (3), the Secretary shall institute an
action to recover the amount of such penalty in any appropriate district
court of the United States. In such action, the validity and
appropriateness of such final assessment order or judgment shall not be
subject to review.
(5)(A) Notwithstanding the provisions of title 28, or of section
7192(c) of this title, the Secretary shall be represented by the general
counsel of the Department of Energy (or any attorney or attorneys within
the Department of Energy designated by the Secretary) who shall
supervise, conduct, and argue any civil litigation to which paragraph
(3) of this subsection applies (including any related collection action
under paragraph (4)) in a court of the United States or in any other
court, except the Supreme Court. However, the Secretary or the general
counsel shall consult with the Attorney General concerning such
litigation, and the Attorney General shall provide, on request, such
assistance in the conduct of such litigation as may be appropriate.
(B) Subject to the provisions of section 7192(c) of this title, the
Secretary shall be represented by the Attorney General, or the Solicitor
General, as appropriate, in actions under this subsection, except to the
extent provided in subparagraph (A) of this paragraph.
(C) Section 7172(d) of this title shall not apply with respect to the
functions of the Secretary under this subsection.
(Pub. L. 95-620, title VII, 723, Nov. 9, 1978, 92 Stat. 3333; Pub.
L. 100-42, 1(c)(20), May 21, 1987, 101 Stat. 313.)
1987 -- Subsec. (a). Pub. L. 100-42, 1(c)(20)(A), struck out
''(other than section 8372 of this title)'' after ''this chapter''.
Subsec. (b). Pub. L. 100-42, 1(c)(20)(B), (C), struck out ''(1)''
before ''In the case of'' and struck out par. (2) which read as
follows: ''Any person operating a major fuel-burning installation
granted an exemption which, for any 12-calendar-month period, uses
petroleum or natural gas, or both, in excess of that use allowed by such
exemption shall be liable for a civil penalty, which shall be assessed
by the Secretary. The amount of such civil penalty may not exceed $10
per barrel of petroleum or $3 per Mcf of natural gas which was used in
excess of that use allowed by such exemption.''
Subsec. (c). Pub. L. 100-42, 1(c)(20)(C), struck out subsec. (c)
which set forth civil penalties for violation of section 8372 of this
title.
42 USC -- 8434. Injunctions and other equitable relief
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Whenever it appears to the Secretary that any person has engaged, is
engaged, or is about to engage in acts or practices constituting a
violation of this chapter, or any rule or order thereunder, a civil
action, /1/ may be brought, in accordance with section 7192(c) of this
title, in the appropriate district court of the United States to enjoin
such acts or practices, and, upon a proper showing, the court shall
grant, without bond, mandatory or prohibitive injunctive relief,
including interim equitable relief.
(Pub. L. 95-620, title VII, 724, Nov. 9, 1978, 92 Stat. 3335.)
/1/ So in original. The comma probably should not appear.
42 USC -- 8435. Citizens suits
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General rule
Except as otherwise provided in subsection (b) of this section, any
aggrieved person may commence a civil action for mandatory or
prohibitive injunctive relief, including interim equitable relief,
against the Secretary or the head of any Federal agency which has a
responsibility under this chapter if there is an alleged failure of the
Secretary or such agency head to perform any act or duty under this
chapter which is not discretionary. The United States district courts
shall have jurisdiction over actions brought under this section, without
regard to the amount in controversy or the citizenship of the parties.
(b) Notice to Secretary or agency head
No action may be commenced under subsection (a) of this section
before the 60th calendar day after the date on which the plaintiff has
given notice of such action to the Secretary or the agency head
involved. Notice under this subsection shall be given in such manner as
the Secretary shall prescribe by rule.
(c) Authority of Secretary to intervene
In any action brought under subsection (a) of this section, the
Secretary, if not a party, may intervene as a matter of right.
(d) Costs of litigation
The court, in issuing any final order in any action brought under
subsection (a) of this section, may award costs of litigation (including
reasonable attorney and expert witness fees) to any party, whenever the
court determines such award is appropriate.
(e) Other remedies to remain available
Nothing in this section shall restrict any right which any aggrieved
person (or class of aggrieved persons) may have under any statute or
common law to seek enforcement of this chapter or any rule thereunder,
or to seek any other relief (including relief against the Secretary or
the agency head involved).
(Pub. L. 95-620, title VII, 725, Nov. 9, 1978, 92 Stat. 3335.)
42 USC -- Part D -- Preservation of Contractual Rights
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8441. Preservation of contractual interest
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Right to transfer contractual interests
(1) If any person receives natural gas, the use of which is
prohibited by the provisions of subchapter III of this chapter or any
rule or order thereunder, and if such natural gas is received pursuant
to a contract in effect on April 20, 1977, between such person and any
other person, such person receiving such natural gas may transfer all or
any portion of such person's contractual interests under such contract
and receive consideration from the person to whom such contractual
interests are transferred. The consideration authorized by this
subsection shall not exceed the maximum consideration established as
just compensation under this section.
(2) Any person who would have transported or distributed the natural
gas subject to a contract with respect to which contractual interests
are transferred pursuant to paragraph (1) shall be entitled to receive
just compensation (as determined by the Commission) from the person to
whom such contractual interests are transferred.
(b) Determination of consideration
(1) The Commission shall, by rule, establish guidelines for the
application on a regional or national basis (as may be appropriate) of
the criteria specified in subsection (e)(1) of this section to determine
the maximum consideration permitted as just compensation under this
section.
(2) The person transferring contractual interests pursuant to
subsection (a)(1) of this section and the person to whom such interests
are transferred may agree on the amount of, or method of determining,
the consideration to be paid for such transfer and certify such
consideration to the Commission. Except as provided in paragraph (4),
such agreed-upon consideration shall not exceed the consideration
determined by application of the guidelines prescribed by the Commission
under paragraph (1).
(3) In the event the person transferring contractual interests
pursuant to subsection (a)(1) of this section and the person to whom
such interests are to be transferred fail to agree, under paragraph (2),
on the amount of, or method of determining, the consideration to be paid
for such transfer, the Commission may, at the request of both such
persons, prescribe the amount of, or method of determining, such
consideration. Upon the request of either such person, the Commission
shall make such determination on the record, after an opportunity for
agency hearing. In any such latter case, the determination of the
Commission shall be binding upon the party requesting that such
determination be made on the record of the agency hearing. The
consideration prescribed by the Commission shall not exceed the maximum
consideration permitted as just compensation under this section. In
prescribing the amount of, or method of determining, consideration under
this paragraph, to the maximum extent practicable, the Commission shall
utilize any liquidated damages provision set forth in the applicable
contract, but in no event may the Commission prescribe consideration in
excess of the maximum consideration permitted as just compensation under
this section.
(4) In the event that the consideration agreed upon under paragraph
(2) exceeds the consideration determined by application of the
guidelines prescribed by the Commission under paragraph (1), the
Commission may approve such agreed-upon consideration if the Commission
determines such agreed-upon consideration does not exceed the maximum
consideration permitted as just compensation under this section.
(5) If consideration is agreed upon under paragraph (2) and such
consideration exceeds the consideration determined by application of the
guidelines prescribed under paragraph (1), but does not exceed the
maximum consideration permitted as just compensation under this section,
the Commission may not require a refund of any portion of the
agreed-upon consideration paid with respect to deliveries of natural gas
occurring prior to the Commission's action under paragraph (4) approving
or disapproving such consideration unless the Commission determines --
(A) such agreed-upon consideration was fraudulently established;
(B) the processing of the request for approval of such agreed-upon
consideration under paragraph (4) was willfully delayed by a party to
the transfer; or
(C) such agreed-upon consideration exceeds the maximum consideration
permitted as just compensation under this section.
(c) Restrictions on transfers unenforceable
(1) Any provision of any contract, which prohibits any transfer
authorized by subsection (a)(1) of this section or terminates such
contract on the basis of such transfer, shall be unenforceable in any
court of the United States and in any court of any State.
(2) No State may enforce any prohibition on any transfer authorized
by subsection (a)(1) of this section.
(d) Contractual obligations unaffected
The person acquiring contractual interests transferred pursuant to
subsection (a)(1) of this section shall assume the contractual
obligations which the person transferring such contractual interests has
under such contract. This subsection shall not relieve the person
transferring such contractual interests from any contractual obligation
of such person under such contract if such obligation is not performed
by the person acquiring such contractual interests.
(e) Definitions
For purposes of this section --
(1) The term ''just compensation'', when used with respect to any
transfer of contractual interests authorized by subsection (a)(1) of
this section, means the maximum amount of, or method of determining,
consideration which does not exceed the amount by which --
(A) the reasonable costs (excluding capital costs) incurred, during
the remainder of the period of the contract with respect to which
contractual interests are transferred under subsection (a)(1) of this
section, in direct association with the use of a fuel, other than
natural gas, as a primary energy source by the applicable existing
electric powerplant, exceed
(B) the price of natural gas under such contract during such period.
For purposes of subparagraph (A), the reasonable costs associated
with the use of a fuel, other than natural gas, as a primary energy
source shall include an allowance for the amortization, over the
remaining useful life, of the undepreciated value of depreciable assets
located on the premises containing such electric powerplant, which
assets were directly associated with the use of natural gas and are not
usable in connection with the use of such other fuel.
(2) The term ''just compensation'', when used with respect to
subsection (a)(2) of this section, means an amount equal to any loss of
revenue, during the remaining period of the contract with respect to
which contractual interests are transferred pursuant to subsection
(a)(1) of this section, to the extent such loss (A) is directly incurred
by reason of the discontinuation of the transportation or distribution
of natural gas resulting from the transfer of contractual interests
pursuant to subsection (a)(1) of this section, and (B) is not offset by
revenues derived from other transportation or distribution which would
not have occurred if such contractual interests had not been
transferred.
(3) The term ''contractual interests'', with respect to a contract
described in subsection (a)(1) of this section, includes the right to
receive natural gas as affected by any applicable curtailment plan filed
with the Commission or the appropriate State regulatory authority.
(4) The term ''State'' means each of the several States, the District
of Columbia, Puerto Rico, any territory or possession of the United
States, and any political subdivision of any of the foregoing.
(5) The term ''interstate pipeline'' means any person engaged in the
transportation of natural gas in interstate commerce subject to the
jurisdiction of the Commission under the Natural Gas Act (15 U.S.C. 717
et seq.).
(6) The term ''Commission'' means the Federal Energy Regulatory
Commission.
(7) The term ''contract'', when used with respect to a contract for
receipt of natural gas, which contract was in existence on April 20,
1977, does not include any renewal or extension occurring after such
date unless such renewal or extension occurs pursuant to the exercise of
an option by the person receiving natural gas under such contract.
(f) Coordination with Natural Gas Act
(1) Consideration paid by any interstate pipeline pursuant to this
section shall be deemed just and reasonable for purposes of sections 4,
5, and 7 of the Natural Gas Act (15 U.S.C. 717c, 717d, 717f). The
Commission shall not deny a passthrough by such interstate pipeline of
such consideration based upon the amount of such consideration paid
pursuant to this section.
(2) No person shall be subject to the jurisdiction of the Commission
under the Natural Gas Act (15 U.S.C. 717 et seq.) or to regulation as a
common carrier under any provision of Federal or State law solely by
reason of making any sale, or engaging in any transportation, of natural
gas with respect to which the transfer of contractual interests is
authorized under subsection (a)(1) of this section.
(3) Nothing in this section shall exempt from the jurisdiction of the
Commission under the Natural Gas Act (15 U.S.C. 717 et seq.) any
transportation in interstate commerce of natural gas, any sale in
interstate commerce for resale of natural gas, or any person engaged in
such transportation or such sale to the extent such transportation, sale
or person is subject to the juridiction /1/ of the Commission under such
Act without regard to the transfer of contractual interests under
subsection (a)(1) of this section.
(4) Nothing in this section shall exempt any person from any
obligation to obtain a certificate of public convenience and necessity
for the transportation by an interstate pipeline of natural gas with
respect to which the transfer of contractual interests is authorized
under subsection (a)(1) of this section. The Commission shall not deny
such a certificate for the transportation in interstate commerce of
natural gas based upon the amount of consideration paid pursuant to this
section.
(g) Volume limitation
No supplier of natural gas under any contract, with respect to which
contractual interests have been transferred under subsection (a)(1) of
this section, shall be required to supply natural gas during any
relevant period in volume amounts which exceed the lesser of --
(1) the volume determined by reference to the maximum delivery
obligations specified in such contract;
(2) the volume which such supplier would have been required to
supply, under the curtailment plan in effect for such supplier, to the
person, who transferred contractual interests under subsection (a)(1) of
this section, if no such transfer had occurred;
(3) the volume which would have been delivered, or for which payment
would have been made, pursuant to such contract but for the prohibition
on the use of such natural gas under subchapter III of this chapter or
any rule or order thereunder; and
(4) the volume actually delivered or for which payment would have
been made pursuant to such contract during the 12-calendar-month period
ending immediately before such transfer of contractual interests
pursuant to this section.
(h) Judicial review
Any action by the Commission under this section is subject to
judicial review in accordance with chapter 7 of title 5.
(Pub. L. 95-620, title VII, 731, Nov. 9, 1978, 92 Stat. 3336; Pub.
L. 100-42, 1(c)(21), May 21, 1987, 101 Stat. 314.)
The Natural Gas Act, referred to in subsecs. (e)(5) and (f)(2), (3),
is act June 21, 1938, ch. 556, 52 Stat. 821, as amended, which is
classified generally to chapter 15B ( 717 et seq.) of Title 15, Commerce
and Trade. For complete classification of this Act to the Code, see
section 717w of Title 15 and Tables.
1987 -- Subsec. (a)(1). Pub. L. 100-42, 1(c)(21)(A), struck out
reference to subchapter II of this chapter.
Subsec. (e)(1). Pub. L. 100-42, 1(c)(21)(B), struck out ''or major
fuel-burning installation'' after ''powerplant'' in subpar. (A) and
''or major fuel-burning installation'' after ''powerplant'' in last
sentence.
Subsec. (g)(3). Pub. L. 100-42, 1(c)(21)(A), struck out reference to
subchapter II of this chapter.
/1/ So in original. Probably should be ''jurisdiction''.
42 USC -- Part E -- Studies
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8451. National coal policy study
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Study
The President, acting through the Secretary and the Administrator of
the Environmental Protection Agency, shall make a full and complete
investigation and study of the alternative national uses of coal
available in the United States to meet the Nation's energy requirements
consistent with national policies for the protection and enhancement of
the quality of the environment and for economic recovery and full
employment. In particular the study should identify and evaluate --
(1) current and prospective coal requirements of the United States;
(2) current and prospective voluntary and mandatory energy
conservation measures and their potential for reduction of the United
States coal requirements;
(3) current and prospective coal resource production, transportation,
conversion, and utilization requirements;
(4) the extent and adequacy of coal research, development, and
demonstration programs being carried out by Federal, State, local, and
nongovernmental entities (including financial resources, manpower, and
statutory authority);
(5) programs for the development of coal mining technologies which
increase coal production and utilization while protecting the health and
safety of coal miners;
(6) alternative strategies for meeting anticipated United States coal
requirements, consistent with achieving other national goals, including
national security and environmental protection;
(7) existing and prospective governmental policies and laws affecting
the coal industry with the view of determining what, if any, changes in
and implementation of such policies and laws may be advisable in order
to consolidate, coordinate, and provide an effective and equitable
national energy policy consistent with other national policies; and
(8) the most efficient use of the Nation's coal resources considering
economic (including capital and consumer costs, and balance of
payments), social (including employment), environmental, technological,
national defense, and other aspects.
(b) Report
Within 18 months after the effective date of this chapter, the
President shall submit to the Congress a report with respect to the
studies and investigations, together with findings and recommendations
in order that the Congress may have such information in a timely
fashion. Such report shall include the President's determinations and
recommendations with respect to --
(1) the Nation's projected coal needs nationally and regionally, for
the next 2 decades with particular reference to electric power;
(2) the coal resources available or which must be developed to meet
those needs, including, as applicable, the programs for research,
development, and demonstration necessary to provide technological
advances which may greatly enhance the Nation's ability to efficiently
and economically utilize its fuel resources, consistent with applicable
environmental requirements;
(3) the air, water, and other pollution created by coal requirements,
including any programs to overcome promptly and efficiently any
technological or economic barriers to the elimination of such pollution;
(4) the existing policies and programs of the Federal Government and
of State and local governments, which have any significant impact on the
availability, production or efficient and economic utilization of coal
resources and on the ability to meet the Nation's energy needs and
environmental requirements; and
(5) the adequacy of various transportation systems, including roads,
railroads, and waterways to meet projected increases in coal production
and utilization.
Before submitting a report to the Congress under subsection (b) of
this section, the President shall publish in the Federal Register a
notice and summary of the proposed report, make copies of such report
available, and accord interested persons an opportunity (of not less
than 90 days' duration) to present written comments; and shall make
such modifications of such report as he may consider appropriate on the
basis of such comments.
(c) Authorization of appropriations
There is hereby authorized to be appropriated to the Secretary for
allocation between the Department of Energy and the Environmental
Protection Agency for fiscal years 1979 and 1980, not to exceed
$18,000,000, for use in carrying out the purposes of this section.
(Pub. L. 95-620, title VII, 741, Nov. 9, 1978, 92 Stat. 3339.)
The effective date of this chapter, referred to in subsec. (b), is
the effective date of Pub. L. 95-620. See section 901 of Pub. L.
95-620, set out as an Effective Date note under section 8301 of this
title.
42 USC -- 8452. Repealed. Pub. L. 97-375, title I, 106(d), Dec. 21,
1982, 96 Stat. 1820
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title VII, 742, Nov. 9, 1978, 92 Stat.
3341, related to an investigation by the Secretary of the performance
and competition of the coal industry, to be reported to Congress in
interim reports with a final report to be submitted not later than
eighteen months after Nov. 9, 1978.
42 USC -- 8453. Impact on employees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Evaluation
The Secretary shall conduct continuing evaluations of potential loss
or shifts of employment which may result from any prohibition under this
chapter, including, if appropriate, investigating threatened plant
closures or reductions in employment allegedly resulting from such
prohibition. The results of such evaluations and each investigation
shall promptly be made available to the public.
(b) Investigation and hearings
On a written request filed with the Secretary by or on behalf of any
employee who is discharged or laid off, threatened with discharge or
layoff, or otherwise discriminated against, by any person because of the
alleged effects of any such prohibition, the Secretary shall investigate
the matter and, at the request of any party, shall hold public hearings,
after not less than 30 days notice, at which the Secretary shall require
the parties, including any employer involved, to present information on
the actual or potential effect of such prohibition on employment and on
any alleged employee discharge, layoff, or other discrimination relating
to prohibitions and the detailed reasons or justification therefor. At
the completion of such investigation, the Secretary shall make findings
of fact as to the effect of such prohibition on employment and on the
alleged employee discharge, layoff, or discrimination and shall make
such recommendations as he deems appropriate. Such report, findings,
and recommendations shall be available to the public. The Secretary of
Labor shall participate in each such investigation.
(c) Rule of construction
Nothing in this section shall be construed to require or authorize
the Secretary to modify or withdraw any prohibition under this chapter.
(Pub. L. 95-620, title VII, 743, Nov. 9, 1978, 92 Stat. 3342.)
42 USC -- 8454. Study of compliance problem of small electric utility
systems
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Study
The Secretary shall conduct a study of the problems of compliance
with this chapter experienced by those electric utility systems which
have a total system generating capacity of less than 2,000 megawatts.
The Secretary shall report his findings and his recommendations to the
Congress not later than 2 years after the effective date of this
chapter.
(b) Authorization of appropriations
There is authorized to be appropriated to the Secretary for the
fiscal year 1979 not to exceed $500,000 to carry out the provisions of
this section.
(Pub. L. 95-620, title VII, 744, Nov. 9, 1978, 92 Stat. 3343.)
The effective date of this chapter, referred to in subsec. (a), is
the effective date of Pub. L. 95-620. See section 901 of Pub. L.
95-620, set out as an Effective Date note under section 8301 of this
title.
42 USC -- 8455. Emissions monitoring
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Monitoring program
The Administrator of the Environmental Protection Agency shall
conduct, on a continuing basis, a program of monitoring, to the greatest
extent possible and in accordance with the applicable authorities and
provisions of the Clean Air Act (42 U.S.C. 7401 et seq.), the emissions
from new and existing electric powerplants required to use coal or other
alternate fuels by reason of this chapter or otherwise using coal or
other alternate fuels and the effect thereof on the public health,
safety, and welfare and the movement of such emissions in the atmosphere
and their impact on land and water and other resources and the public
health in various regions of the Nation. Such Administrator shall
submit an annual report to the Congress on such program. In carrying
out his responsibilities under this section, the Administrator of the
Environmental Protection Agency shall consult with the other Federal and
State agencies concerned with the health effects of such emissions.
(b) Appropriations authorizations
There is authorized to be appropriated to the Administrator of the
Environmental Protection Agency $2,000,000 in fiscal year 1979 for the
report required under section 8482 of this title.
(Pub. L. 95-620, title VII, 745, Nov. 9, 1978, 92 Stat. 3343; Pub.
L. 100-42, 1(c)(22), May 21, 1987, 101 Stat. 314.)
The Clean Air Act, referred to in subsec. (a), is act July 14, 1955,
ch. 360, as amended generally by Pub. L. 88-206, Dec. 17, 1963, 77
Stat. 392, and later by Pub. L. 95-95, Aug. 7, 1977, 91 Stat. 685.
The Clean Air Act was originally classified to chapter 15B ( 1857 et
seq.) of this title. On enactment of Pub. L. 95-95, the Act was
reclassified to chapter 85 ( 7401 et seq.) of this title. For complete
classification of this Act to the Code, see short Title note set out
under section 7401 of this title and Tables.
1987 -- Subsec. (a). Pub. L. 100-42 struck out ''and major
fuel-burning installations'' after ''powerplants''.
42 USC -- 8456. Socioeconomic impacts of increased coal production and
other energy development
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Committee
There is hereby established an interagency committee composed of the
heads of the Departments of Energy, Commerce, Interior, Transportation,
Housing and Urban Development, and Health and Human Services, the
Environmental Protection Agency, the Appalachian Regional Commission,
the Farmers' Home Administration, the Office of Management and Budget,
and such other Federal agencies as the Secretary shall designate. In
carrying out its functions the committee shall consult with the National
Governors' Conference and interested persons, organizations, and
entities. The chairman of the committee shall be designated by the
President. The committee shall terminate 90 days after the submission
of its report under subsection (c) of this section.
(b) Functions of committee
It is the function of the committee to conduct a study of the
socioeconomic impacts of expanded coal production and rapid energy
development in general, on States, including local communities, and on
the public, including the adequacy of housing and public, recreational,
and cultural facilities for coal miners and their families and the
effect of any Federal or State laws or regulations on providing such
housing and facilities. The committee shall gather data and information
on --
(1) the level of assistance provided under this chapter and any other
programs related to impact assistance,
(2) the timeliness of assistance in meeting impacts caused by Federal
decisions on energy policy as well as private sector decisions, and
(3) the obstacles to effective assistance contained in regulations of
existing programs related to impact assistance.
(c) Report
Within 1 year after the effective date of this chapter, the committee
shall submit a detailed report on the results of such study to the
Congress, together with any recommendations for additional legislation
it may consider appropriate.
(Pub. L. 95-620, title VII, 746, Nov. 9, 1978, 92 Stat. 3344; Pub.
L. 96-88, title V, 509(b), Oct. 17, 1979, 93 Stat. 695.)
The effective date of this chapter, referred to in subsec. (c), is
the effective date of Pub. L. 95-620. See section 901 of Pub. L.
95-620, set out as an Effective Date note under section 8301 of this
title.
''Department of Health and Human Services'' substituted for
''Department of Health, Education, and Welfare'' in subsec. (a),
pursuant to section 509(b) of Pub. L. 96-88, which is classified to
section 3508(b) of Title 20, Education.
42 USC -- 8457. Use of petroleum and natural gas in combustors
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall conduct a detailed study of the uses of petroleum
and natural gas as a primary energy source for combustors and
installations not subject to the prohibitions of this chapter. In
conducting such study, the Secretary shall --
(1) identify those categories of major fuel-burning installations in
which the substitution of coal or other alternate fuels for petroleum
and natural gas is economically and technically feasible, and
(2) determine the estimated savings of natural gas and petroleum
expected from such substitution.
Within 1 year after the effective date of this chapter, the Secretary
shall submit a detailed report on the results of such study to the
Congress, together with any recommendations for legislation he may
consider appropriate.
(Pub. L. 95-620, title VII, 747, Nov. 9, 1978, 92 Stat. 3344.)
The effective date of this chapter, referred to in text, is the
effective date of Pub. L. 95-620. See section 901 of Pub. L. 95-620,
set out as an Effective Date note under section 8301 of this title.
42 USC -- Part F -- Appropriations Authorization
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8461. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
There is authorized to be appropriated to the Secretary for fiscal
year 1979 $11,900,000, to carry out the provisions of this chapter
(other than provisions for which an appropriations authorization is
otherwise expressly provided in this chapter) and section 792 of title
15.
(Pub. L. 95-620, title VII, 751, Nov. 9, 1978, 92 Stat. 3344.)
42 USC -- Part G -- Coordination With Other Provisions of Law
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8471. Effect on environmental requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Compliance with applicable environmental requirements
Except as provided in section 8374 of this title, nothing in this
chapter shall be construed as permitting any existing or new electric
powerplant to delay or avoid compliance with applicable environmental
requirements.
(b) Local environmental requirements
In the case of any new or existing facility --
(1) which is subject to any prohibition under this chapter, and
(2) which is also subject to any requirement of any local
environmental requirement which may be stricter than any Federal or
State environmental requirement,
the existence of such local requirement shall not be construed to
affect the validity or applicability of such prohibition to such
facility, except to the extent provided under section 8322(b) or section
8352(b) of this title; and the existence of such prohibition shall not
be construed to preempt such local requirement with respect to that
facility.
(Pub. L. 95-620, title VII, 761, Nov. 9, 1978, 92 Stat. 3345; Pub.
L. 100-42, 1(c)(23), May 21, 1987, 101 Stat. 314.)
1987 -- Subsec. (a). Pub. L. 100-42 struck out ''or major
fuel-burning installation'' after ''powerplant''.
42 USC -- 8472. Effect of orders under section 792 of title 15
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Effect of construction orders
Any electric powerplant or major fuel-burning installation issued an
order pursuant to section 792(c) of title 15 that is pending on the
effective date of this chapter shall, notwithstanding the provisions of
such section 792(c) or any other provision of this chapter, be subject
to the provisions of this chapter as if it were a new electric
powerplant or new major fuel-burning installation, as the case may be,
except that if such order became final before such date, the provisions
of subchapter II of this chapter shall not apply to such powerplant or
installation.
(b) Effect of prohibition orders
The provisions of subchapters II and III of this chapter shall not
apply to any powerplant or installation for which an order issued
pursuant to section 792(a) of title 15 before the effective date of this
chapter is pending or final or which, on review, was held unlawful and
set aside on the merits; except that any installation issued such an
order under such section 792(a) which is pending on the effective date
of this chapter may elect to be covered by subchapter II or III of this
chapter (as the case may be) rather than such section 792. Such an
election shall be irrevocable and shall be made in such form and manner
as the Secretary shall, within 90 days after November 9, 1978,
prescribe. Such an election shall be made not later than 60 days after
the date on which the Secretary prescribes the form and manner of making
such election.
(c) Validity of orders
The preceding provisions of this chapter shall not affect the
validity of any order issued under subsection (a), or any final order
under subsection (c), of section 792 of title 15, and the authority of
the Secretary to amend, repeal, rescind, modify, or enforce any such
order, or rules applicable thereto, shall remain in effect
notwithstanding any limitation of time otherwise applicable to such
authority. Except as provided in this section, the authority of the
Secretary under section 792 of title 15 shall terminate on the effective
date of this chapter.
(Pub. L. 95-620, title VII, 762(a)-(c), Nov. 9, 1978, 92 Stat.
3345.)
The effective date of this chapter, referred to in text, is the
effective date of Pub. L. 95-620. See section 901 of Pub. L. 95-620,
set out as an Effective Date note under section 8301 of this title.
42 USC -- 8473. Environmental impact statements under section 4332 of
this title
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The following actions are not deemed to be major Federal actions for
purposes of section 4332(2)(C) of this title:
(1) the grant or denial of any temporary exemption under this chapter
for any electric powerplant;
(2) the grant or denial of any permanent exemption under this chapter
for any existing electric powerplant, other than an exemption --
(A) under section 8352(c) of this title, relating to cogeneration;
(B) Repealed. Pub. L. 100-42, 1(c)(24)(B), May 21, 1987, 101 Stat.
314;
(C) under section 8352(b) of this title, relating to certain State or
local requirements;
(D) under section 8352(g) of this title, relating to certain
intermediate load powerplants; and
(3) the grant or denial of any exemption under this chapter for any
powerplant for which the Secretary finds, in consultation with the
appropriate Federal agency, and publishes such finding that an
environmental impact statement is required in connection with another
Federal action and such statement will be prepared by such agency and
will reflect the exemption adequately.
Except as provided in the preceding provisions of this section, any
determination of what constitutes or does not constitute a major Federal
action shall be made under section 4332 of this title.
(Pub. L. 95-620, title VII, 763, Nov. 9, 1978, 92 Stat. 3346; Pub.
L. 100-42, 1(c)(24), May 21, 1987, 101 Stat. 314.)
1987 -- Par. (1). Pub. L. 100-42, 1(c)(24)(A), struck out ''or
major fuel-burning installation'' after ''powerplant''.
Par. (2). Pub. L. 100-42, 1(c)(24), struck out ''or major
fuel-burning installation'' after ''powerplant'' and struck out subpar.
(B) which read as follows: ''under section 8352(l) of this title,
relating to scheduled equipment outages;''.
Par. (3). Pub. L. 100-42, 1(c)(24)(A), struck out ''or major
fuel-burning installation'' after ''powerplant''.
42 USC -- SUBCHAPTER VIII -- MISCELLANEOUS PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8481. Repealed. Pub. L. 100-42, 1(a)(7), May 21, 1987, 101
Stat. 310
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 95-620, title VIII, 801, Nov. 9, 1978, 92 Stat.
3346, required annual disclosure of extent, characteristics, and
productive capacity of coal reserves, and of interests held therein,
with discretionary exception for small reserves, and publication of such
information by Secretary.
42 USC -- 8482. Annual report
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall submit to the Congress on March 1 of each year a
detailed report prepared by him in conjunction with the Administrator of
the Environmental Protection Agency of the actions taken under this
chapter and under section 792 of title 15 during the preceding calendar
year, and the actions to be taken. Each such report shall include data
on the effectiveness of this chapter in achieving the purposes of this
chapter.
(Pub. L. 95-620, title VIII, 806, Nov. 9, 1978, 92 Stat. 3348.)
42 USC -- 8483. Submission of reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Copies of any report required by this chapter to be submitted to the
Congress shall be separately submitted to the Committee on Interstate
and Foreign Commerce of the House of Representatives and the Committee
on Energy and Natural Resources of the Senate.
(Pub. L. 95-620, title VIII, 807, Nov. 9, 1978, 92 Stat. 3348.)
42 USC -- 8484. Electric utility conservation plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Applicability
An electric utility is subject to this subsection /1/ if --
(1) the utility owns or operates any existing electric powerplant in
which natural gas was used as a primary energy source at any time during
the 1-year period ending on August 13, 1981, and
(2) the utility plans to use natural gas as a primary energy source
in any electric powerplant.
(b) Submission and approval of plan
The Secretary shall require each electric utility subject to this
section to --
(1) submit, within 1 year after August 13, 1981, and have approved by
the Secretary, a conservation plan which meets the requirements of
subsection (c) of this section; and
(2) implement such plan during the 5-year period beginning on the
date of the initial approval of such plan.
(c) Contents of plan
(1) Any conservation plan under this section shall set forth means
determined by the utility to achieve conservation of electric energy not
later than the 5th year after its initial approval at a level, measured
on an annual basis, at least equal to 10 percent of the electric energy
output of that utility during the most recent 4 calendar quarters ending
prior to August 13, 1981, which is attributable to natural gas.
(2) The conservation plan shall include --
(A) all activities required for such utility by part 1 of title II of
the National Energy Conservation Policy Act (42 U.S.C. 8211 et seq.);
(B) an effective public information program for conservation; and
(C) such other measures as the utility may consider appropriate.
(3) Any such plan may set forth a program for the use of renewable
energy sources (other than hydroelectric power).
(4) Any such plan shall contain procedures to permit the amounts
expended by such utility in developing and implementing the plan to be
recovered in a manner specified by the appropriate State regulatory
authority (or by the utility in the case of a nonregulated utility).
(d) Plan approval
(1) The Secretary shall, by order, approve or disapprove any
conservation plan proposed under this subsection /1/ by an electric
utility within 120 days after its submission. The Secretary shall
approve any such proposed plan unless the Secretary finds that such plan
does not meet the requirements of subsection (c) of this section and
states in writing the reasons therefor.
(2) In the event the Secretary disapproves under paragraph (1) the
plan originally submitted, the Secretary shall provide a reasonable
period of time for resubmission.
(3) An electric utility may amend any approved plan, except that the
plan as amended shall be subject to approval in accordance with
paragraph (1).
(Pub. L. 95-620, title VIII, 808, as added Pub. L. 97-35, title X,
1023(a), Aug. 13, 1981, 95 Stat. 616.)
The National Energy Conservation Policy Act, referred to in subsec.
(c)(2)(A), is Pub. L. 95-619, Nov. 9, 1978, 92 Stat. 3208, as
amended. Part 1 of title II of the National Energy Conservation Policy
Act was classified generally to part A ( 8211 et seq.) of subchapter II
of chapter 91 of this title, and was omitted from the Code pursuant to
section 8229 of this title which terminated authority under that part
June 30, 1989. For complete classification of this Act to the Code, see
Short Title note set out under section 8201 of this title and Tables.
Section effective Aug. 13, 1981, see section 1038 of Pub. L.
97-35, set out as an Effective Date of 1981 Amendment note under section
6240 of this title.
/1/ So in original. Probably should be ''section''.
42 USC -- CHAPTER 93 -- EMERGENCY ENERGY CONSERVATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8501. Congressional findings and purposes.
(a) Findings.
(b) Purposes.
8502. Definitions.
8511. National and State emergency conservation targets.
(a) Determination and publication of targets.
(b) Notification and publication of targets.
(c) Establishment of targets for Federal agencies.
(d) Review of targets.
(e) Determination and publication of actual consumption nationally
and State-by-State.
(f) Presidential authority not to be delegated.
8512. State emergency conservation plan.
(a) State emergency conservation plans.
(b) Conservation measures under State plans.
(c) Approval of State plans.
(d) State administration and enforcement.
(e) Civil penalty.
8513. Standby Federal conservation plan.
(a) Establishment of standby conservation plan.
(b) Implementation of standby conservation plan.
(c) Basis for findings.
(d) Submission of State emergency conservation plan.
(e) State substitute emergency conservation measures.
(f) State authority to administer plan.
(g) Presidential authority not to be delegated.
(h) Requirements of plan.
(i) Plan may not authorize weekend closings of retail gasoline
stations.
(j) Civil penalties.
8514. Judicial review.
(a) State actions.
(b) Repealed.
(c) Injunctive relief.
8515. Reports.
(a) Monitoring.
(b) Annual report.
8521. Minimum automobile fuel purchase measures.
(a) General rule.
(b) $7.00 to be applicable in case of 8-cylinder vehicles.
(c) Applicability.
(d) Exemptions.
(e) Adjustment of minimum levels.
(f) Civil penalties.
(g) Administration and enforcement delegated to States.
(h) Coordination with other law.
8522. Out-of-State vehicles to be exempted from odd-even motor fuel
purchase restrictions.
(a) General rule.
(b) ''Odd-even fuel purchase plan'' defined.
8531. Study and report.
(a) Study of commercial and industrial storage of fuel.
(b) Contents of report.
8532. Middle distillate monitoring program.
(a) Monitoring program.
(b) Report.
8541. Administration.
(a) Information.
(b) Effect on other laws.
(c) Termination.
42 USC -- 8501. Congressional findings and purposes
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Findings
The Congress finds that --
(1) serious disruptions have recently occurred in the gasoline and
diesel fuel markets of the United States;
(2) it is likely that such disruptions will recur;
(3) interstate commerce is significantly affected by those market
disruptions;
(4) an urgent need exists to provide for emergency conservation and
other measures with respect to gasoline, diesel fuel, home heating oil,
and other energy sources in potentially short supply in order to cope
with market disruptions and protect interstate commerce; and
(5) up-to-date and reliable information concerning the supply and
demand of gasoline, diesel fuel, and other related data is not available
to the President, the Congress, or the public.
(b) Purposes
The purposes of this chapter are to --
(1) provide a means for the Federal Government, States, and units of
local government to establish emergency conservation measures with
respect to gasoline, diesel fuel, home heating oil, and other energy
sources which may be in short supply;
(2) establish other emergency measures to alleviate disruptions in
gasoline and diesel fuel markets;
(3) obtain data concerning such fuels; and
(4) protect interstate commerce.
(Pub. L. 96-102, title II, 201, Nov. 5, 1979, 93 Stat. 757.)
Section 302 of Pub. L. 96-102 provided that: ''The amendments made
by this Act (enacting this chapter, amending sections 6262, 6263, and
6422 of this title, and enacting provisions set out as notes under this
section and section 6261 of this title) shall take effect on the date of
the enactment of this Act (Nov. 5, 1979).''
Section 1(a) of Pub. L. 96-102 provided that: ''This Act (enacting
this chapter, amending sections 6261, 6262, 6263, and 6422 of this
title, and enacting provisions set out as notes under this section and
section 6261 of this title) may be cited as the 'Emergency Energy
Conservation Act of 1979'.''
Section 101 of Pub. L. 96-102 provided that: ''The Congress finds
that --
''(1) a standby rationing plan for gasoline and diesel fuel should
provide, to the maximum extent practicable, that the burden of reduced
supplies of gasoline and diesel fuel be shared by all persons in a fair
and equitable manner and that the economic and social impacts of such
plan be minimized; and
''(2) such a plan should be sufficiently flexible to respond to
changed conditions and sufficiently simple to be effectively
administered and enforced.''
Section 301 of Pub. L. 96-102 provided that: ''For purposes of any
law relating to appropriations or authorizations for appropriations as
such law relates to the fiscal year ending September 30, 1979, or the
fiscal year ending September 30, 1980, the provisions of this Act
(including amendments made by this Act) (see Short Title note above)
shall be treated as if it were a contingency plan under section 202 or
203 of the Energy Policy and Conservation Act (sections 6262 and 6263 of
this title) which was approved in accordance with the procedures under
that Act (see Short Title note set out under section 6201 of this title)
or as otherwise provided by law, and funds made available pursuant to
such appropriations shall be available to carry out the provisions of
this Act and the amendments made by this Act.''
42 USC -- 8502. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For purposes of this chapter --
(1) The term ''severe energy supply interruption'', when used with
respect to motor fuel or any other energy source, means a national
energy supply shortage of such energy source which the President
determines --
(A) is, or is likely to be, of significant scope and duration;
(B) may cause major adverse impact on national security or the
national economy; and
(C) results, or is likely to result, from an interruption in the
energy supplies of the United States, including supplies of imported
petroleum products, or from sabotage or an act of God.
(2) The term ''international energy program'' has the meaning given
that term in section 6202(7) of this title.
(3) The term ''motor fuel'' means gasoline and diesel fuel.
(4) The term ''person'' includes (A) any individual, (B) any
corporation, company, association, firm, partnership, society, trust,
joint venture, or joint stock company, and (C) the government or any
agency of the United States or any State or political subdivision
thereof.
(5) The term ''vehicle'' means any vehicle propelled by motor fuel
and manufactured primarily for use on public streets, roads, and
highways.
(6) The term ''Secretary'' means the Secretary of Energy.
(7) The term ''Governor'' means the chief executive officer of a
State.
(8) The term ''State'' means a State, the District of Columbia, the
Commonwealth of Puerto Rico, or any territory or possession of the
United States.
(Pub. L. 96-102, title II, 202, Nov. 5, 1979, 93 Stat. 757.)
42 USC -- SUBCHAPTER I -- EMERGENCY ENERGY CONSERVATION PROGRAM
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8511. National and State emergency conservation targets
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Determination and publication of targets
(1) Whenever the President finds, with respect to any energy source
for which the President determines a severe energy supply interruption
exists or is imminent or that actions to restrain domestic energy demand
are required in order to fulfill the obligations of the United States
under the international energy program, the President, in furtherance of
the purposes of this chapter, may establish monthly emergency
conservation targets for any such energy source for the Nation generally
and for each State.
(2) Any finding of the President under paragraph (1) shall be
promptly transmitted to the Congress, accompanied by such information
and analysis as is necessary to provide the basis for such finding, and
shall be disseminated to the public.
(3)(A) The State conservation target for any energy source shall be
equal to (i) the State base period consumption reduced by (ii) a uniform
national percentage.
(B) For the purposes of this subsection, the term ''State base period
consumption'' means, for any month, the product of the following
factors, as determined by the President:
(i) the consumption of the energy source for which a target is
established during the corresponding month in the 12-month period prior
to the first month for which the target is established; and
(ii) a growth adjustment factor, which shall be determined on the
basis of the trends in the use in that State of such energy source
during the 36-month period prior to the first month for which the target
is established.
(C)(i) The President shall adjust, to the extent he determines
necessary, any State base period consumption to insure that achievement
of a target established for that State under this subsection will not
impair the attainment of the objectives of section 753(b)(1) /1/ of
title 15.
(ii) The President may, to the extent he determines appropriate,
further adjust any State base period consumption to reflect --
(I) reduction in energy consumption already achieved by energy
conservation programs;
(II) energy shortages which may affect energy consumption; and
(III) variations in weather from seasonal norms.
(D) For purposes of this subsection, the uniform national percentage
shall be designed by the President to minimize the impact on the
domestic economy of the projected shortage in the energy source for
which a target is established by saving an amount of such energy source
equivalent to the projected shortage, taking into consideration such
other factors related to that shortage as the President considers
appropriate.
(b) Notification and publication of targets
The President shall notify the Governor of each State of each target
established under subsection (a) of this section for that State, and
shall publish in the Federal Register, the targets, the base period
consumption for each State and other data on which the targets are
based, and the factors considered under subsection (a)(3) of this
section.
(c) Establishment of targets for Federal agencies
In connection with the establishment of any national target under
subsection (a) of this section the President shall make effective an
emergency energy conservation plan for the Federal Government, which
plan shall be designed to achieve an equal or greater reduction in use
of the energy source for which a target is established than the national
percentage referred to in subsection (a)(3)(D) of this section. Such
plan shall contain measures which the President will implement, in
accordance with other applicable provisions of law, to reduce on an
emergency basis the use of energy by the Federal Government. In
developing such plan the President shall consider the potential for
emergency reductions in energy use --
(1) by buildings, facilities, and equipment owned, leased, or under
contract by the Federal Government; and
(2) by Federal employees and officials through increased use of car
and van pooling, preferential parking for multipassenger vehicles, and
greater use of mass transit.
(d) Review of targets
(1) From time to time, the President shall review and, consistent
with subsection (a) of this section, modify to the extent the President
considers appropriate the national and State energy conservation targets
established under this subsection.
(2) Any modification under this paragraph shall be accompanied by
such information and analysis as is necessary to provide the basis
therefor and shall be available to the Congress and the public.
(3)(A) Before the end of the 12th month following the establishment
of any conservation target under this section, and annually thereafter
while such target is in effect, the President shall determine, for the
energy source for which that target was established, whether a severe
energy supply interruption exists or is imminent or that actions to
restrain domestic energy demand are required in order to fulfill the
obligations of the United States under the international energy program.
The President shall transmit to the Congress and make public the
information and other data on which any determination under this
subparagraph is based.
(B) If the President determines such an energy supply interruption
does not exist or is not imminent or such actions are not required, the
conservation targets established under this section with respect to such
energy source shall cease to be effective.
(e) Determination and publication of actual consumption nationally
and State-by-State
Each month the Secretary shall determine and publish in the Federal
Register (1) the level of consumption for the most recent month for
which the President determines accurate data is available, nationally
and for each State, of any energy source for which a target under
subsection (a) of this section is in effect, and (2) whether the targets
under subsection (a) of this section have been substantially met or are
likely to be met.
(f) Presidential authority not to be delegated
Notwithstanding any other provision of law, the authority vested in
the President under this section may not be delegated.
(Pub. L. 96-102, title II, 211, Nov. 5, 1979, 93 Stat. 758.)
Section 753 of title 15, referred to in subsec. (a)(3)(C)(i), was
omitted from the Code pursuant to section 760g of Title 15, Commerce and
Trade, which provided for the expiration of the President's authority
under that section on Sept. 30, 1981.
State energy conservation plans, see section 6321 et seq. of this
title.
State energy conservation goals, see section 6324 of this title.
/1/ See References in Text note below.
42 USC -- 8512. State emergency conservation plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State emergency conservation plans
(1)(A) Not later than 45 days after the date of the publication of an
energy conservation target for a State under section 8511(b) of this
title, the Governor of that State shall submit to the Secretary a State
emergency conservation plan designed to meet or exceed the emergency
conservation target in effect for that State under section 8511(a) of
this title. Such plan shall contain such information as the Secretary
may reasonably require. At any time, the Governor may, with the
approval of the Secretary, amend a plan established under this section.
(B) The Secretary may, for good cause shown, extend to a specific
date the period for the submission of any State's plan under
subparagraph (A) if the Secretary publishes in the Federal Register
notice of that extension together with the reasons therefor.
(2) Each State is encouraged to submit to the Secretary a State
emergency conservation plan as soon as possible after November 5, 1979,
and in advance of such publication of any such target. The Secretary
may tentatively approve such a plan in accordance with the provisions of
this section. For the purposes of this subchapter such tentative
approval shall not be construed to result in a delegation of Federal
authority to administer or enforce any measure contained in a State
plan.
(b) Conservation measures under State plans
(1) Each State emergency conservation plan under this section shall
provide for emergency reduction in the public and private use of each
energy source for which an emergency conservation target is in effect
under section 8511 of this title. Such State plan shall contain
adequate assurances that measures contained therein will be effectively
implemented in that State. Such plan may provide for reduced use of
that energy source through voluntary programs or through the application
of one or more of the following measures described in such plan:
(A) measures which are authorized under the laws of that State and
which will be administered and enforced by officers and employees of the
State (or political subdivisions of the State) pursuant to the laws of
such State (or political subdivisions); and
(B) measures --
(i) which the Governor requests, and agrees to assume, the
responsibility for administration and enforcement in accordance with
subsection (d) of this section;
(ii) which the attorney general of that State has found that (I)
absent a delegation of authority under Federal law, the Governor lacks
the authority under the laws of the State to invoke, (II) under
applicable State law, the Governor and other appropriate State officers
and employees are not prevented from administering and enforcing under a
delegation of authority pursuant to Federal law; and (III) if
implemented, would not be contrary to State law; and
(iii) which either the Secretary determines are contained in the
standby Federal conservation plan established under section 8513 of this
title or are approved by the Secretary, in his discretion.
(2) In the preparation of such plan (and any amendment to the plan)
the Governor shall, to the maximum extent practicable, provide for
consultation with representatives of affected businesses and local
governments and provide an opportunity for public comment.
(3) Any State plan submitted to the Secretary under this section may
permit persons affected by any measure in such plan to use alternative
means of conserving at least as much energy as would be conserved by
such measure. Such plan shall provide an effective procedure, as
determined by the Secretary, for the approval and enforcement of such
alternative means by such State or by any political subdivision of such
State.
(c) Approval of State plans
(1) As soon as practicable after the date of the receipt of any State
plan, but in no event later than 30 days after such date, the Secretary
shall review such plan and shall approve it unless the Secretary finds
--
(A) that, taken as a whole, the plan is not likely to achieve the
emergency conservation target established for that State under section
8511(a) of this title for each energy source involved,
(B) that, taken as a whole, the plan is likely to impose an
unreasonably disproportionate share of the burden of restrictions of
energy use on any specific class of industry, business, or commercial
enterprise, or any individual segment thereof,
(C) that the requirements of this subchapter regarding the plan have
not been met, or
(D) that a measure described in subsection (b)(1) of this section is
--
(i) inconsistent with any otherwise applicable Federal law (including
any rule or regulation under such law),
(ii) an undue burden on interstate commerce, or
(iii) a tax, tariff, or user fee not authorized by State law.
(2) Any measure contained in a State plan shall become effective in
that State on the date the Secretary approves the plan under this
subsection or such later date as may be prescribed in, or pursuant to,
the plan.
(d) State administration and enforcement
(1) The authority to administer and enforce any measure described in
subsection (b)(1)(B) of this section which is in a State plan approved
under this section is hereby delegated to the Governor of the State and
the other State and local officers and employees designated by the
Governor. Such authority includes the authority to institute actions on
behalf of the United States for the imposition and collection of civil
penalties under subsection (e) of this section.
(2) All delegation of authority under paragraph (1) with respect to
any State shall be considered revoked effective upon a determination by
the President that such delegation should be revoked, but only to the
extent of that determination.
(3) If at any time the conditions of subsection (b)(1)(B)(ii) of this
section are no longer satisfied in any State with respect to any measure
for which a delegation has been made under paragraph (1), the attorney
general of that State shall transmit a written statement to that effect
to the Governor of that State and to the President. Such delegation
shall be considered revoked effective upon receipt by the President of
such written statement and a determination by the President that such
conditions are no longer satisfied, but only to the extent of that
determination and consistent with such attorney general's statement.
(4) Any revocation under paragraph (2) or (3) shall not affect any
action or pending proceedings, administrative or civil, not finally
determined on the date of such revocation, nor any administrative or
civil action or proceeding, whether or not pending, based upon any act
committed or liability incurred prior to such revocation.
(e) Civil penalty
(1) Whoever violates the requirements of any measure described in
subsection (b)(1)(B) of this section which is in a State plan in effect
under this section shall be subject to a civil penalty of not to exceed
$1,000 for each violation.
(2) Any penalty under paragraph (1) may be assessed by the court in
any action brought in any appropriate United States district court or
any other court of competent jurisdiction. Except to the extent
provided in paragraph (3), any such penalty collected shall be deposited
into the general fund of the United States Treasury as miscellaneous
receipts.
(3) The Secretary may enter into an agreement with the Governor of
any State under which amounts collected pursuant to this subsection may
be collected and retained by the State to the extent necessary to cover
costs incurred by that State in connection with the administration and
enforcement of measures the authority for which is delegated under
subsection (d) of this section.
(Pub. L. 96-102, title II, 212, Nov. 5, 1979, 93 Stat. 759.)
State energy conservation plans, see section 6322 of this title.
42 USC -- 8513. Standby Federal conservation plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment of standby conservation plan
(1) Within 90 days after November 5, 1979, the Secretary, in
accordance with section 7191 of this title, shall establish a standby
Federal emergency conservation plan. The Secretary may amend such plan
at any time, and shall make such amendments public upon their adoption.
(2) The plan under this section shall be consistent with the
attainment of the objectives of section 753(b)(1) /1/ of title 15, and
shall provide for the emergency reduction in the public and private use
of each energy source for which an emergency conservation target is in
effect or may be in effect under section 8511 of this title.
(b) Implementation of standby conservation plan
(1) If the President finds --
(A) after a reasonable period of operation, but not less than 90
days, that a State emergency conservation plan approved and implemented
under section 8512 of this title is not substantially meeting a
conservation target established under section 8511(a) of this title for
such State and it is likely that such target will continue to be unmet;
and
(B) a shortage exists or is likely to exist in such State for the
60-day period beginning after such finding that is equal to or greater
than 8 percent of the projected normal demand, as determined by the
President, for an energy source for which such conservation target has
been established under section 8511(a) of this title;
then the President shall, after consultation with the Governor of
such State, make effective in such State all or any part of the standby
Federal conservation plan established under subsection (a) of this
section for such period or periods as the President determines
appropriate to achieve the target in that State.
(2) If the President finds after a reasonable period of time, that
the conservation target established under section 8511(a) of this title
is not being substantially met and it is likely that such target will
continue to be unmet in a State which --
(A) has no emergency conservation plan approved under section 8512 of
this title; or
(B) the President finds has substantially failed to carry out the
assurances regarding implementation set forth in the plan approved under
section 8512 of this title,
then the President shall, after consultation with the Governor of
such State, make effective in such State all or any part of the standby
Federal conservation plan established under subsection (a) of this
section for such period or periods as the President determines
appropriate to achieve the target in that State.
(c) Basis for findings
Any finding under subsection (b) of this section shall be accompanied
by such information and analysis as is necessary to provide a basis
therefor and shall be available to the Congress and the public.
(d) Submission of State emergency conservation plan
(1) /2/ The Governor of a State in which all or any portion of the
standby Federal conservation plan is or will be in effect may submit at
any time a State emergency conservation plan, and if it is approved
under section 8512(c) of this title, all or such portion of the standby
Federal conservation plan shall cease to be effective in that State.
Nothing in this paragraph shall affect any action or pending
proceedings, administrative or civil, not finally determined on such
date, nor any administrative or civil action or proceeding, whether or
not pending, based upon any act committed or liability incurred prior to
such cessation of effectiveness.
(e) State substitute emergency conservation measures
(1) After the President makes all or any part of the standby Federal
conservation plan effective in any State or political subdivision under
subsection (b) of this section, the Secretary shall provide procedures
whereby such State or any political subdivision thereof may submit to
the Secretary for approval one or more measures under authority of State
or local law to be implemented by such State or political subdivision
and to be substituted for any Federal measure in the Federal plan. The
measures may include provisions whereby persons affected by such Federal
measure are permitted to use alternative means of conserving at least as
much energy as would be conserved by such Federal measure. Such
measures shall provide effective procedures, as determined by the
Secretary, for the approval and enforcement of such alternative means by
such State or by any political subdivision thereof.
(2) The Secretary may approve the measures under paragraph (1) if he
finds --
(A) that such measures when in effect will conserve at least as much
energy as would be conserved by such Federal measure which would have
otherwise been in effect in such State or political subdivision;
(B) such measures otherwise meet the requirements of this paragraph;
and
(C) such measures would be approved under section 8512(c)(1)(B), (C),
and (D) of this title.
(3) If the Secretary approves measures under this subsection such
Federal measure shall cease to be effective in that State or political
subdivision. Nothing in this paragraph shall affect any action or
pending proceedings, administrative or civil, not finally determined on
the date the Federal measure ceases to be effective in that State or
political subdivision, nor any administrative or civil action or
proceeding, whether or not pending, based upon any act committed or
liability incurred prior to such cessation of effectiveness.
(4) If the Secretary finds after a reasonable period of time that the
requirements of this subsection are not being met under the measures in
effect under this subsection he may reimpose the Federal measure
referred to in paragraph (1).
(f) State authority to administer plan
At the request of the Governor of any State, the President may
provide that the administration and enforcement of all or a portion of
the standby Federal conservation plan made effective in that State under
subsection (b) of this section be in accordance with section 8512(d)(1),
(2), and (4) of this title.
(g) Presidential authority not to be delegated
Notwithstanding any other provision of law (other than subsection (f)
of this section), the authority vested in the President under this
section may not be delegated.
(h) Requirements of plan
The plan established under subsection (a) of this section shall --
(1) taken as a whole, be designed so that the plan, if implemented,
would be likely to achieve the emergency conservation target under
section 8511 of this title for which it would be implemented,
(2) taken as a whole, be designed so as not to impose an unreasonably
disproportionate share of the burden of restrictions on energy use on
any specific class of industry, business, or commercial enterprise, or
any individual segment thereof, and
(3) not contain any measure which the Secretary finds --
(A) is inconsistent with any otherwise applicable Federal law
(including any rule or regulation under such law),
(B) is an undue burden on interstate commerce,
(C) is a tax, tariff, or user fee, or
(D) is a program for the assignment of rights for end-user purchases
of gasoline or diesel fuel, as described in section 6263(a)(1)(A) and
(B) /3/ of this title.
(i) Plan may not authorize weekend closings of retail gasoline
stations
(1) Except as provided in paragraph (2), the plan established under
subsection (a) of this section may not provide for the restriction of
hours of sale of motor fuel at retail at any time between Friday noon
and Sunday midnight.
(2) Paragraph (1) shall not preclude the restriction on such hours of
sale if that restriction occurs in connection with a program for
restricting hours of sale of motor fuel each day of the week on a
rotating basis.
(j) Civil penalties
(1) Whoever violates the requirements of such a plan implemented
under subsection (b) of this section shall be subject to a civil penalty
not to exceed $1,000 for each violation.
(2) Any penalty under paragraph (1) may be assessed by the court in
any action brought in any appropriate United States district court or
any other court of competent jurisdiction. Except to the extent
provided under paragraph (3), any such penalty collected shall be
deposited into the general fund of the United States Treasury as
miscellaneous receipts.
(3) The Secretary may enter into an agreement with the Governor of
any State under which amounts collected pursuant to this subsection may
be collected and retained by the State to the extent necessary to cover
costs incurred by that State in connection with the administration and
enforcement of that portion of the standby Federal conservation plan for
which authority is delegated to that State under subsection (f) of this
section.
(Pub. L. 96-102, title II, 213, Nov. 5, 1979, 93 Stat. 762.)
Section 753 of title 15, referred to in subsec. (a)(2), was omitted
from the Code pursuant to section 760g of Title 15, Commerce and Trade,
which provided for the expiration of the President's authority under
that section on Sept. 30, 1981.
Section 6263 of this title, referred to in subsec. (h)(3)(D), was
omitted from the Code pursuant to section 6264 of this title, which
provided for expiration of authority under that section on June 30,
1985.
/1/ See References in Text note below.
/2/ So in original. Subsec. (d) enacted without a par. (2).
/3/ See References in Text note below.
42 USC -- 8514. Judicial review
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) State actions
(1) Any State may institute an action in the appropriate district
court of the United States, including actions for declaratory judgment,
for judicial review of --
(A) any target established by the President under section 8511(a) of
this title;
(B) any finding by the President under section 8513(b)(1)(A) of this
title, relating to the achievement of the emergency energy conservation
target of such State, or 8513(b)(2) of this title, relating to the
achievement of the emergency energy conservation target of such State or
the failure to carry out the assurances regarding implementation
contained in an approved plan of such State; or
(C) any determination by the Secretary disapproving a State plan
under section 8512(c) of this title, including any determination by the
Secretary under section 8512(c)(1)(B) of this title that the plan is
likely to impose an unreasonably disproportionate share of the burden of
restrictions of energy use on any specific class of industry, business,
or commercial enterprise, or any individual segment thereof.
Such action shall be barred unless it is instituted within 30
calendar days after the date of publication of the establishment of a
target referred to in subparagraph (A), the finding by the President
referred to in subparagraph (B), or the determination by the Secretary
referred to in subparagraph (C), as the case may be.
(2) The district court shall determine the questions of law and upon
such determination certify such questions immediately to the United
States court of appeals for the circuit involved, which shall hear the
matter sitting en banc.
(3) Any decision by such court of appeals on a matter certified under
paragraph (2) shall be reviewable by the Supreme Court upon attainment
of a writ of certiorari. Any petition for such a writ shall be filed no
later than 20 days after the decision of the court of appeals.
(b) Repealed. Pub. L. 98-620, title IV, 402(42), Nov. 8, 1984, 98
Stat. 3360
(c) Injunctive relief
With respect to judicial review under subsection (a)(1)(A) of this
section, the court shall not have jurisdiction to grant any injunctive
relief except in conjunction with a final judgment entered in the case.
(Pub. L. 96-102, title II, 214, Nov. 5, 1979, 93 Stat. 764; Pub.
L. 98-620, title IV, 402(42), Nov. 8, 1984, 98 Stat. 3360.)
1984 -- Subsec. (b). Pub. L. 98-620 struck out subsec. (b) which
required the court of appeals to advance on the docket and to expedite
to the greatest possible extent the disposition of any matter certified
under subsec. (a)(2).
Amendment by Pub. L. 98-620 not applicable to cases pending on Nov.
8, 1984, see section 403 of Pub. L. 98-620, set out as an Effective
Date note under section 1657 of Title 28, Judiciary and Judicial
Procedure.
42 USC -- 8515. Reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Monitoring
The Secretary shall monitor the implementation of State emergency
conservation plans and of the standby Federal conservation plan and make
such recommendations to the Governor of each affected State as he deems
appropriate for modification to such plans.
(b) Annual report
The President shall report annually to the Congress on any activities
undertaken pursuant to this subchapter and include in such report his
estimate of the energy saved in each State and the performance of such
State in relation to this subchapter. Such report shall contain such
recommendations as the President considers appropriate.
(Pub. L. 96-102, title II, 215, Nov. 5, 1979, 93 Stat. 765.)
42 USC -- SUBCHAPTER II -- OTHER AUTOMOBILE FUEL PURCHASE MEASURES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8521. Minimum automobile fuel purchase measures
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General rule
If the provisions of this subsection are made applicable under
subsection (c) of this section, no person shall purchase motor fuel from
a motor fuel retailer in any transaction for use in any automobile or
other vehicle unless --
(1) the price for the quantity purchased and placed into the fuel
tank of that vehicle equals or exceeds $5.00; or
(2) in any case in which the amount paid for the quantity of motor
fuel necessary to fill the fuel tank of that vehicle to capacity is less
than $5.00, such person pays to the retailer an additional amount so
that the total amount paid in that transaction equals $5.00.
Any person selling motor fuel in transactions to which the provisions
of this subsection apply shall display at the point of sale notice of
such provisions in accordance with regulations prescribed by the
Secretary.
(b) $7.00 to be applicable in case of 8-cylinder vehicles
In applying subsection (a) of this section in the case of any vehicle
with an engine having 8 cylinders (or more), ''$7.00'' shall be
substituted for ''$5.00''.
(c) Applicability
(1) Unless applicable pursuant to paragraph (2), the requirements of
subsection (a) of this section shall apply in any State and shall be
administered and enforced as provided in subsection (g) of this section
only if --
(A) the Governor of that State submits a request to the Secretary to
have such requirements applicable in that State; and
(B) the attorney general of that State has found that (i) absent a
delegation of authority under a Federal law, the Governor lacks the
authority under the laws of the State to invoke comparable requirements,
(ii) under applicable State law, the Governor and other appropriate
State officers and employees are not prevented from administering and
enforcing such requirements under a delegation of authority pursuant to
Federal law, and (iii) if implemented such requirements would not be
contrary to State law.
Subject to paragraph (2), such provisions shall cease to apply in any
State if the Governor of the State withdraws any request under
subparagraph (A).
(2) The requirements of subsection (a) of this section shall apply in
every State if there is in effect a finding by the President that
nationwide implementation of such requirements would be appropriate and
consistent with the purposes of this chapter.
(3) Such requirements shall take effect in any State beginning on the
5th day after the Secretary or the President (as the case may be)
publishes notice in the Federal Register of the applicability of the
requirements to the State pursuant to paragraph (1) or (2).
(4) Notwithstanding any other provision of law, the authority vested
in the President under paragraph (2) may not be delegated.
(d) Exemptions
The requirements of subsection (a) of this section shall not apply to
any motorcycle or motorpowered bicycle, or to any comparable vehicle as
may be determined by the Secretary by regulation.
(e) Adjustment of minimum levels
The Secretary may increase the $5.00 and $7.00 amounts specified in
subsections (a) and (b) of this section if the Secretary considers it
appropriate. Adjustments under this subsection shall be only in even
dollar amounts.
(f) Civil penalties
(1) Whoever violates the requirements of subsection (a) of this
section shall be subject to a civil penalty of not to exceed $100 for
each violation.
(2) Any penalty under paragraph (1) may be assessed by the court in
any action under this section brought in any appropriate United States
district court or any other court of competent jurisdiction. Except to
the extent provided in paragraph (3), any such penalty collected shall
be deposited into the general fund of the United States Treasury as
miscellaneous receipts.
(3) The Secretary may enter into an agreement with the Governor of
any State under which amounts collected pursuant to this subsection may
be collected and retained by the State to the extent necessary to cover
costs incurred by that State in connection with the administration and
enforcement of the requirements of subsection (a) of this section the
authority for which is delegated under subsection (g) of this section.
(g) Administration and enforcement delegated to States
(1) There is hereby delegated to the Governor of any State, and other
State and local officers and employees designated by the Governor, the
authority to administer and enforce, within that State, any provision of
this subchapter which is to be administered and enforced in accordance
with this section. Such authority includes the authority to institute
actions on behalf of the United States for the imposition and collection
of civil penalties under subsection (f) of this section.
(2)(A) All delegation of authority under paragraph (1) with respect
to any State shall be considered revoked effective (i) upon the receipt
of a written waiver of authority signed by the Governor of such State or
(ii) upon a determination by the President that such delegation should
be revoked, but only to the extent of that determination.
(B) If at any time the conditions of subsection (c)(1)(B) of this
section are no longer satisfied in any State to which a delegation has
been made under paragraph (1), the attorney general of that State shall
transmit a written statement to that effect to the Governor of that
State and to the President. Such delegation shall be considered revoked
effective upon receipt by the President of such written statement and a
determination by the President that such conditions are no longer
satisfied, but only to the extent of that determination and consistent
with such attorney general's statement.
(C) Any revocation under subparagraph (A) or (B) shall not affect any
action or pending proceedings, administrative or civil, not finally
determined on the date of such revocation, nor any administrative or
civil action or proceeding, whether or not pending, based on any act
committed or liability incurred prior to such revocation.
(D) The Secretary shall administer and enforce any provision of this
subchapter which has been made effective under subsection (c)(2) of this
section and for which a delegation of authority is considered revoked
under subparagraph (A).
(h) Coordination with other law
The charging and collecting of amounts referred to in subsection
(a)(2) of this section under the requirements of subsection (a) of this
section, or similar amounts collected under comparable requirements
under any State law, shall not be considered a violation of --
(1) the Emergency Petroleum Allocation Act of 1973 /1/ (15 U.S.C. 751
et seq.) or any regulation thereunder; or
(2) any Federal or State law requiring the labeling or disclosure of
the maximum price per gallon of any fuel.
(Pub. L. 96-102, title II, 221, Nov. 5, 1979, 93 Stat. 765.)
The Emergency Petroleum Allocation Act of 1973, referred to in
subsec. (h)(1), is Pub. L. 93-159, Nov. 27, 1973, 87 Stat. 628, as
amended, which was classified generally to chapter 16A ( 751 et seq.) of
Title 15, Commerce and Trade, and was omitted from the Code pursuant to
section 760g of Title 15, which provided for the expiration of the
President's authority under that chapter on Sept. 30, 1981.
/1/ See References in Text note below.
42 USC -- 8522. Out-of-State vehicles to be exempted from odd-even
motor fuel purchase restrictions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) General rule
Notwithstanding any provision of any Federal, State, or local law,
any odd-even fuel purchase plan in effect in any State may not prohibit
the sale of motor fuel to any person for use in a vehicle bearing a
license plate issued by any authority other than that State or a State
contiguous to that State.
(b) ''Odd-even fuel purchase plan'' defined
For purposes of this section the term ''odd-even fuel purchase plan''
means any motor fuel sales restriction under which a person may purchase
motor fuel for use in any vehicle only on days (or other periods of
time) determined on the basis of a number or letter appearing on the
license plate of that vehicle (or on any similar basis).
(Pub. L. 96-102, title II, 222, Nov. 5, 1979, 93 Stat. 767.)
42 USC -- SUBCHAPTER III -- STUDIES
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8531. Study and report
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Study of commercial and industrial storage of fuel
Not later than 180 days after November 5, 1979, the Secretary shall
conduct a study and report to the Congress regarding the commercial and
industrial storage of gasoline and middle distillates (other than
storage in facilities which have capacities of less than 500 gallons or
storage used exclusively and directly for agricultural, residential,
petroleum refining, or pipeline transportation purposes).
(b) Contents of report
Such report shall --
(1) indicate to what extent storage activities have increased since
November 1, 1978, and what business establishments (including utilities)
have been involved;
(2) the estimated amount of gasoline and middle distillates (in the
aggregate and by type and region) which are in storage within the United
States at the time of the study, the amounts which were in storage at
the same time during the calendar year preceding the study, and the
purposes for which such storage is maintained; and
(3) contain such findings and recommendations for legislation and
administrative action as the Secretary considers appropriate, including
recommendations for improving the availability and quality of data
concerning such storage.
(Pub. L. 96-102, title II, 241, Nov. 5, 1979, 93 Stat. 768.)
42 USC -- 8532. Middle distillate monitoring program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Monitoring program
(1) Not later than 60 days after November 5, 1979, the Secretary
shall establish and maintain a data collection program for monitoring,
at the refining, wholesale, and retail levels, the supply and demand
levels of middle distillates on a periodic basis in each State.
(2) The program to be established under paragraph (1) shall provide
for --
(A) the prompt collection of relevant demand and supply data under
the authority available to the Secretary under other law; and
(B) the submission to Congress of periodic reports each containing a
concise narrative analysis of the most recent data which the Secretary
determines are accurate, and a discussion on a State-by-State basis of
trends in such data which the Secretary determines are significant.
(3) All data and information collected under this program shall be
available to the Congress and committees of the Congress, and, in
accordance with otherwise applicable law, to appropriate State and
Federal agencies and the public.
(4) Nothing in this subsection authorizes the direct or indirect
regulation of the price of any middle distillate.
(5) For purposes of this section, the term ''middle distillate'' has
the same meaning as given that term in section 211.51 of title 10, Code
of Federal Regulations, as in effect on November 5, 1979.
(b) Report
Before December 31, 1979, the President shall submit a report to
Congress in which the President shall examine the middle distillate
situation, summarizing the data, information, and analyses described in
subsection (a) of this section and discussing in detail matters required
to be addressed in findings made pursuant to section 760a(d)(1) /1/ of
title 15.
(Pub. L. 96-102, title II, 242, Nov. 5, 1979, 93 Stat. 768.)
Section 760a of title 15, referred to in subsec. (b), was omitted
from the Code pursuant to section 760g of Title 15, Commerce and Trade,
which provided for the expiration of the President's authority under
that section on Sept. 30, 1981.
/1/ See References in Text note below.
42 USC -- SUBCHAPTER IV -- ADMINISTRATIVE PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8541. Administration
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Information
(1) The Secretary shall use the authority provided under section 796
of title 15 for the collection of such information as may be necessary
for the enforcement of the provisions of subchapters I and II of this
chapter.
(2) In carrying out his responsibilities under this chapter, the
Secretary shall insure that timely and adequate information concerning
the supplies, pricing, and distribution of motor fuels (and other energy
sources which are the subject of targets in effect under section 8511 of
this title) is obtained, analyzed, and made available to the public.
Any Federal agency having responsibility for collection of such
information under any other authority shall cooperate fully in
facilitating the collection of such information.
(b) Effect on other laws
No State law or State program in effect on November 5, 1979, or which
may become effective thereafter, shall be superseded by any provision of
this chapter, or any rule, regulation, or order thereunder, except
insofar as such State law or State program is in conflict with any such
provision of section 8513 or 8521 of this title (or any rule,
regulation, or order under this subchapter relating thereto) in any case
in which measures have been implemented in that State under the
authority of section 8513 or 8521 of this title (as the case may be).
(c) Termination
(1) The provisions of subchapters I, II, III, and IV of this chapter,
including any actions taken thereunder, shall cease to have effect on
July 1, 1983.
(2) Such expiration shall not affect any action or pending
proceeding, administrative or civil, not finally determined on such
date, nor any administrative or civil action or proceeding, whether or
not pending, based upon any act committed or liability incurred prior to
such expiration date.
(Pub. L. 96-102, title II, 251, Nov. 5, 1979, 93 Stat. 769.)
42 USC -- CHAPTER 94 -- LOW-INCOME ENERGY ASSISTANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8601 to 8612. Repealed.
8621. Home energy grants.
(a) Authorization.
(b) Authorization of appropriations.
(c) Program year restrictions.
(d) Authorization of appropriations for leveraged resources.
8622. Definitions.
8623. State allotments.
(a) Amount; distribution, computation, etc.
(b) Allotments to insular areas.
(c) Energy crisis intervention.
(d) Allotments to Indian tribes.
(e) Direct payments to households: State option.
(f) Optional transfer of funds to block grants for community service
programs, preventive health services, etc.
8624. Applications and requirements.
(a) Form; assurances; public hearings.
(b) Certifications required for covered activities.
(c) State plan; revision; public inspection.
(d) Expending of funds.
(e) Conduct of audits.
(f) Payments or assistance not to be deemed income or resources for
any purpose under Federal or State law; determination of excess shelter
expense deduction.
(g) Repayment of funds expended improperly; offset.
(h) Periodic evaluation of expenditures by Comptroller General.
(i) Certain recipients of supplemental security income ineligible for
payments or assistance.
(j) State verification of income eligibility; policies and
procedures applicable.
(k) Limitation on use of funds; waiver.
(l) State tax credits to energy suppliers who supply home energy at
reduced rates to low-income households.
8625. Nondiscrimination provisions.
(a) Prohibitions.
(b) Procedures applicable to secure compliance.
(c) Maintenance of civil actions.
8626. Payments to States; fiscal year requirements respecting
availability, etc.
8626a. Incentive program for leveraging non-Federal resources.
(a) Allotment of funds.
(b) ''Leveraged resources'' defined.
(c) Formula for distribution of amounts.
(d) Dollar value of leveraged resources.
(e) Report to Secretary.
(f) Determination of State share; regulations; documentation.
8627. Withholding of funds.
(a) Improper utilization of funds; response to complaints respecting
improprieties.
(b) Investigations; conduct, etc.
(c) Inspection of books, documents, etc.
(d) Request for information not readily available.
8628. Limitation on use of grants for construction.
8628a. Technical assistance and training.
8629. Studies and reports.
42 USC -- SUBCHAPTER I -- HOME ENERGY ASSISTANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8601 to 8612. Repealed. Pub. L. 97-35, title XXVI, 2611,
Aug. 13, 1981, 95 Stat. 902
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section 8601, Pub. L. 96-223, title III, 302, Apr. 2, 1980, 94
Stat. 288, set forth Congressional findings and declaration of purpose
for low-income energy assistance program.
Section 8602, Pub. L. 96-223, title III, 303, Apr. 2, 1980, 94
Stat. 288, defined ''household'', ''home energy'', ''lower living
standard income level'', ''Secretary'', and ''State''.
Section 8603, Pub. L. 96-223, title III, 304, Apr. 2, 1980, 94
Stat. 289, related to authorizations for home energy grants.
Section 8604, Pub. L. 96-223, title III, 305, Apr. 2, 1980, 94
Stat. 289, set forth eligibility requirements for households.
Section 8605, Pub. L. 96-223, title III, 306, Apr. 2, 1980, 94
Stat. 289, set forth provisions respecting allotments for grants.
Section 8606, Pub. L. 96-223, title III, 307, Apr. 2, 1980, 94
Stat. 293, set forth limitations on uses of home energy grants for
fiscal year 1981.
Section 8607, Pub. L. 96-223, title III, 308, Apr. 2, 1980, 94
Stat. 294, set forth provisions respecting submission, contents, etc.,
for State plans.
Section 8608, Pub. L. 96-223, title III, 309, Apr. 2, 1980, 94
Stat. 298, related to uniform collection data.
Section 8609, Pub. L. 96-223, title III, 310, Apr. 2, 1980, 94
Stat. 298, related to amount and methods of payment.
Section 8610, Pub. L. 96-223, title III, 311, Apr. 2, 1980, 94
Stat. 298, related to withholding of payments.
Section 8611, Pub. L. 96-223, title III, 312, Apr. 2, 1980, 94
Stat. 298, set forth criminal penalties for violations of provisions.
Section 8612, Pub. L. 96-223, title III, 313(a)-(c)(1), (d)-(g),
Apr. 2, 1980, 94 Stat. 298, 299, related to administration and
implementation of energy assistance programs.
Section 2611 of Pub. L. 97-35 provided that the repeal made by that
section is effective Oct. 1, 1981.
Section 301 of title III of Pub. L. 96-223, which provided that
title III of Pub. L. 96-223, which enacted sections 8601 to 8612 of
this title, and amended section 2014(d) of Title 7, Agriculture, was to
be cited as the ''Home Energy Assistance Act of 1980'', was repealed by
Pub. L. 97-35, title XXVI, 2611, Aug. 13, 1981, 95 Stat. 902.
42 USC -- SUBCHAPTER II -- LOW-INCOME HOME ENERGY ASSISTANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
ction 3803.
42 USC -- 8621. Home energy grants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authorization
The Secretary of Health and Human Services is authorized to make
grants, in accordance with the provisions of this subchapter, to States
to assist eligible households to meet the costs of home energy.
(b) Authorization of appropriations
There are authorized to be appropriated to carry out the provisions
of this subchapter (other than section 8626a of this title)
$2,307,000,000 for fiscal year 1990, $2,150,000,000 for fiscal year
1991, $2,230,000,000 for fiscal year 1992, and such sums as may be
necessary for each of the fiscal years 1993 and 1994. The
authorizations of appropriations contained in this subsection are
subject to the program year provisions of subsection (c) of this
section.. /1/
(c) Program year restrictions
(1) In fiscal year 1993 and each fiscal year thereafter, amounts
appropriated under this section for any fiscal year for programs and
activities under this subchapter /2/ shall be made available for
obligation only on the basis of a program year. The program year shall
begin on July 1 of the fiscal year for which the appropriation is made.
(2) Amounts appropriated for fiscal year 1993 shall be available both
to fund activities for the period between October 1, 1992, and July 1,
1993, and for the program year beginning July 1, 1993.
(3) There are authorized to be appropriated such additional sums as
may be necessary for the transition to carry out this subsection.
(d) Authorization of appropriations for leveraged resources
There are authorized to be appropriated to carry out section 8626a of
this title, $25,000,000 in fiscal year 1992, and $50,000,000 in each of
the fiscal years 1993 and 1994.
(Pub. L. 97-35, title XXVI, 2602, Aug. 13, 1981, 95 Stat. 893; Pub.
L. 98-558, title VI, 601, Oct. 30, 1984, 98 Stat. 2889; Pub. L.
99-425, title V, 501, Sept. 30, 1986, 100 Stat. 973; Pub. L. 101-501,
title VII, 701, 702, 707(b), Nov. 3, 1990, 104 Stat. 1258, 1261.)
This subchapter, referred to in subsec. (c)(1), was in the original
''this Act'' and was translated as reading ''this title'', meaning title
XXVI of Pub. L. 97-35, known as the Low-Income Energy Assistance Act of
1981, to reflect the probable intent of Congress.
1990 -- Subsec. (b). Pub. L. 101-501, 707(b)(1), which directed the
amendment of this section by inserting ''(other than section 8626a of
this title)'' after ''subchapter'', was executed to subsec. (b) to
reflect the probable intent of Congress.
Pub. L. 101-501, 702, struck out ''$2,050,000,000 for fiscal year
1987, $2,132,000,000 for fiscal year 1988, $2,218,000,000 for fiscal
year 1989, and'' before ''$2,307,000,000'' and inserted '',
$2,150,000,000 for fiscal year 1991, $2,230,000,000 for fiscal year
1992, and such sums as may be necessary for each of the fiscal years
1993 and 1994. The authorizations of appropriations contained in this
subsection are subject to the program year provisions of subsection (c)
of this section.'' after ''1990''.
Subsec. (c). Pub. L. 101-501, 701, added subsec. (c).
Subsec. (d). Pub. L. 101-501, 707(b)(2), added subsec. (d).
1986 -- Subsec. (b). Pub. L. 99-425 amended subsec. (b) generally.
Prior to amendment, subsec. (b) read as follows: ''There is authorized
to be appropriated to carry out the provisions of this subchapter
$2,140,000,000 for the fiscal year 1985, and $2,275,000,000 for the
fiscal year 1986.''
1984 -- Subsec. (b). Pub. L. 98-558 substituted ''$2,140,000,000 for
fiscal year 1985, and $2,275,000,000 for fiscal year 1986'' for
''$1,875,000,000 for each of fiscal years 1982, 1983, and 1984''.
Section 1001 of Pub. L. 101-501 provided that:
''(a) General Effective Date. -- Except as provided in subsection
(b), this Act and the amendments made by this Act (see Tables for
classification) shall take effect on October 1, 1990.
''(b) Special Effective Dates. -- (1) The amendment made by section
207(b) (repealing a provision set out as a note preceding section 9861
of this title) shall take effect immediately before October 1, 1990.
''(2) Section 646(b) of the Head Start Act (section 9841(b) of this
title), as added by section 115, shall take effect on April 1, 1990.''
Section 1001 of Pub. L. 99-425 provided that:
''(a) General Effective Date. -- Except as provided in subsections
(b) and (c), this Act and the amendments made by this Act (enacting
sections 8628a, 9812a, 9910b, and 10901 to 10905 of this title, amending
this section, sections 8623, 8624, 8629, 9803, 9834, 9835, 9837, 9840,
9862, 9867, 9871, 9874, 9877, 9901 to 9904, 9905a, 9908 to 9910, and
9910a of this title and section 4033 of Title 20, Education, enacting
provisions set out as notes under this section and sections 8623, 9801,
and 10901 of this title, and amending provisions set out as notes under
section 9861 of this title and section 1932 of Title 7, Agriculture)
shall take effect on October 1, 1986, or the date of the enactment of
this Act (Sept. 30, 1986), whichever occurs later.
''(b) Effective Date for Energy Crisis Intervention Amendments. --
The amendments made by section 502(a) (amending section 8623 of this
title and enacting provisions set out as a note under section 8623 of
this title) shall take effect on December 1, 1986, or 60 days after the
date of the enactment of this Act (Sept. 30, 1986), whichever occurs
later.
''(c) Application of Certain Other Amendments Relating to Energy
Assistance. -- The amendments made by subsections (a), (b), (c), and (d)
of section 504 (amending section 8624 of this title) shall not apply
with respect to any fiscal year beginning in or before the 60-day period
ending on the effective date of this Act (Oct. 1, 1986).''
Section 609 of Pub. L. 98-558 provided that:
''(a) Except as provided in subsections (b), (c), and (d), the
amendments made by this title (amending this section and sections 8622
to 8624, 8626, 8627, and 8629 of this title) shall take effect on the
date of enactment of this Act (Oct. 30, 1984).
''(b) The amendments made by section 605 (amending section 8624 of
this title) shall take effect on the first day of the first fiscal year
beginning after the date of the enactment of this Act (Oct. 30, 1984).
''(c) The amendments made by section 606 (amending section 8626 of
this title) shall apply to amounts held available for fiscal years
beginning after September 30, 1985.
''(d) The amendment made by section 607 (amending section 8629 of
this title) shall apply to data collected and compiled after the date of
the enactment of this Act (Oct. 30, 1984). Section 2610 of the Act
(section 8629 of this title) as in effect before the date of the
enactment of this Act shall apply with respect to the report submitted
under such section 2610 for fiscal year 1984.''
Section 2601 of title XXVI of Pub. L. 97-35 provided that: ''This
title (enacting this subchapter and repealing subchapter I of this
chapter) may be cited as the 'Low-Income Home Energy Assistance Act of
1981'.''
/1/ So in original.
/2/ See References in Text note below.
42 USC -- 8622. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this subchapter:
(1) The term ''energy crisis'' means weather-related and supply
shortage emergencies and other household energy-related emergencies.
(2) the /1/ term ''household'' means any individual or group of
individuals who are living together as one economic unit for whom
residential energy is customarily purchased in common or who make
undesignated payments for energy in the form of rent; /2/
(3) The term ''home energy'' means a source of heating or cooling in
residential dwellings.
(4) The term ''poverty level'' means, with respect to a household in
any State, the income poverty line as prescribed and revised at least
annually pursuant to section 9902(2) of this title, as applicable to
such State.
(5) The term ''Secretary'' means the Secretary of Health and Human
Services.
(6) The term ''State'' means each of the several States and the
District of Columbia.
(7) The term ''State median income'' means the State median income
promulgated by the Secretary in accordance with procedures established
under section 1397a(a)(6) of this title (as such procedures were in
effect on August 12, 1981) and adjusted, in accordance with regulations
prescribed by the Secretary, to take into account the number of
individuals in the household.
(Pub. L. 97-35, title XXVI, 2603, Aug. 13, 1981, 95 Stat. 894; Pub.
L. 97-115, 16, Dec. 29, 1981, 95 Stat. 1609; Pub. L. 98-558, title VI,
602, Oct. 30, 1984, 98 Stat. 2890.)
In par. (7), ''August 12, 1981'' substituted for ''the day before
the date of the enactment of this Act'', which date of enactment is Aug.
13, 1981.
1984 -- Par. (1). Pub. L. 98-558, 602(a), struck out
''intervention'' after ''energy crisis'' and inserted ''and other
household energy-related emergencies'' at the end.
Par. (4). Pub. L. 98-558, 602(b), substituted ''the income poverty
line as prescribed and revised at least annually pursuant to section
9902(2) of this title,'' for ''the income poverty guidelines for the
nonfarm population of the United States as prescribed by the Office of
Management and Budget (and as adjusted annually pursuant to section
9902(2) of this title)''.
1981 -- Pub. L. 97-115 designated par. (2)(A) as par. (2),
substituted provisions including individuals and groups of individuals
who are living together as one economic unit for whom residential energy
is customarily purchased in the form of rent in the definition of
household, for provisions including individuals who occupy a housing
unit in such definition, and struck out par. (2)(B), which provided
that for purposes of subpar. (A), one or more rooms shall be treated as
a housing unit when occupied as a separate living quarters.
Amendment by Pub. L. 98-558 effective Oct. 30, 1984, see section
609(a) of Pub. L. 98-558, set out as a note under section 8621 of this
title.
/1/ So in original. Probably should be capitalized.
/2/ So in original. The semicolon probably should be a period.
42 USC -- 8623. State allotments
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Amount; distribution, computation, etc.
(1)(A) Except as provided in subparagraph (B), the Secretary shall,
from that percentage of the amount appropriated under section 8621(b) of
this title for each fiscal year which is remaining after reserving any
amount permitted to be reserved under section 8628a of this title and
after the amount of allotments for such fiscal year under subsection
(b)(1) of this section is determined by the Secretary, allot to each
State an amount equal to such remaining percentage multiplied by the
State's allotment percentage.
(B) From the sums appropriated therefor after reserving any amount
permitted to be reserved under section 8628a of this title, if for any
period a State has a plan which is described in section 8624(c)(1) of
this title, the Secretary shall pay to such State an amount equal to 100
percent of the expenditures of such State made during such period in
carrying out such plan, including administrative costs (subject to the
provisions of section 8624(b)(9)(B) of this title), with respect to
households described in section 8624(b)(2) of this title.
(2) For purposes of paragraph (1), for fiscal year 1985 and
thereafter, a State's allotment percentage is the percentage which
expenditures for home energy by low-income households in that State
bears to such expenditures in all States, except that States which
thereby receive the greatest proportional increase in allotments by
reason of the application of this paragraph from the amount they
received pursuant to Public Law 98-139 shall have their allotments
reduced to the extent necessary to ensure that --
(A)(i) no State for fiscal year 1985 shall receive less than the
amount of funds the State received in fiscal year 1984; and
(ii) no State for fiscal year 1986 and thereafter shall receive less
than the amount of funds the State would have received in fiscal year
1984 if the appropriations for this subchapter for fiscal year 1984 had
been $1,975,000,000, and
(B) any State whose allotment percentage out of funds available to
States from a total appropriation of $2,250,000,000 would be less than 1
percent, shall not, in any year when total appropriations equal or
exceed $2,250,000,000, have its allotment percentage reduced from the
percentage it would receive from a total appropriation of
$2,140,000,000.
(3) If the sums appropriated for any fiscal year for making grants
under this subchapter are not sufficient to pay in full the total amount
allocated to a State under paragraph (1) for such fiscal year, the
amount which all States will receive under this subchapter for such
fiscal year shall be ratably reduced.
(4) For the purpose of this section, the Secretary shall determine
the expenditure for home energy by low-income households on the basis of
the most recent satisfactory data available to the Secretary.
(b) Allotments to insular areas
(1) The Secretary shall apportion not less than one-tenth of 1
percent, and not more than one-half of 1 percent, of the amounts
appropriated for each fiscal year to carry out this subchapter on the
basis of need among the Commonwealth of Puerto Rico, Guam, American
Samoa, the Virgin Islands, the Northern Mariana Islands, and the Trust
Territory of the Pacific Islands. The Secretary shall determine the
total amount to be apportioned under this paragraph for any fiscal year
(which shall not exceed one-half of 1 percent) after evaluating the
extent to which each jurisdiction specified in the preceding sentence
requires assistance under this paragraph for the fiscal year involved.
(2) Each jurisdiction to which paragraph (1) applies may receive
grants under this subchapter upon an application submitted to the
Secretary containing provisions which describe the programs for which
assistance is sought under this subchapter, and which are consistent
with the requirements of section 8624 of this title.
(c) Energy crisis intervention
Of the funds available to each State under subsection (a) of this
section, a reasonable amount based on data from prior years shall be
reserved until March 15 of each program year by each State for energy
crisis intervention. The program for which funds are reserved by this
subsection shall be administered by public or nonprofit entities which
have experience in administering energy crisis programs under the
Low-Income Energy Assistance Act of 1980, or under this subchapter, /1/
experience in assisting low-income individuals in the area to be served,
the capacity to undertake a timely and effective energy crisis
intervention program, and the ability to carry out the program in local
communities. The program for which funds are reserved under this
subsection shall --
(1) not later than 48 hours after a household applies for energy
crisis benefits, provide some form of assistance that will resolve the
energy crisis if such household is eligible to receive such benefits;
(2) not later than 18 hours after a household applies for crisis
benefits, provide some form of assistance that will resolve the energy
crisis if such household is eligible to receive such benefits and is in
a life-threatening situation; and
(3) require each entity that administers such program --
(A) to accept applications for energy crisis benefits at sites that
are geographically accessible to all households in the area to be served
by such entity; and
(B) to provide to low-income individuals who are physically infirm
the means --
(i) to submit applications for energy crisis benefits without leaving
their residences; or
(ii) to travel to the sites at which such application /2/ are
accepted by such entity.
The preceding sentence shall not apply to a program in a geographical
area affected by a natural disaster in the United States designated by
the Secretary, or by a major disaster or emergency designated by the
President under the Disaster Relief Act of 1974 /1/
(42 U.S.C. 5121 et seq.), for so long as such designation remains in
effect, if the Secretary determines that such disaster or such emergency
makes compliance with such sentence impracticable.
(d) Allotments to Indian tribes
(1) If, with respect to any State, the Secretary --
(A) receives a request from the governing organization of an Indian
tribe within the State that assistance under this subchapter be made
directly to such organization; and
(B) determines that the members of such tribe would be better served
by means of grants made directly to provide benefits under this
subchapter;
the Secretary shall reserve from amounts which would otherwise be
payable to such State from amounts allotted to it under this subchapter
for the fiscal year involved the amount determined under paragraph (2).
(2) The amount determined under this paragraph for a fiscal year is
the amount which bears the same ratio to the amount which would (but for
this subsection) be allotted to such State under this subchapter for
such fiscal year (other than by reason of section 8626(b)(2) of this
title) as the number of Indian households described in subparagraphs (A)
and (B) of section 8624(b)(2) of this title and residing within the
State on the reservation of the tribes or on trust lands adjacent to
such reservation bears to the number of all households described in
subparagraphs (A) and (B) of section 8624(b)(2) of this title in such
State, or such greater amount as the Indian tribe and the State may
agree upon. In cases where a tribe has no reservation, the Secretary,
in consultation with the tribe and the State, shall define the number of
Indian households for the determination under this paragraph.
(3) The sums reserved by the Secretary on the basis of a
determination under this subsection shall be granted to --
(A) the tribal organization serving the individuals for whom such a
determination has been made; or
(B) in any case where there is no tribal organization serving an
individual for whom such a determination has been made, such other
entity as the Secretary determines has the capacity to provide
assistance pursuant to this subchapter.
(4) In order for a tribal organization or other entity to be eligible
for an amount under this subsection for a fiscal year, it shall submit
to the Secretary a plan (in lieu of being under the State's plan) for
such fiscal year which meets such criteria as the Secretary may by
regulations prescribe.
(e) Repealed. Pub. L. 98-558, 603(c), Oct. 30, 1984, 98 Stat.
2890
(f) Optional transfer of funds to block grants for community service
programs, preventive health services, etc.
(1) A State may transfer in accordance with paragraph (2) a
percentage of the funds payable to it under this section for any fiscal
year for its use for such fiscal year under other provisions of Federal
law providing block grants for --
(A) support of activities under subtitle B of title VI (relating to
community services block grant program) (42 U.S.C. 9901 et seq.);
(B) support of activities under title XX of the Social Security Act
(42 U.S.C. 1397 et seq.); or
(C) support of preventive health services, alcohol, drug, and mental
health services, and primary care under title XIX of the Public Health
Service Act (42 U.S.C. 300w et seq.), and maternal and child health
services under title V of the Social Security Act (42 U.S.C. 701 et
seq.);
or a combination of the activities described in subparagraphs (A),
(B), and (C). Amounts allotted to a State under any provisions of
Federal law referred to in the preceding sentence and transferred by a
State for use in carrying out the purposes of this subchapter shall be
treated as if they were paid to the State under this subchapter but
shall not affect the computation of the State's allotment under this
subchapter. The State shall inform the Secretary of any such transfer
of funds.
(2)(A) Not to exceed 10 percent of the funds payable to a State under
this section for each of the fiscal years 1991 through 1993 may be
transferred under paragraph (1).
(B) Beginning in fiscal year 1994, no funds payable to a State under
this section shall be transferred under paragraph (1).
(Pub. L. 97-35, title XXVI, 2604, Aug. 13, 1981, 95 Stat. 894; Pub.
L. 98-558, title VI, 603, 604, Oct. 30, 1984, 98 Stat. 2890; Pub. L.
99-425, title V, 502(a), 503, 505(b), Sept. 30, 1986, 100 Stat.
973-975; Pub. L. 101-501, title VII, 703, Nov. 3, 1990, 104 Stat.
1258.)
Public Law 98-139, referred to in subsec. (a)(2), is Pub. L.
98-139, Oct. 31, 1983, 97 Stat. 871, known as the Departments of
Labor, Health and Human Services, and Education, and Related Agencies
Appropriation Act, 1984. For complete classification of this Act to the
Code see Tables.
The Low-Income Energy Assistance Act of 1980, referred to in subsec.
(c), probably means the Home Energy Assistance Act of 1980, which is
title III of Pub. L. 96-223, Apr. 2, 1980, 94 Stat. 288, and which
was classified generally to subchapter I of this chapter prior to repeal
by Pub. L. 97-35, title XXVI, 2611, Aug. 13, 1981, 95 Stat. 902. For
complete classification of this Act to the Code, see Tables.
This subchapter, referred to in subsec. (c), was in the original
''this Act'' which was translated as reading ''this title'', meaning
title XXVI of Pub. L. 97-35, as the probable intent of Congress.
The Disaster Relief Act of 1974, referred to in subsec. (c), is Pub.
L. 93-288, May 22, 1974, 88 Stat. 143, as amended, which is classified
principally to chapter 68 ( 5121 et seq.) of this title. The 1974 Act
was renamed the Robert T. Stafford Disaster Relief and Emergency
Assistance Act, and was substantially revised by Pub. L. 100-707, Nov.
23, 1988, 102 Stat. 4689. Section 102(b) of Pub. L. 100-707 provided
that a reference in any other law to a provision of the Disaster Relief
Act of 1974 shall be deemed to be a reference to such provision of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act. For
complete classification of this Act to the Code, see Short Title note
set out under section 5121 of this title and Tables.
Subtitle B of title VI, referred to in subsec. (f)(1)(A), is
subtitle B of title VI of Pub. L. 97-35, 671-683, Aug. 13, 1981, 95
Stat. 511, known as the Community Services Block Grant Act, as amended,
which is classified generally to chapter 106 ( 9901 et seq.) of this
title. For complete classification of this Act to the Code, see Short
Title note set out under section 9901 of this title and Tables.
The Social Security Act, referred to in subsec. (f)(1)(B), (C), is
act Aug. 14, 1935, ch. 531, 49 Stat. 620, as amended. Titles V and
XX of the Social Security Act are classified principally to subchapters
V ( 701 et seq.) and XX ( 1397 et seq.) of chapter 7 of this title. For
complete classification of this Act to the Code, see section 1305 of
this title and Tables.
The Public Health Service Act, referred to in subsec. (f)(1)(C), is
act July 1, 1944, ch. 373, 58 Stat. 682, as amended. Title XIX of the
Public Health Services Act is classified generally to subchapter XVII (
300w et seq.) of chapter 6A of this title. For complete classification
of this Act to the Code, see Short Title note set out under section 201
of this title and Tables.
1990 -- Subsec. (f). Pub. L. 101-501 designated existing provisions
as par. (1), redesignated former pars. (1) to (3) as subpars. (A) to
(C), respectively, substituted ''in accordance with paragraph (2) a
percentage'' for ''up to 10 percent'', ''or a combination'' for ''or any
combination'', and ''subparagraphs (A), (B), and (C)'' for ''paragraphs
(1), (2), and (3)'', and added par. (2).
1986 -- Subsec. (a)(1)(A). Pub. L. 99-425, 505(b)(1), inserted
''after reserving any amount permitted to be reserved under section
8628a of this title and'' after ''remaining''.
Subsec. (a)(1)(B). Pub. L. 99-425, 505(b)(2), inserted ''after
reserving any amount permitted to be reserved under section 8628a of
this title'' after ''therefor''.
Subsec. (c). Pub. L. 99-425, 502(a), substituted ''the capacity''
for ''and the capacity'', inserted '', and the ability to carry out the
program in local communities'', and inserted provisions relating to
hourly time periods in which the program must respond, application for
benefits, and nonapplicability of the program to areas affected by a
natural disaster or major disaster.
Subsec. (d)(2). Pub. L. 99-425, 503, substituted ''and residing
within the State on the reservation of the tribes or on trust lands
adjacent to such reservation'' for ''in such State with respect to which
a determination under this subsection is made'', inserted '', or such
greater amount as the Indian tribe and the State may agree upon'', and
inserted ''In cases where a tribe has no reservation, the Secretary, in
consultation with the tribe and the State, shall define the number of
Indian households for the determination under this paragraph.''
1984 -- Subsec. (a)(2). Pub. L. 98-558, 604(a), amended par. (2)
generally, substituting provisions relating to State allotment
computation for former provisions which also related to computation of
State allotment formulas and adding subpars. (A) and (B).
Subsec. (a)(4). Pub. L. 98-558, 604(b), added par. (4).
Subsec. (c). Pub. L. 98-558, 603(a), inserted ''until March 15 of
each program year'' after ''reserved'' and inserted ''The program for
which funds are reserved by this subsection shall be administered by
public or nonprofit entities which have experience in administering
energy crisis programs under the Low-Income Energy Assistance Act of
1980, or under this subchapter, experience in assisting low-income
individuals in the area to be served, and the capacity to undertake a
timely and effective energy crisis intervention program.''
Subsec. (d)(1). Pub. L. 98-558, 603(b), substituted ''otherwise be
payable'' for ''otherwise be paid'' in provisions following subpar.
(B).
Subsec. (e). Pub. L. 98-558, 603(c), struck out subsec. (e) which
related to direct payments to households and State options.
Subsec. (f). Pub. L. 98-558, 603(d), substituted ''the funds payable
to it'' for ''its allotment''.
Amendment by Pub. L. 101-501 effective Oct. 1, 1990, see section
1001(a) of Pub. L. 101-501, set out as a note under section 8621 of
this title.
Amendment by section 502(a) of Pub. L. 99-425 effective Dec. 1,
1986, and amendment by sections 503 and 505(b) of Pub. L. 99-425
effective Oct. 1, 1986, see section 1001 of Pub. L. 99-425, set out as
a note under section 8621 of this title.
Amendment by Pub. L. 98-558 effective Oct. 30, 1984, see section
609(a) of Pub. L. 98-558, set out as a note under section 8621 of this
title.
Section 502(b) of Pub. L. 99-425 provided that: ''Not later than 60
days after the date of the enactment of this Act (Sept. 30, 1986), the
Secretary of Health and Human Services shall issue rules to carry out
the amendments made by subsection (a) (amending this section).''
/1/ See References in Text note below.
/2/ So in original. Probably should be ''applications''.
42 USC -- 8624. Applications and requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Form; assurances; public hearings
(1) Each State desiring to receive an allotment for any fiscal year
under this subchapter shall submit an application to the Secretary.
Each such application shall be in such form as the Secretary shall
require. Each such application shall contain assurances by the chief
executive officer of the State that the State will meet the conditions
enumerated in subsection (b) of this section.
(2) After the expiration of the first fiscal year for which a State
receives funds under this subchapter, no funds shall be allotted to such
State for any fiscal year under this subchapter unless such State
conducts public hearings with respect to the proposed use and
distribution of funds to be provided under this subchapter for such
fiscal year.
(b) Certifications required for covered activities
As part of the annual application required by subsection (a) of this
section, the chief executive officer of each State shall certify that
the State agrees to --
(1) use the funds available under this subchapter for the purposes
described in section 8621(a) of this title and otherwise in accordance
with the requirements of this subchapter, and agrees not to use such
funds for any payments other than payments specified in this section;
(2) make payments under this subchapter only with respect to --
(A) households in which 1 or more individuals are receiving --
(i) aid to families with dependent children under the State's plan
approved under part A of title IV of the Social Security Act (42 U.S.C.
601 et seq.) (other than such aid in the form of foster care in
accordance with section 408 /1/ of such Act) (42 U.S.C. 608);
(ii) supplemental security income payments under title XVI of the
Social Security Act (42 U.S.C. 1381 et seq.);
(iii) food stamps under the Food Stamp Act of 1977 (7 U.S.C. 2011 et
seq.); or
(iv) payments under section 1315, 1521, 1541, or 1542 of title 38, or
under section 306 of the Veterans' and Survivors' Pension Improvement
Act of 1978; or
(B) households with incomes which do not exceed the greater of --
(i) an amount equal to 150 percent of the poverty level for such
State; or
(ii) an amount equal to 60 percent of the State median income;
except that no household may be excluded from eligibility under this
subclause for payments under this subchapter for fiscal year 1986 and
thereafter if the household has an income which is less than 110 percent
of the poverty level for such State for such fiscal year /2/
(3) conduct outreach activities designed to assure that eligible
households, especially households with elderly individuals or
handicapped individuals, or both, are made aware of the assistance
available under this subchapter, and any similar energy-related
assistance available under subtitle B of title VI (relating to community
services block grant program) (42 U.S.C. 9901 et seq.) or under any
other provision of law which carries out programs which were
administered under the Economic Opportunity Act of 1964 (42 U.S.C. 2701
et seq.) before August 13, 1981;
(4) coordinate its activities under this subchapter with similar and
related programs administered by the Federal Government and such State,
particularly low-income energy-related programs under subtitle B of
title VI (relating to community services block grant program) (42 U.S.C.
9901 et seq.), under the supplemental security income program, under
part A of title IV of the Social Security Act (42 U.S.C. 601 et seq.),
under title XX of the Social Security Act (42 U.S.C. 1397 et seq.),
under the low-income weatherization assistance program under title IV of
the Energy Conservation and Production Act (42 U.S.C. 6851 et seq.), or
under any other provision of law which carries out programs which were
administered under the Economic Opportunity Act of 1964 (42 U.S.C. 2701
et seq.) before August 13, 1981;
(5) provide, in a timely manner, that the highest level of assistance
will be furnished to those households which have the lowest incomes and
the highest energy costs in relation to income, taking into account
family size, except that the State may not differentiate in implementing
this section between the households described in clause (2)(A) and
(2)(B) of this subsection;
(6) to the extent it is necessary to designate local administrative
agencies in order to carry out the purposes of this subchapter, give
special consideration, in the designation of such agencies, to any local
public or private nonprofit agency which was receiving Federal funds
under any low-income energy assistance program or weatherization program
under the Economic Opportunity Act of 1964 (42 U.S.C. 2701 et seq.) or
any other provision of law on August 12, 1981, except that --
(A) the State shall, before giving such special consideration,
determine that the agency involved meets program and fiscal requirements
established by the State; and
(B) if there is no such agency because of any change in the
assistance furnished to programs for economically disadvantaged persons,
then the State shall give special consideration in the designation of
local administrative agencies to any successor agency which is operated
in substantially the same manner as the predecessor agency which did
receive funds for the fiscal year preceding the fiscal year for which
the determination is made;
(7) if the State chooses to pay home energy suppliers directly,
establish procedures to --
(A) notify each participating household of the amount of assistance
paid on its behalf;
(B) assure that the home energy supplier will charge the eligible
household, in the normal billing process, the difference between the
actual cost of the home energy and the amount of the payment made by the
State under this subchapter;
(C) assure that the home energy supplier will provide assurances that
any agreement entered into with a home energy supplier under this
paragraph will contain provisions to assure that no household receiving
assistance under this subchapter will be treated adversely because of
such assistance under applicable provisions of State law or public
regulatory requirements; and
(D) assure that any home energy supplier receiving direct payments
agrees not to discriminate, either in the cost of the goods supplied or
the services provided, against the eligible household on whose behalf
payments are made;
(8) provide assurances that (A) the State will not exclude households
described in clause (2)(B) of this subsection from receiving home energy
assistance benefits under clause (2), and (B) the State will treat
owners and renters equitably under the program assisted under this
subchapter;
(9) provide that --
(A) the State may use for planning and administering the use of funds
under this subchapter an amount not to exceed 10 percent of the funds
payable to such State under this subchapter for a fiscal year and not
transferred pursuant to section 8623(f) of this title for use under
another block grant; and
(B) the State will pay from non-Federal sources the remaining costs
of planning and administering the program assisted under this subchapter
and will not use Federal funds for such remaining costs;
(10) provide that such fiscal control and fund accounting procedures
will be established as may be necessary to assure the proper disbursal
of and accounting for Federal funds paid to the State under this
subchapter, including procedures for monitoring the assistance provided
under this subchapter, and provide that at least every two years the
State shall prepare an audit of its expenditures of amounts received
under this subchapter and amounts transferred to carry out the purposes
of this subchapter;
(11) permit and cooperate with Federal investigations undertaken in
accordance with section 8627 of this title;
(12) provide for timely and meaningful public participation in the
development of the plan described in subsection (c) of this section;
(13) provide an opportunity for a fair administrative hearing to
individuals whose claims for assistance under the plan described in
subsection (c) of this section are denied or are not acted upon with
reasonable promptness;
(14) cooperate with the Secretary with respect to data collecting and
reporting under section 8629 of this title; and
(15) beginning in fiscal year 1992, provide, in addition to such
services as may be offered by State Departments of Public Welfare at the
local level, outreach and intake functions for crisis situations and
heating and cooling assistance that is administered by additional State
and local governmental entities or community-based organizations (such
as community action agencies, area agencies on aging, and not-for-profit
neighborhood-based organizations), and in States where such
organizations do not administer intake functions as of September 30,
1991, preference in awarding grants or contracts for intake services
shall be provided to those agencies that administer the low-income
weatherization or energy crisis intervention programs.
The Secretary may not prescribe the manner in which the States will
comply with the provisions of this subsection. The Secretary shall
issue regulations to prevent waste, fraud, and abuse in the programs
assisted by this subchapter.
(c) State plan; revision; public inspection
(1) As part of the annual application required in subsection (a) of
this section, the chief executive officer of each State shall prepare
and furnish to the Secretary, in such format as the Secretary may
require, a plan which --
(A) describes the eligibility requirements to be used by the State
for each type of assistance to be provided under this subchapter,
including criteria for designating an emergency under section 8623(c) of
this title;
(B) describes the benefit levels to be used by the States for each
type of assistance including assistance to be provided for emergency
crisis intervention and for weatherization and other energy-related home
repair;
(C) contains estimates of the amount of funds the State will use for
each of the programs under such plan and describes the alternative use
of funds reserved under section 8623(c) of this title in the event any
portion of the amount so reserved is not expended for emergencies;
(D) describes weatherization and other energy-related home repair the
State will provide under subsection (k) of this section;
(E) describes how the State will carry out assurances in clauses (3),
(4), (5), (6), (7), (8), (10), (12), and (13) of subsection (b) of this
section; and
(F) contains any other information determined by the Secretary to be
appropriate for purposes of this subchapter.
The chief executive officer may revise any plan prepared under this
paragraph and shall furnish the revised plan to the Secretary.
(2) Each plan prepared under paragraph (1) and each substantial
revision thereof shall be made available for public inspection within
the State involved in such a manner as will facilitate timely and
meaningful review of, and comment upon, such plan or substantial
revision.
(3) Not later than April 1 of each fiscal year the Secretary shall
make available to the States a model State plan format that may be used,
at the option of each State, to prepare the plan required under
paragraph (1) for the next fiscal year.
(d) Expending of funds
The State shall expend funds in accordance with the State plan under
this subchapter or in accordance with revisions applicable to such plan.
(e) Conduct of audits
Each State shall, in carrying out the requirements of subsection
(b)(10) of this section, obtain financial and compliance audits of any
funds which the State receives under this subchapter. Such audits shall
be made public within the State on a timely basis. The audits shall be
conducted at least every two years by an organization or person
independent of any agency administering activities under this
subchapter. The audits shall be conducted in accordance with the
Comptroller General's standards for audit of governmental organizations,
programs, activities, and functions. Within 30 days after completion of
each audit, the chief executive officer of the State shall submit a copy
of the audit to the legislature of the State and to the Secretary.
(f) Payments or assistance not to be deemed income or resources for
any purpose under Federal or State law; determination of excess shelter
expense deduction
(1) Notwithstanding any other provision of law unless enacted in
express limitation of this paragraph, the amount of any home energy
assistance payments or allowances provided directly to, or indirectly
for the benefit of, an eligible household under this subchapter shall
not be considered income or resources of such household (or any member
thereof) for any purpose under any Federal or State law, including any
law relating to taxation, food stamps, public assistance, or welfare
programs.
(2) For purposes of paragraph (1) of this subsection and for purposes
of determining any excess shelter expense deduction under section 5(e)
of the Food Stamp Act of 1977 (7 U.S.C. 2014(e)) --
(A) the full amount of such payments or allowances shall be deemed to
be expended by such household for heating or cooling expenses, without
regard to whether such payments or allowances are provided directly to,
or indirectly for the benefit of, such household; and
(B) no distinction may be made among households on the basis of
whether such payments or allowances are provided directly to, or
indirectly for the benefit of, any of such households.
(g) Repayment of funds expended improperly; offset
The State shall repay to the United States amounts found not to have
been expended in accordance with this subchapter or the Secretary may
offset such amounts against any other amount to which the State is or
may become entitled under this subchapter.
(h) Periodic evaluation of expenditures by Comptroller General
The Comptroller General of the United States shall, from time to time
(but not less frequently than every three years), evaluate the
expenditures by States of grants under this subchapter in order to
assure that expenditures are consistent with the provisions of this
subchapter and to determine the effectiveness of the State in
accomplishing the purposes of this subchapter.
(i) Certain recipients of supplemental security income ineligible for
payments or assistance
A household which is described in subsection (b)(2)(A) of this
section solely by reason of clause (ii) thereof shall not be treated as
a household described in subsection (b)(2) of this section if the
eligibility of the household is dependent upon --
(1) an individual whose annual supplemental security income benefit
rate is reduced pursuant to section 1611(e)(1) of the Social Security
Act (42 U.S.C. 1382(e)(1)) by reason of being in an institution
receiving payments under title XIX of the Social Security Act (42 U.S.C.
1396 et seq.) with respect to such individual;
(2) an individual to whom the reduction specified in section
1612(a)(2)(A)(i) of the Social Security Act (42 U.S.C.
1382a(a)(2)(A)(i)) applies; or
(3) a child described in section 1614(f)(2) of the Social Security
Act (42 U.S.C. 1382c(f)(2)) who is living together with a parent, or the
spouse of a parent, of the child.
(j) State verification of income eligibility; policies and
procedures applicable
In verifying income eligibility for purposes of subsection (b)(2)(B)
of this section, the State may apply procedures and policies consistent
with procedures and policies used by the State agency administering
programs under part A of title IV of the Social Security Act (42 U.S.C.
601 et seq.), under title XX of the Social Security Act (42 U.S.C. 1397
et seq.), under subtitle B of title VI of this Act (relating to
community services block grant program) (42 U.S.C. 9901 et seq.), under
any other provision of law which carries out programs which were
administered under the Economic Opportunity Act of 1964 (42 U.S.C. 2701
et seq.) before August 13, 1981, or under other income assistance or
service programs (as determined by the State).
(k) Limitation on use of funds; waiver
(1) Except as provided in paragraph (2), not more than 15 percent of
the greater of --
(A) the funds allotted to a State under this subchapter for any
fiscal year; or
(B) the funds available to such State under this subchapter for such
fiscal year;
may be used by the State for low-cost residential weatherization or
other energy-related home repair for low-income households.
(2)(A) If a State receives a waiver granted under subparagraph (B)
for a fiscal year, the State may use not more than the greater of 25
percent of --
(i) the funds allotted to a State under this subchapter for such
fiscal year; or
(ii) the funds available to such State under this subchapter for such
fiscal year;
for residential weatherization or other energy-related home repair
for low-income households.
(B) For purposes of subparagraph (A), the Secretary may grant a
waiver to a State for a fiscal year if the State submits a written
request to the Secretary after March 31 of such fiscal year and if the
Secretary determines, after reviewing such request and any public
comments, that --
(i)(I) the number of households in the State that will receive
benefits, other than weatherization and energy-related home repair,
under this subchapter in such fiscal year will not be fewer than the
number of households in the State that received benefits, other than
weatherization and energy-related home repair, under this subchapter in
the preceding fiscal year;
(II) the aggregate amounts of benefits that will be received under
this subchapter by all households in the State in such fiscal year will
not be less than the aggregate amount of such benefits that were
received under this subchapter by all households in the State in the
preceding fiscal year; and
(III) such weatherization activities have been demonstrated to
produce measurable savings in energy expenditures by low-income
households; or
(ii) in accordance with rules issued by the Secretary, the State
demonstrates good cause for failing to satisfy the requirements
specified in clause (i).
(l) State tax credits to energy suppliers who supply home energy at
reduced rates to low-income households
(1) Any State may use amounts provided under this subchapter for the
purpose of providing credits against State tax to energy suppliers who
supply home energy at reduced rates to low-income households.
(2) Any such credit provided by a State shall not exceed the amount
of the loss of revenue to such supplier on account of such reduced rate.
(3) Any certification for such tax credits shall be made by the
State, but such State may use Federal data available to such State with
respect to recipients of supplemental security income benefits if timely
delivery of benefits to households described in subsection (b) of this
section and suppliers will not be impeded by the use of such data.
(Pub. L. 97-35, title XXVI, 2605, Aug. 13, 1981, 95 Stat. 896; Pub.
L. 98-558, title VI, 605, Oct. 30, 1984, 98 Stat. 2891; Pub. L.
99-425, title V, 504, Sept. 30, 1986, 100 Stat. 974; Pub. L. 101-501,
title VII, 704, 705, Nov. 3, 1990, 104 Stat. 1259; Pub. L. 102-83,
5(c)(2), Aug. 6, 1991, 105 Stat. 406.)
The Social Security Act, referred to in subsecs. (b)(2)(A)(i), (ii),
(4), (i)(1), and (j), is act Aug. 14, 1935, ch. 531, 49 Stat. 620, as
amended. Part A of title IV of the Social Security Act is classified
generally to part A ( 601 et seq.) of subchapter IV of chapter 7 of this
title. Titles XVI, XIX, and XX of the Social Security Act are
classified generally to subchapters XVI ( 1381 et seq.), XIX ( 1396 et
seq.), and XX ( 1397 et seq.) of chapter 7 of this title, respectively.
Section 408 of the Social Security Act (42 U.S.C. 608) was repealed by
Pub. L. 96-272, title I, 101(a)(2)(A), June 17, 1980, 94 Stat. 512.
For complete classification of this Act to the Code, see section 1305 of
this title and Tables.
The Food Stamp Act of 1977, referred to in subsec. (b)(2)(A)(iii),
is Pub. L. 88-525, Aug. 31, 1964, 78 Stat. 703, as amended, which is
classified generally to chapter 51 ( 2011 et seq.) of Title 7,
Agriculture. For complete classification of this Act to the Code, see
Short Title note set out under section 2011 of Title 7 and Tables.
Section 306 of the Veterans' and Survivors' Pension Improvement Act
of 1978, referred to in subsec. (b)(2)(A)(iv), is section 306 of Pub.
L. 95-588, title III, Nov. 4, 1978, 92 Stat. 2508, which is set out as
a note under section 521 of Title 38, Veterans' Benefits.
Subtitle B of title VI, referred to in subsecs. (b)(3), (4), and
(j), is subtitle B of title VI of Pub. L. 97-35, 671 to 683, Aug.
13, 1981, 95 Stat. 511, as amended, known as the Community Services
Block Grant Act, which is classified generally to chapter 106 ( 9901 et
seq.) of this title. For complete classification of this Act to the
Code, see Short Title note set out under section 9901 of this title and
Tables.
The Economic Opportunity Act of 1964, referred to in subsecs.
(b)(3), (4), (6), and (j), is Pub. L. 88-452, Aug. 20, 1964, 78 Stat.
508, as amended, which was classified generally to chapter 34 ( 2701 et
seq.) of this title prior to repeal, except for titles VIII and X, by
Pub. L. 97-35, title VI, 683(a), Aug. 13, 1981, 95 Stat. 519. Titles
VIII and X of the Act are classified generally to subchapters VIII (
2991 et seq.) and X ( 2996 et seq.) of chapter 34 of this title. For
complete classification of this Act to the Code, see Tables.
The Energy Conservation and Production Act, referred to in subsec.
(b)(4), is Pub. L. 94-385, Aug. 14, 1976, 90 Stat. 1142, as amended.
Title IV of the Energy Conservation and Production Act is classified
principally to subchapter III ( 6851 et seq.) of chapter 81 of this
title. For complete classification of this Act to the Code, see Short
Title note set out under section 6801 of this title and Tables.
In subsec. (b)(6), ''August 12, 1981'' substituted for ''the day
before the date of the enactment of this Act'', which date of enactment
is Aug. 13, 1981.
1991 -- Subsec. (b)(2)(A)(iv). Pub. L. 102-83 substituted ''section
1315, 1521, 1541, or 1542 of title 38'' for ''section 415, 521, 541, or
542 of title 38''.
1990 -- Subsec. (b)(12). Pub. L. 101-501, 704(a)(1), inserted
''timely and meaningful'' after ''provide for''.
Subsec. (b)(15). Pub. L. 101-501, 704(a)(2)-(4), which directed
amendment of subsec. (b) by adding par. (15) at the end, was executed
by adding par. (15) after par. (14) and before last sentence to
reflect the probable intent of Congress.
Subsec. (c)(2). Pub. L. 101-501, 704(b), inserted ''timely and
meaningful'' after ''will facilitate''.
Subsec. (k). Pub. L. 101-501, 705, designated existing provisions as
par. (1), redesignated former pars. (1) and (2) as subpars. (A) and
(B), respectively, substituted ''Except as provided in paragraph (2),
not'' for ''Not'', and added par. (2).
1986 -- Subsec. (b)(5). Pub. L. 99-425, 504(a), substituted ''in a
timely manner'' for ''in a manner consistent with the efficient and
timely payment of benefits''.
Subsec. (b)(14) to (17). Pub. L. 99-425, 504(b), redesignated cl.
(17) as (14), and struck out former cls. (14) to (16) which read as
follows:
''(14) describe the procedures by which households in the State are
identified as eligible to participate under this subchapter and the
manner in which the State determines benefit levels;
''(15) describe the amount that the State will reserve in accordance
with section 8623(c) of this title in each fiscal year for energy crisis
intervention activities together with the administrative procedures (A)
for designating an emergency, (B) for determining the assistance to be
provided in any such emergency, and (C) for the use of funds reserved
under such section for the purposes under this subchapter in the event
any portion of the amount so reserved is not expended for emergencies.
''(16) describe energy usage and the average cost of home energy in
the State, identified by type of fuel and by region of the State;''.
Subsec. (c)(1). Pub. L. 99-425, 504(c), revised provisions relating
to requirements for State plans, restating as subpars. (A) to (F),
provisions of former subpars. (A) to (E).
Subsec. (c)(3). Pub. L. 99-425, 504(d), added par. (3).
Subsec. (f). Pub. L. 99-425, 504(e), designated existing provisions
as par. (1), substituted ''provided directly to, or indirectly for the
benefit of'' for ''provided to'', and added par. (2).
1984 -- Subsec. (b). Pub. L. 98-558, 605(a)(9), inserted at end
''The Secretary shall issue regulations to prevent waste, fraud, and
abuse in the programs assisted by this subchapter.''.
Subsec. (b)(1). Pub. L. 98-558, 605(a)(1), substituted ''section''
for ''subsection''.
Subsec. (b)(2)(B). Pub. L. 98-558, 605(a)(2), inserted ''except that
no household may be excluded from eligibility under this subclause for
payments under this subchapter for fiscal year 1986 and thereafter if
the household has an income which is less than 110 percent of the
poverty level for such State for such fiscal year''.
Subsec. (b)(5). Pub. L. 98-558, 605(a)(3), inserted '', except that
the State may not differentiate in implementing this section between the
households described in clause (2)(A) and (2)(B) of this subsection''.
Subsec. (b)(7)(C). Pub. L. 98-558, 605(a)(4), substituted
''adversely'' for ''any differently''.
Subsec. (b)(8). Pub. L. 98-558, 605(a)(5), designated existing
provisions as subpar. (B) and added subpar. (A).
Subsec. (b)(9)(A). Pub. L. 98-558, 605(a)(6), in amending subpar.
(A) generally, struck out ''in each fiscal year'' before ''the State
may'' and substituted ''for a fiscal year and not transferred pursuant
to section 8623(f) of this title for use under another block grant'' for
''for such fiscal year''.
Subsec. (b)(10). Pub. L. 98-558, 605(a)(7), substituted ''every two
years'' for ''every year''.
Subsec. (b)(14) to (17). Pub. L. 98-558, 605(a)(8), added pars.
(14) to (17).
Subsec. (c)(1). Pub. L. 98-558, 605(b)(1), in amending par. (1)
generally, designated existing provisions as subpar. (A) and added
subpars. (B) to (E).
Subsec. (c)(2). Pub. L. 98-558, 605(b)(2), inserted ''and each
substantial revision thereof'' and ''or substantial revision'' at the
end.
Subsec. (d). Pub. L. 98-558, 605(c), in amending subsec. (d)
generally, substituted provisions that the State shall expend funds in
accordance with the State plan or revisions thereto for former
provisions which related to waiver of requirements.
Subsec. (e). Pub. L. 98-558, 605(d), in amending subsec. (e)
generally, inserted provisions requiring that the audits be made public
and that they shall be conducted in accordance with the Comptroller
General's standards.
Subsec. (f). Pub. L. 98-558, 605(e), inserted ''unless enacted in
express limitation of this paragraph''.
Subsec. (h). Pub. L. 98-558, 605(f), inserted ''(but not less
frequently than every three years)''.
Amendment by Pub. L. 101-501 effective Oct. 1, 1990, see section
1001(a) of Pub. L. 101-501, set out as a note under section 8621 of
this title.
Amendment by section 504(a)-(d) of Pub. L. 99-425 not applicable
with respect to any fiscal year beginning in or before the 60-day period
ending on Oct. 1, 1986, and amendment by section 504(e) effective Oct.
1, 1986, see section 1001 of Pub. L. 99-425, set out as a note under
section 8621 of this title.
Amendment by Pub. L. 98-558 effective on first day of first fiscal
year beginning after Oct. 30, 1984, see section 609(b) of Pub. L.
98-558, set out as a note under section 8621 of this title.
/1/ See References in Text note below.
/2/ So in original. Probably should be followed by a semicolon.
42 USC -- 8625. Nondiscrimination provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Prohibitions
No person shall on the ground of race, color, national origin, or sex
be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under, any program or activity funded in
whole or in part with funds made available under this subchapter. Any
prohibition against discrimination on the basis of age under the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.) or with respect to
an otherwise qualified handicapped individual as provided in section 794
of title 29 also shall apply to any such program or activity.
(b) Procedures applicable to secure compliance
Whenever the Secretary determines that a State that has received a
payment under this subchapter has failed to comply with subsection (a)
of this section or an applicable regulation, he shall notify the chief
executive officer of the State and shall request him to secure
compliance. If within a reasonable period of time, not to exceed 60
days, the chief executive officer fails or refuses to secure compliance,
the Secretary is authorized to (1) refer the matter to the Attorney
General with a recommendation that an appropriate civil action be
instituted; (2) exercise the powers and functions provided by title VI
of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. 6101 et seq.), or section 794 of
title 29, as may be applicable; or (3) take such other action as may be
provided by law.
(c) Maintenance of civil actions
When a matter is referred to the Attorney General pursuant to
subsection (b) of this section, or whenever he has reason to believe
that the State is engaged in a pattern or practice in violation of the
provisions of this section, the Attorney General may bring a civil
action in any appropriate United States district court for such relief
as may be appropriate, including injunctive relief.
(Pub. L. 97-35, title XXVI, 2606, Aug. 13, 1981, 95 Stat. 900.)
The Age Discrimination Act of 1975, referred to in subsecs. (a) and
(b), is title III of Pub. L. 94-135, Nov. 28, 1975, 78 Stat. 728, as
amended, which is classified generally to chapter 76 ( 6101 et seq.) of
this title. For complete classification of this Act to the Code, see
Short Title note set out under section 6101 of this title and Tables.
The Civil Rights Act of 1964, referred to in subsec. (b), is Pub.
L. 88-352, July 2, 1964, 78 Stat. 241, as amended. Title VI of the
Civil Rights Act of 1964 is classified generally to subchapter V ( 2000d
et seq.) of chapter 21 of this title. For complete classification of
this Act to the Code, see Short Title note set out under section 2000a
of this title and Tables.
42 USC -- 8626. Payments to States; fiscal year requirements
respecting availability, etc.
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) From its allotment under section 8623 of this title, the
Secretary shall make payments to each State in accordance with section
6503(a) of title 31, for use under this subchapter.
(b)(1) If --
(A) the Secretary determines that, as of September 1 of any fiscal
year, an amount allotted to a State under section 8623 of this title for
any fiscal year will not be used by such State during such fiscal year;
(B) the Secretary --
(i) notifies the chief executive officer of such State; and
(ii) publishes a timely notice in the Federal Register;
that, after the 30-day period beginning on the date of the notice to
such chief executive officer, such amount may be reallotted; and
(C) the State does not request, under paragraph (2), that such amount
be held available for such State for the following fiscal year;
then such amount shall be treated by the Secretary for purposes of
this subchapter as an amount appropriated for the following fiscal year
to be allotted under section 8623 of this title for such following
fiscal year.
(2)(A) Any State may request that an amount allotted to such State
for a fiscal year be held available for such State for the following
fiscal year. Such request shall include a statement of the reasons that
the amount allotted to such State for a fiscal year will not be used by
such State during such fiscal year and a description of the types of
assistance to be provided with the amount held available for the
following fiscal year. Any amount so held available for the following
fiscal year shall not be taken into account in computing the allotment
of or the amount payable to such State for such fiscal year under this
subchapter.
(B) No amount may be held available under this paragraph for a State
from a prior fiscal year to the extent such amount exceeds 10 percent of
the amount payable to such State for such prior fiscal year and not
transferred pursuant to section 8623(f) of this title. For purposes of
the preceding sentence, the amount payable to a State but not
transferred by the State for a fiscal year shall be determined without
regard to any amount held available under this paragraph for such State
for such fiscal year from the prior fiscal year.
(C) The Secretary shall reallot amounts made available under this
paragraph for the fiscal year following the fiscal year of the original
allotment in accordance with paragraph (1) of this subsection.
(3) During the 30-day period described in paragraph (1)(B), comments
may be submitted to the Secretary. After considering such comments, the
Secretary shall notify the chief executive officer of the State of any
decision to reallot funds, and shall publish such decision in the
Federal Register.
(Pub. L. 97-35, title XXVI, 2607, Aug. 13, 1981, 95 Stat. 900; Pub.
L. 98-558, title VI, 606, Oct. 30, 1984, 98 Stat. 2892; Pub. L.
101-501, title VII, 706, Nov. 3, 1990, 104 Stat. 1260.)
In subsec. (a), ''section 6503(a) of title 31'' substituted for
''section 203 of the Intergovernmental Cooperation Act of 1968 (42
U.S.C. 4213)'' on authority of Pub. L. 97-258, 4(b), Sept. 13, 1982,
96 Stat. 1067, the first section of which enacted Title 31, Money and
Finance.
1990 -- Subsec. (b)(2)(B). Pub. L. 101-501 substituted ''10
percent'' for ''15 percent''.
1984 -- Subsec. (b)(2)(A). Pub. L. 98-558, 606(a), inserted ''Such
request shall include a statement of the reasons that the amount
allotted to such State for a fiscal year will not be used by such State
during such fiscal year and a description of the types of assistance to
be provided with the amount held available for the following fiscal
year.'' and ''or the amount payable to'' after ''computing the allotment
of''.
Subsec. (b)(2)(B). Pub. L. 98-558, 606(b), substituted ''15
percent'' for ''25 percent'', ''payable to such State for such prior
fiscal year and not transferred pursuant to section 8623(f) of this
title'' for ''allotted to such State for such prior fiscal year'', and
''payable to a State but not transferred by the State'' for ''allotted
to a State'' in second sentence.
Subsec. (b)(2)(C). Pub. L. 98-558, 606(c), added subpar. (C).
Amendment by Pub. L. 101-501 effective Oct. 1, 1990, see section
1001(a) of Pub. L. 101-501, set out as a note under section 8621 of
this title.
Amendment by Pub. L. 98-558 applicable to amounts held available for
fiscal years beginning after Sept. 30, 1985, see section 609(c) of Pub.
L. 98-558, set out as a note under section 8621 of this title.
42 USC -- 8626a. Incentive program for leveraging non-Federal
resources
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Allotment of funds
Beginning in fiscal year 1992, the Secretary may allocate amounts
appropriated under section 8621(d) of this title to provide
supplementary funds to States that have acquired non-Federal leveraged
resources for the program established under this subchapter.
(b) ''Leveraged resources'' defined
For purposes of this section, the term ''leveraged resources'' means
the benefits made available to the low-income home energy assistance
program of the State, or to federally qualified low-income households,
that --
(1) represent a net addition to the total energy resources available
to State and federally qualified households in excess of the amount of
such resources that could be acquired by such households through the
purchase of energy at commonly available household rates; and
(2)(A) result from the acquisition or development by the State
program of quantifiable benefits that are obtained from energy vendors
through negotiation, regulation or competitive bid; or
(B) are appropriated or mandated by the State for distribution --
(i) through the State program; or
(ii) under the plan referred to in section 8624(c)(1)(A) of this
title to federally qualified low-income households and such benefits are
determined by the Secretary to be integrated with the State program.
(c) Formula for distribution of amounts
(1) Distribution of amounts made available under this section shall
be based on a formula developed by the Secretary that is designed to
take into account the success in leveraging existing appropriations in
the preceding fiscal year as measured under subsection (d) of this
section. Such formula shall take into account the size of the
allocation of the State under this subchapter and the ratio of leveraged
resources to such allocation.
(2) A State may expend funds allocated under this subchapter as are
necessary, not to exceed .0008 percent of such allocation or $35,000
each fiscal year, whichever is greater, to identify, develop, and
demonstrate leveraging programs. Funds allocated under this section
shall only be used for increasing or maintaining benefits to households.
(d) Dollar value of leveraged resources
Each State shall quantify the dollar value of leveraged resources
received or acquired by such State under this section by using the best
available data to calculate such leveraged resources less the sum of any
costs incurred by the State to leverage such resources and any cost
imposed on the federally eligible low-income households in such State.
(e) Report to Secretary
Not later than July 31, of each year, each State shall prepare and
submit, to the Secretary, a report that quantifies the leveraged
resources of such State in order to qualify for assistance under this
section for the following fiscal year.
(f) Determination of State share; regulations; documentation
The Secretary shall determine the share of each State of the amounts
made available under this section based on the formula described in
subsection (c) of this section and the State reports. The Secretary
shall promulgate regulations for the calculation of the leveraged
resources of the State and for the submission of supporting
documentation. The Secretary may request any documentation that the
Secretary determines necessary for the verification of the application
of the State for assistance under this section.
(Pub. L. 97-35, title XXVI, 2607A, as added Pub. L. 101-501, title
VII, 707(a), Nov. 3, 1990, 104 Stat. 1260.)
Section effective Oct. 1, 1990, see section 1001(a) of Pub. L.
101-501, set out as an Effective Date of 1990 Amendment note under
section 8621 of this title.
42 USC -- 8627. Withholding of funds
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Improper utilization of funds; response to complaints respecting
improprieties
(1) The Secretary shall, after adequate notice and an opportunity for
a hearing conducted within the affected State, withhold funds from any
State which does not utilize its allotment substantially in accordance
with the provisions of this subchapter and the assurances such State
provided under section 8624 of this title.
(2) The Secretary shall respond in writing in no more than 60 days to
matters raised in complaints of a substantial or serious nature that a
State has failed to use funds in accordance with the provisions of this
subchapter or the assurances provided by the State under section 8624 of
this title. For purposes of this paragraph, a violation of any one of
the assurances contained in section 8624(b) of this title that
constitutes a disregard of such assurance shall be considered a serious
complaint.
(b) Investigations; conduct, etc.
(1) The Secretary shall conduct in several States in each fiscal year
investigations of the use of funds received by the States under this
subchapter in order to evaluate compliance with the provisions of this
subchapter.
(2) Whenever the Secretary determines that there is a pattern of
complaints from any State in any fiscal year, the Secretary shall
conduct an investigation of the use of funds received under this
subchapter by such State in order to ensure compliance with the
provisions of this subchapter.
(3) The Comptroller General of the United States may conduct an
investigation of the use of funds received under this subchapter by a
State in order to ensure compliance with the provisions of this
subchapter.
(c) Inspection of books, documents, etc.
Pursuant to an investigation conducted under subsection (b) of this
section, a State shall make appropriate books, documents, papers, and
records available to the Secretary or the Comptroller General of the
United States, or any of their duly authorized representatives, for
examination, copying, or mechanical reproduction on or off the premises
of the appropriate entity upon a reasonable request therefor.
(d) Request for information not readily available
In conducting any investigation under subsection (b) of this section,
the Secretary may not request any information not readily available to
such State or require that any information be compiled, collected, or
transmitted in any new form not already available.
(Pub. L. 97-35, title XXVI, 2608, Aug. 13, 1981, 95 Stat. 901; Pub.
L. 98-558, title VI, 608, Oct. 30, 1984, 98 Stat. 2893; Pub. L.
101-501, title VII, 708, Nov. 3, 1990, 104 Stat. 1261.)
1990 -- Subsec. (a)(2). Pub. L. 101-501 substituted ''in writing in
no more than 60 days to matters raised in'' for ''in an expeditious and
speedy manner to''.
1984 -- Subsec. (b)(2). Pub. L. 98-558 substituted ''the Secretary''
for ''he'' before ''shall conduct''.
Amendment by Pub. L. 101-501 effective Oct. 1, 1990, see section
1001(a) of Pub. L. 101-501, set out as a note under section 8621 of
this title.
Amendment by Pub. L. 98-558 effective Oct. 30, 1984, see section
609(a) of Pub. L. 98-558 set out as a note under section 8621 of this
title.
42 USC -- 8628. Limitation on use of grants for construction
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Grants made under this subchapter may not be used by the State, or by
any other person with which the State makes arrangements to carry out
the purposes of this subchapter, for the purchase or improvement of
land, or the purchase, construction, or permanent improvement (other
than low-cost residential weatherization or other energy-related home
repairs) of any building or other facility.
(Pub. L. 97-35, title XXVI, 2609, Aug. 13, 1981, 95 Stat. 902.)
42 USC -- 8628a. Technical assistance and training
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Of the amounts appropriated under section 8621(b) of this title
for any fiscal year, not more than $500,000 of such amounts may be
reserved by the Secretary --
(1) to make grants to State and public agencies and private nonprofit
organizations; or
(2) to enter into contracts or jointly financed cooperative
arrangements with States and public agencies and private nonprofit
organizations;
to provide for training and technical assistance related to the
purposes of this subchapter, including collection and dissemination of
information about programs and projects assisted under this subchapter,
and ongoing matters of regional or national significance that the
Secretary finds would assist in the more effective provision of services
under this subchapter.
(b) No provision of this section shall be construed to prevent the
Secretary from making a grant pursuant to subsection (a) of this section
to one or more private nonprofit organizations that apply jointly with a
business concern to receive such grant.
(Pub. L. 97-35, title XXVI, 2609A, as added Pub. L. 99-425, title V,
505(a), Sept. 30, 1986, 100 Stat. 975.)
This subchapter, the first and second time appearing in subsec. (a),
was in the original ''this subtitle'' which was translated as ''this
title'', meaning title XXVI of Pub. L. 97-35, as the probable intent of
Congress.
Section effective Oct. 1, 1986, see section 1001 of Pub. L.
99-425, set out as an Effective Date of 1986 Amendment note under
section 8621 of this title.
42 USC -- 8629. Studies and reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Secretary, after consultation with the Secretary of Energy,
shall provide for the collection of data, including --
(1) information concerning home energy consumption;
(2) the amount, cost and type of fuels used for households eligible
for assistance under this subchapter;
(3) the type of fuel used by various income groups;
(4) the number and income levels of households assisted by this
subchapter;
(5) the number of households which received such assistance and
include one or more individuals who are 60 years or older or
handicapped; and
(6) any other information which the Secretary determines to be
reasonably necessary to carry out the provisions of this subchapter.
Nothing in this subsection may be construed to require the Secretary
to collect data which has been collected and made available to the
Secretary by any other agency of the Federal Government.
(b) The Secretary shall, no later than June 30 of each fiscal year,
submit a report to the Congress containing a detailed compilation of the
data under subsection (a) of this section with respect to the prior
fiscal year, and a report that describes for the prior fiscal year --
(1) the manner in which States carry out the requirements of clauses
(2), (5), (8), and (15) of section 8624(b) of this title; and
(2) the impact of each State's program on recipient and eligible
households.
(Pub. L. 97-35, title XXVI, 2610, Aug. 13, 1981, 95 Stat. 902; Pub.
L. 98-558, title VI, 607, Oct. 30, 1984, 98 Stat. 2893; Pub. L.
99-425, title V, 506, Sept. 30, 1986, 100 Stat. 976.)
1986 -- Subsec. (b). Pub. L. 99-425 inserted provisions relating to
report describing for prior fiscal year the manner of carrying out
requirements of clauses of section 8624 of this title and impact of
State programs on recipient and eligible households.
1984 -- Subsec. (a). Pub. L. 98-558, 607(c), inserted at end
''Nothing in this subsection may be construed to require the Secretary
to collect data which has been collected and made available to the
Secretary by any other agency of the Federal Government.''
Subsec. (a)(2). Pub. L. 98-558, 607(a), inserted ''amount,'' before
''cost'' and ''for households eligible for assistance under this
subchapter''.
Subsec. (a)(5), (6). Pub. L. 98-558, 607(b), added par. (5) and
redesignated former par. (5) as (6).
Subsec. (b). Pub. L. 98-558, 607(d), in amending subsec. (b)
generally, inserted ''no later than June 30 of each fiscal year,'' and
substituted ''a detailed compilation of the data under subsection (a) of
this section with respect to the prior fiscal year'' for ''a summary of
data collected under subsection (a) of this section''.
Amendment by Pub. L. 99-425 effective Oct. 1, 1986, see section
1001 of Pub. L. 99-425, set out as a note under section 8621 of this
title.
Amendment by Pub. L. 98-558 applicable to data collected and
compiled after Oct. 30, 1984, and this section as in effect before Oct.
30, 1984, applicable with respect to the report submitted under this
section for fiscal year 1984, see section 609(d) of Pub. L. 98-558,
set out as a note under section 8621 of this title.
42 USC -- CHAPTER 95 -- UNITED STATES SYNTHETIC FUELS CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8701. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 96-294, title I, 100, June 30, 1980, 94 Stat.
616, which related to Congressional findings, declarations, and
purposes, was omitted from the Code in view of termination of United
States Synthetic Fuels Corporation. See note set out under section 8791
of this title.
42 USC -- SUBCHAPTER I -- INTRODUCTORY PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8702. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 96-294, title I, 112, June 30, 1980, 94 Stat.
633, which defined terms for this chapter, was omitted from the Code in
view of termination of United States Synthetic Fuels Corporation. See
note set out under section 8791 of this title.
42 USC -- SUBCHAPTER II -- ESTABLISHMENT OF CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8711 to 8719. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8711 to 8719 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8711, Pub. L. 96-294, title I, 115, June 30, 1980, 94 Stat.
636, created the Corporation, provided for its offices and residence
status, and referred to its general powers.
Section 8712, Pub. L. 96-294, title I, 116, June 30, 1980, 94 Stat.
636, provided for board of directors of Corporation.
Section 8713, Pub. L. 96-294, title I, 117, June 30, 1980, 94 Stat.
638; Pub. L. 98-473, title I, 101(c) (title II, 201), Oct. 12,
1984, 98 Stat. 1837, 1860, related to officers and employees of
Corporation.
Section 8714, Pub. L. 96-294, title I, 118, June 30, 1980, 94 Stat.
638, related to conflicts of interest and financial disclosure.
Section 8715, Pub. L. 96-294, title I, 119, June 30, 1980, 94 Stat.
639, related to delegation of authority and transfer of functions.
Section 8716, Pub. L. 96-294, title I, 120, June 30, 1980, 94 Stat.
640, authorized administrative expenses.
Section 8717, Pub. L. 96-294, title I, 121, June 30, 1980, 94 Stat.
641, related to public access to information.
Section 8718, Pub. L. 96-294, title I, 122, June 30, 1980, 94 Stat.
641, related to Inspector General of Corporation.
Section 8719, Pub. L. 96-294, title I, 123, June 30, 1980, 94 Stat.
644, established an Advisory Committee to the Board of Directors. For
continuation of Advisory Committee, see section 7404(c) of Pub. L.
99-272, set out as a note under section 8791 of this title.
42 USC -- SUBCHAPTER III -- PRODUCTION GOAL OF THE CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8721 to 8725. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8721 to 8725 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8721, Pub. L. 96-294, title I, 125, June 30, 1980, 94 Stat.
644, established a national synthetic fuel production goal.
Section 8722, Pub. L. 96-294, title I, 126, June 30, 1980, 94 Stat.
644, related to production strategy.
Section 8723, Pub. L. 96-294, title I, 127, June 30, 1980, 94 Stat.
649, related to solicitation of proposals.
Section 8724, Pub. L. 96-294, title I, 128, June 30, 1980, 94 Stat.
650, related to Congressional disapproval procedure.
Section 8725, Pub. L. 96-294, title I, 129, June 30, 1980, 94 Stat.
652, related to Congressional approval procedure.
42 USC -- SUBCHAPTER IV -- FINANCIAL ASSISTANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8731 to 8740. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8731 to 8740 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8731, Pub. L. 96-294, title I, 131, June 30, 1980, 94 Stat.
654, authorized financial assistance.
Section 8732, Pub. L. 96-294, title I, 132, June 30, 1980, 94 Stat.
658, related to loans made by Corporation.
Section 8733, Pub. L. 96-294, title I, 133, June 30, 1980, 94 Stat.
660, related to loan guarantees made by Corporation.
Section 8734, Pub. L. 96-294, title I, 134, June 30, 1980, 94 Stat.
661, related to price guarantees by Corporation.
Section 8735, Pub. L. 96-294, title I, 135, June 30, 1980, 94 Stat.
661, related to purchase agreements made by Corporation.
Section 8736, Pub. L. 96-294, title I, 136, June 30, 1980, 94 Stat.
662, related to joint ventures by Corporation.
Section 8737, Pub. L. 96-294, title I, 137, June 30, 1980, 94 Stat.
663, related to control of assets.
Section 8738, Pub. L. 96-294, title I, 138, June 30, 1980, 94 Stat.
665, related to unlawful contracts.
Section 8739, Pub. L. 96-294, title I, 139, June 30, 1980, 94 Stat.
665, related to fees and application of receipts.
Section 8740, Pub. L. 96-294, title I, 140, June 30, 1980, 94 Stat.
665, related to disposition of securities.
42 USC -- SUBCHAPTER V -- CORPORATION CONSTRUCTION PROJECTS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8741 to 8745. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8741 to 8745 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8741, Pub. L. 96-294, title I, 141, June 30, 1980, 94 Stat.
665, related to construction and operation of synthetic fuel projects.
Section 8742, Pub. L. 96-294, title I, 142, June 30, 1980, 94 Stat.
666, limited construction projects.
Section 8743, Pub. L. 96-294, title I, 143, June 30, 1980, 94 Stat.
666, subjected construction projects and joint ventures to certain
Federal laws and provided for monitoring of environmental and health
related emissions.
Section 8744, Pub. L. 96-294, title I, 144, June 30, 1980, 94 Stat.
667, related to construction project reports.
Section 8745, Pub. L. 96-294, title I, 145, June 30, 1980, 94 Stat.
667, related to financial record requirements for contract recipients.
42 USC -- SUBCHAPTER VI -- CAPITALIZATION AND FINANCE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8751 to 8755. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8751 to 8755 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8751, Pub. L. 96-294, title I, 151, June 30, 1980, 94 Stat.
667, related to issue by Corporation of obligations purchasable by
United States only.
Section 8752, Pub. L. 96-294, title I, 152, June 30, 1980, 94 Stat.
668, related to limitations on total amount of obligational authority.
Section 8753, Pub. L. 96-294, title I, 153, June 30, 1980, 94 Stat.
669, related to budgetary treatment.
Section 8754, Pub. L. 96-294, title I, 154, June 30, 1980, 94 Stat.
669, related to receipts of Corporation.
Section 8755, Pub. L. 96-294, title I, 155, June 30, 1980, 94 Stat.
669, related to tax status of Corporation.
42 USC -- SUBCHAPTER VII -- UNLAWFUL ACTS, PENALTIES, AND SUITS AGAINST
THE CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8761 to 8768. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8761 to 8768 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8761, Pub. L. 96-294, title I, 161, June 30, 1980, 94 Stat.
670, related to penalty for false statements.
Section 8762, Pub. L. 96-294, title I, 162, June 30, 1980, 94 Stat.
670, related to penalty for forgery.
Section 8763, Pub. L. 96-294, title I, 163, June 30, 1980, 94 Stat.
671, related to penalties and injunctive relief for misappropriation of
funds and for unauthorized activities.
Section 8764, Pub. L. 96-294, title I, 164, June 30, 1980, 94 Stat.
671, related to penalty for conspiracy.
Section 8765, Pub. L. 96-294, title I, 165, June 30, 1980, 94 Stat.
672, related to deceptive use of corporate name.
Section 8766, Pub. L. 96-294, title I, 166, June 30, 1980, 94 Stat.
672, authorized an action for damages by Corporation in addition to
penalties prescribed for violations.
Section 8767, Pub. L. 96-294, title I, 167, June 30, 1980, 94 Stat.
672, related to actions by Attorney General.
Section 8768, Pub. L. 96-294, title I, 168, June 30, 1980, 94 Stat.
672; Pub. L. 98-473, title I, 101(c) (title II, 201), Oct. 12,
1984, 98 Stat. 1837, 1860, related to civil actions against
Corporation.
42 USC -- SUBCHAPTER VIII -- GENERAL PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8771 to 8780. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8771 to 8780 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8771, Pub. L. 96-294, title I, 171, June 30, 1980, 94 Stat.
673, related to general powers of Corporation.
Section 8772, Pub. L. 96-294, title I, 172, June 30, 1980, 94 Stat.
674, related to coordination by Corporation with Federal entities.
Section 8773, Pub. L. 96-294, title I, 173, June 30, 1980, 94 Stat.
675, related to patents.
Section 8774, Pub. L. 96-294, title I, 174, June 30, 1980, 94 Stat.
676, related to utilization of small and disadvantaged businesses.
Section 8775, Pub. L. 96-294, title I, 175, June 30, 1980, 94 Stat.
676; Pub. L. 98-426, 27(d)(2), Sept. 28, 1984, 98 Stat. 1654,
provided relationship to other Federal laws.
Section 8776, Pub. L. 96-294, title I, 176, June 30, 1980, 94 Stat.
678, provided for severability of provisions.
Section 8777, Pub. L. 96-294, title I, 177, June 30, 1980, 94 Stat.
678, specified Corporation's fiscal year and provided for audits and
reports.
Section 8778, Pub. L. 96-294, title I, 178, June 30, 1980, 94 Stat.
679, related to water rights.
Section 8779, Pub. L. 96-294, title I, 179, June 30, 1980, 94 Stat.
679, related to Western Hemisphere projects.
Section 8780, Pub. L. 96-294, title I, 180, June 30, 1980, 94 Stat.
680, related to a lender financial protection and completion guarantee
study.
42 USC -- SUBCHAPTER IX -- DISPOSAL OF ASSETS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8781, 8782. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8781 and 8782 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note set
out under section 8791 of this title.
Section 8781, Pub. L. 96-294, title I, 181, June 30, 1980, 94 Stat.
680, related to disposal of corporate tangible assets.
Section 8782, Pub. L. 96-294, title I, 182, June 30, 1980, 94 Stat.
681, related to disposal of assets other than as provided for in
section 8781.
42 USC -- SUBCHAPTER X -- TERMINATION OF CORPORATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8791 to 8793. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sections 8791 to 8793 were omitted from the Code in view of
termination of United States Synthetic Fuels Corporation. See note
below.
Section 8791, Pub. L. 96-294, title I, 191, June 30, 1980, 94 Stat.
681, related to dates for termination of awards or commitments by
Corporation.
Section 8792, Pub. L. 96-294, title I, 192, June 30, 1980, 94 Stat.
681, related to termination of Corporation's affairs.
Section 8793, Pub. L. 96-294, title I, 193, June 30, 1980, 94 Stat.
681, transferred Corporation's powers to Department of the Treasury.
Pub. L. 99-272, title VII, subtitle E, Apr. 7, 1986, 100 Stat. 143,
as amended by Pub. L. 101-508, title VI, 6401, Nov. 5, 1990, 104
Stat. 1388-319, provided that:
''SEC. 7401. SHORT TITLE.
''This subtitle may be cited as the 'Synthetic Fuels Corporation Act
of 1985'.
''SEC. 7402. CESSATION OF FINANCIAL ASSISTANCE AUTHORITY.
''Effective on the date of enactment of this Act (Apr. 7, 1986), the
United States Synthetic Fuels Corporation (hereafter in this subtitle
referred to as the 'Corporation') may not make any legally binding
awards or commitments for financial assistance (including any changes in
an existing award or commitment) pursuant to the Energy Security Act
(Pub. L. 96-294; see Short Title note set out under section 8801 of
this title) for synthetic fuel project proposals, except that nothing in
this Act (see Tables for classification) shall impair or alter the
powers, duties, rights, obligations, privileges, or liabilities of the
Corporation, its Board or Chairman, or project sponsors in the
performance and completion of the terms and undertakings of a legally
binding award or commitment entered into prior to the date of enactment
of this Act.
''SEC. 7403. TERMINATION OF THE CORPORATION.
''(a) Within 60 days of the date of enactment of this Act (Apr. 7,
1986), the Directors of the Corporation shall terminate their duties
under the Energy Security Act (Pub. L. 96-294; see Short Title note set
out under section 8801 of this title) and be discharged.
''(b) Within 120 days of the date of enactment of this Act (Apr. 7,
1986), the Corporation shall terminate, except as otherwise provided in
this subtitle, in accordance with subtitle J of part B of title I of the
Energy Security Act (42 U.S.C. 8791 to 8793).
''SEC. 7404. DUTIES OF SECRETARY OF THE TREASURY.
''(a) Within 60 days of the date of enactment of this Act (Apr. 7,
1986) (or earlier, in the event of absence of a Chairman of the Board of
Directors of the Corporation), the Secretary of the Treasury shall
assume the duties of the Chairman of the Board of Directors of the
Corporation. The Secretary of the Treasury shall have the authority to
negotiate and execute agreements modifying an existing contract relating
to the production of synthetic crude oil from oil shale, entered into
under the Defense Production Act Amendments of 1980 (Pub. L. 96-294,
title I, part A, see Short Title of 1980 Amendment note set out under
section 2061 of Title 50, Appendix, War and National Defense) and
subsequently transferred to the Secretary of the Treasury for
administration, provided the terms and conditions of any modification(s)
are revenue neutral or result in a fiscal savings to the United States
Government, and in no event would increase the financial exposure of the
United States Government under the contract: Provided, however, That
the Secretary of the Treasury shall have no authority to increase the
total amount of funds originally authorized for the existing contract:
And provided further, That the Secretary shall have no authority to
negotiate and execute any agreement modifying the existing contract if
such modification(s) would increase or accelerate the financial support
per unit for the synthetic fuel to be produced under the contract.
''(b) Notwithstanding any other provision of law, the duties and
responsibilities of the Secretary of the Treasury under subtitle J of
part B of title I of the Energy Security Act (42 U.S.C. 8791 to 8793) or
this Act (see Tables for classification) may not be transferred to any
other Federal department or agency.
''(c) Notwithstanding such termination of the Corporation, the
Advisory Committee established under section 123 of the Energy Security
Act (42 U.S.C 8719) shall remain in effect to advise the Secretary of
the Treasury regarding the administration of any contract or obligation
of the Corporation pursuant to subtitle D of part B of title I of such
Act (42 U.S.C. 8731 to 8740).
''(d) To the extent that the Secretary of the Treasury may be
required to take an action under section 131(q) of the Energy Security
Act (42 U.S.C. 8731(q)) in connection with an award or commitment of
financial assistance under such Act (Pub. L. 96-294; see Short Title
note set out under section 8801 of this title), the Secretary shall
complete such action within 30 days of the date of enactment of this Act
(Apr. 7, 1986).
''SEC. 7405. SALARIES AND COMPENSATION RIGHTS.
''(a) The Director of the Office of Personnel Management shall,
before February 1, 1986, determine the amount of compensation or
benefits which each Director, officer, or employee of the Corporation
shall be legally entitled to under any contract as of the date of
enactment of this Act (Apr. 7, 1986).
''(b) Effective on the date of enactment of this Act (Apr. 7, 1986),
no change in any Director, officer, or employee compensation or benefits
shall be allowed or permitted, unless the Director of the Office of
Personnel Management agrees that such change is reasonable.
''(c) Effective on the date of enactment of this Act (Apr. 7, 1986)
--
''(1) no officer or employee of the Corporation shall receive a
salary in excess of the rate of basic pay payable for level IV of the
Executive Schedule under title 5 of the United States Code; and
''(2) the Corporation shall not waive any requirements in its By-Laws
which are necessary for a Director, officer, or employee to qualify for
pension or termination benefits under the By-Laws and written personnel
policies and procedures in effect on the date of enactment of this Act
(Apr. 7, 1986).
''SEC. 7406. REPORT TO THE CONGRESS.
''The Corporation shall, within 60 days of the date of enactment of
this Act (Apr. 7, 1986), transmit to the Committee on Energy and Natural
Resources of the Senate and to the Committee on Energy and Commerce and
Committee on Banking, Housing and Urban Affairs of the House of
Representatives a report --
''(1) containing a review of implementation of its Phase I Business
Plan dated February 19, 1985; and
''(2) fulfilling the requirements of section 126(b)(3) of the Energy
Security Act (42 U.S.C. 8722(b)(3)).''
Similar provisions were contained in Pub. L. 99-190, 101(d) (title
II, 201), Dec. 19, 1985, 99 Stat. 1224, 1249.
42 USC -- SUBCHAPTER XI -- DEPARTMENT OF THE TREASURY
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8795. Omitted
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Section, Pub. L. 96-294, title I, 195, June 30, 1980, 94 Stat.
682, which authorized appropriations to purchase corporate obligations
and authorized public debt status for purchases and redemptions of
corporate obligations, was omitted from the Code in view of termination
of United States Synthetic Fuels Corporation. See note set out under
section 8791 of this title.
42 USC -- CHAPTER 96 -- BIOMASS ENERGY AND ALCOHOL FUELS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8801. Congressional findings.
8802. Definitions.
8803. Funding.
(a) Authorization of appropriations.
(b) Availability of funds until expended.
(c) Determinations respecting amount of appropriations remaining
available.
(d) Financial assistance provided only to extent advanced in
appropriation Acts.
8804. Coordination with other authorities and programs.
8811. Biomass energy development plans.
(a) Plan respecting maximized production and use by December 31,
1982; preparation, transmission, etc.
(b) Comprehensive plan respecting maximized production and use from
January 1, 1983, to December 31, 1990, preparation, transmission, etc.
(c) Required guidelines.
8812. Program responsibility and administration and effect on other
programs.
(a) Duties and functions of Secretary of Agriculture and Secretary of
Energy over projects.
(b) Procedural requirements applicable.
(c) Notice to and reviewing functions of other Secretary concerning
application for financial assistance.
(d) Notification of applicant upon disapproval of application for
financial assistance.
(e) Implementation of functions assigned to Secretary of Agriculture
by administrative entities within Department of Agriculture; issuance
of regulations; coordination of functions by designated entities.
(f) Implementation of functions assigned to Secretary of Energy by
Office of Alcohol Fuels.
(g) Energy equivalency determinations respecting biomass energy and
ethanol.
8813. Insured loans.
(a) Authority of Secretary of Agriculture; maximum amount per
project.
(b) Estimated project construction costs as determinative of initial
and revised amount of loan; interest rate.
(c) Funding requirements; ''insured loan'' defined.
(d) Preconditions.
8814. Loan guarantees.
(a) Authority of Secretary concerned.
(b) Estimated project construction costs as determinative of initial
and revised amount of guarantee.
(c) Debt obligation; ineligibility for purchase, etc., by Federal
Financing Bank or any Federal agency.
(d) Terms and conditions.
(e) Termination, cancellation, or revocation, and conclusive nature
of guarantee.
(f) Payment to lender.
(g) Preconditions.
8815. Price guarantees.
(a) Authority of Secretary concerned; minimum sales price.
(b) Cost-plus arrangements as basis.
(c) Maximum dollar amount of liability of United States.
(d) Renegotiation of sales price and maximum liability.
8816. Purchase agreements.
(a) Authority of Secretary concerned; consultative requirements.
(b) Maximum sales price.
(c) Assurances required.
(d) Arrangements for delivery pursuant to agreement; charge to
Federal agency receiving delivery.
(e) Consultative requirements.
(f) Terms and conditions.
(g) Maximum dollar amount of liability of United States.
(h) Renegotiation of sales price and maximum liability.
8817. General requirements regarding financial assistance.
(a) Priorities, terms, availability, etc.
(b) Terms, conditions, maturity, etc., for insured loans, and loan
guarantees.
(c) Application requirements.
(d) Reports and recordkeeping.
(e) Contracts and instruments of Secretary concerned backed by full
faith and credit of United States.
(f) Contestability of contracts.
(g) Fees for loan guarantees, etc.
(h) Deposit of amounts received by Secretary concerned.
8818. Reports.
(a) Repealed.
(b) Comprehensive list of loans, grants, etc.
(c) Annual reports; report evaluating overall impact and plan for
termination of Office of Alcohol Fuels.
8819. Review; reorganization.
8820. Office of Alcohol Fuels.
(a) Establishment in Department of Energy; appointment and
compensation of Director.
(b) Responsibilities of Director.
(c) Annual authorization and appropriation requests for support of
Office.
(d) Consultations respecting coordination of programs.
8821. Termination of authorities; modification of terms and
conditions of conditional commitments for loan guarantees.
8831. Municipal waste energy development plan.
(a) Preparation by Secretary of Energy; consultative requirements.
(b) Transmittal to President and Congress.
(c) Required statements.
(d) Report to President and Congress; contents.
8832. Construction loans.
(a) Authority of Secretary of Energy.
(b) Estimated project construction costs as determinative of initial
and revised amount of loan; interest rate.
(c) Preconditions.
8833. Guaranteed construction loans.
(a) Authority of Secretary of Energy.
(b) Estimated project construction costs as determinative of revised
amount of guarantee.
(c) Terms and conditions.
(d) Termination, cancellation, or revocation, and conclusive nature
of guarantee.
(e) Payment to lender.
(f) Preconditions.
(g) Payment of interest; tax consequences.
(h) Fees.
8834. Price support loans and price guarantees.
(a) Authority of Secretary of Energy with respect to loans for
existing projects; disbursements, etc.
(b) Authority of Secretary of Energy with respect to loans for new
projects; disbursements, etc.
(c) Authority of Secretary of Energy with respect to guarantees for
new projects; pricing determinations, etc.
(d) Definitions; sale price of retained fuel; rules relating to
fuel displacement.
8835. General requirements regarding financial assistance.
(a) Priorities, terms, availability, etc.
(b) Terms, conditions, maturity, etc.
(c) Application requirements.
(d) Reports and recordkeeping.
(e) Deposit of amounts received.
(f) Contracts and instruments backed by full faith and credit of
United States.
(g) Contestability of contracts.
(h) Eligibility of debt obligations for purchase, sale, or issuance
to Federal Financing Bank or any Federal agency.
8836. Financial assistance program administration.
8837. Commercialization demonstration program pursuant to Federal
nonnuclear energy research and development.
(a) Establishment and conduct pursuant to other Federal statutory
authorities; required undertakings subsequent to consultations.
(b) Financial assistance.
(c) Priority for funding.
(d) Obligation and expenditure of funds.
(e) Deposit of moneys received.
8838. Jurisdiction of Department of Energy and Environmental
Protection Agency.
8839. Office of Energy from Municipal Waste.
(a) Establishment in Department of Energy; appointment of Director.
(b) Functions.
(c) Consultations respecting implementation of functions.
(d) Transfer of related functions and personnel from Department of
Energy.
8840. Termination of authorities.
8851. Model demonstration biomass energy facilities; establishment,
public inspection, etc.; authorization of appropriations.
8852. Coordination of research and extension activities;
consultative requirements.
8853. Lending for energy production and conservation projects by
production credit associations, Federal land banks, and banks for
cooperatives.
8854. Utilization of National Forest System in wood energy
development projects.
8855. Forest Service leases and permits.
8871. Use of gasohol in Federal motor vehicles.
(a) Exercise of President's authority pursuant to executive order
respecting use.
(b) Exceptions.
(c) Gasohol requirements.
42 USC -- 8801. Congressional findings
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Congress finds that --
(1) the dependence of the United States on imported petroleum and
natural gas must be reduced by all economically and environmentally
feasible means, including the use of biomass energy resources; and
(2) a national program for increased production and use of biomass
energy that does not impair the Nation's ability to produce food and
fiber on a sustainable basis for domestic and export use must be
formulated and implemented within a multiple-use framework.
(Pub. L. 96-294, title II, 202, June 30, 1980, 94 Stat. 683.)
Section 1 of Pub. L. 96-294 provided: ''That this Act (enacting
chapters 95 to 97, and sections 6347, 7361 to 7364, 7371 to 7375, 8235
to 8235i, 8281 to 8284, 8285 to 8285c, and 8286 to 8286b of this title,
sections 1435 and 3129 of Title 7, Agriculture, sections 3601 to 3620 of
Title 12, Banks and Banking, section 3391a of Title 15, Commerce and
Trade, sections 1146, 1147, 1501, 1511 to 1516, 1521, 1522, 1531, 1541,
and 1542 of Title 30, Mineral Lands and Mining, and sections 2075, 2076,
and 2095 to 2098 of the Appendix to Title 50, War and National Defense,
amending sections 6240, 6862 to 6872, 8211, 8213, 8214, 8216, 8217,
8221, 8255, 8271, and 8274 to 8276 of this title, sections 341, 342,
427, and 3154 of Title 7, section 7430 of Title 10, Armed Forces,
sections 1451, 1454, 1717, 1723g, and 1723h of Title 12, section 753 of
Title 15, sections 590h, 796, 824a-3, 824i, 824j, 1642, 2705, and 2708
of Title 16, Conservation, sections 1141 and 1143 of Title 30, and
sections 2062, 2091 to 2093, 2151, 2161, and 2166 of the Appendix to
Title 50, repealing section 1723f of Title 12, and enacting provisions
set out as notes under sections 6240, 7371, 8211, 8235, 8701, 8801, and
8901 of this title, section 3601 of Title 12, section 2701 of Title 16,
section 1501 of Title 30, and sections 2061 and 2062 of the Appendix to
Title 50) may be cited as the 'Energy Security Act'.''
Section 201 of title II of Pub. L. 96-294 provided that: ''This
title (enacting this chapter, sections 1435 and 3129 of Title 7,
Agriculture, and section 3391a of Title 15, Commerce and Trade, and
amending sections 341, 342, 427, and 3154 of Title 7, section 753 of
Title 15, and sections 590h and 1642 of Title 16, Conservation) may be
cited as the 'Biomass Energy and Alcohol Fuels Act of 1980'.''
42 USC -- 8802. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this chapter --
(1) The term ''alcohol'' means alcohol (including methanol and
ethanol) which is produced from biomass and which is suitable for use by
itself or in combination with other substances as a fuel or as a
substitute for petroleum or petrochemical feedstocks.
(2)(A) The term ''biomass'' means any organic matter which is
available on a renewable basis, including agricultural crops and
agricultural wastes and residues, wood and wood wastes and residues,
animal wastes, municipal wastes, and aquatic plants.
(B) For purposes of subchapter I of this chapter, such term does not
include municipal wastes; and for purposes of subchapter III of this
chapter, such term does not include aquatic plants and municipal wastes.
(3) The term ''biomass fuel'' means any gaseous, liquid, or solid
fuel produced by conversion of biomass.
(4) The term ''biomass energy'' means --
(A) biomass fuel; or
(B) energy or steam derived from the direct combustion of biomass for
the generation of electricity, mechanical power, or industrial process
heat.
(5) The term ''biomass energy project'' means any facility (or
portion of a facility) located in the United States which is primarily
for --
(A) the production of biomass fuel (and byproducts); or
(B) the combustion of biomass for the purpose of generating
industrial process heat, mechanical power, or electricity (including
cogeneration).
(6) The term ''Btu'' means British thermal unit.
(7) The term ''cogeneration'' means the combined generation by any
facility of --
(A) electrical or mechanical power, and
(B) steam or forms of useful energy (such as heat) which are used for
industrial, commercial, heating, or cooling purposes.
(8) The term ''cooperative'' means any agricultural association, as
that term is defined in section 1141j(a) of title 12.
(9)(A) The term ''construction'' means --
(i) the construction or acquisition of any biomass energy project;
(ii) the conversion of any facility to a biomass energy project; or
(iii) the expansion or improvement of any biomass energy project
which increases the capacity or efficiency of that facility to produce
biomass energy.
(B) Such term includes --
(i) the acquisition of equipment and machinery for use in or at the
site of a biomass energy project; and
(ii) the acquisition of land and improvements thereon for the
construction, expansion, or improvement of such a project, or the
conversion of a facility to such a project.
(C) Such term does not include the acquisition of any facility which
was operated as a biomass energy project before the acquisition.
(10) The term ''Federal agency'' means any Executive agency, as
defined in section 105 of title 5.
(11)(A) The term ''financial assistance'' means any of the following
forms of financial assistance provided under this chapter, or any
combination of such forms:
(i) loans,
(ii) loan guarantees,
(iii) price guarantees, and
(iv) purchase agreements.
(B) Such term includes any commitment to provide such assistance.
(12) The term ''Indian tribe'' means any Indian tribe, band, nation,
or other organized group or community, including any Alaska Native
village or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (43 U.S.C. 1601 et
seq.) which is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians.
(13) The term ''motor fuel'' means gasoline, kerosene, and middle
distillates (including diesel fuel).
(14)(A) The term ''municipal waste'' means any organic matter,
including sewage, sewage sludge, and industrial or commercial waste, and
mixtures of such matter and inorganic refuse --
(i) from any publicly or privately operated municipal waste
collection or similar disposal system, or
(ii) from similar waste flows (other than such flows which constitute
agricultural wastes or residues, or wood wastes or residues from wood
harvesting activities or production of forest products).
(B) Such term does not include any hazardous waste, as determined by
the Secretary of Energy for purposes of this chapter.
(15)(A) The term ''municipal waste energy project'' means any
facility (or portion of a facility) located in the United States
primarily for --
(i) the production of biomass fuel (and byproducts) from municipal
waste; or
(ii) the combustion of municipal waste for the purpose of generating
steam or forms of useful energy, including industrial process heat,
mechanical power, or electricity (including cogeneration).
(B) Such term includes any necessary transportation, preparation, and
disposal equipment and machinery for use in or at the site of the
facility involved.
(16) The term ''Office of Alcohol Fuels'' means the Office of Alcohol
Fuels established under section 8820 of this title.
(17) The term ''person'' means any individual, company, cooperative,
partnership, corporation, association, consortium, unincorporated
organization, trust, estate, or any entity organized for a common
business purpose, any State or local government (including any special
purpose district or similar governmental unit) or any agency or
instrumentality thereof, or any Indian tribe or tribal organization.
(18) The term ''State'' means any of the fifty States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands of the
United States, Guam, American Samoa, the Commonwealth of the Northern
Mariana Islands, and the Trust Territory of the Pacific Islands.
(19) The term ''small scale biomass energy project'' means a biomass
energy project with an anticipated annual production capacity of not
more than 1,000,000 gallons of ethanol per year, or its energy
equivalent of other forms of biomass energy.
(Pub. L. 96-294, title II, 203, June 30, 1980, 94 Stat. 683.)
This chapter, referred to in provision preceding par. (1) and in
pars. (11)(A) and (14)(B), was in the original ''this title'', meaning
title II of Pub. L. 96-294, June 30, 1980, 94 Stat. 683, as amended,
known as the Biomass Energy and Alcohol Fuels Act of 1980, which enacted
this chapter, sections 1435 and 3129 of Title 7, Agriculture, and
section 3391a of Title 15, Commerce and Trade, and amended sections 341,
342, 427, and 3154 of Title 7, section 753 of Title 15, and sections
590h and 1642 of Title 16, Conservation. For complete classification of
title II to the Code, see Short Title note set out under section 8801 of
this title and Tables.
Subchapter III of this chapter, referred to in par. (2)(B), was in
the original ''subtitle C'', meaning subtitle C of title II of Pub. L.
96-294, June 30, 1980, 94 Stat. 705, which enacted subchapter III of
this chapter and sections 1435 and 3129 of Title 7, and amended sections
341, 342, 427, and 3154 of Title 7 and sections 590h and 1642 of Title
16.
The Alaska Native Claims Settlement Act, referred to in par. (12),
is Pub. L. 92-203, Dec. 18, 1971, 85 Stat. 688, as amended, which is
classified generally to chapter 33 ( 1601 et seq.) of Title 43, Public
Lands. For complete classification of this Act to the Code, see Short
Title note set out under section 1601 of Title 43 and Tables.
42 USC -- 8803. Funding
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authorization of appropriations
To the extent provided in advance in appropriation Acts, for the two
year period beginning October 1, 1980, there is authorized to be
appropriated and transferred $1,170,000,000 from the Energy Security
Reserve established in the Treasury of the United States under title II
of the Act entitled ''An Act making appropriations for the Department of
the Interior and related agencies for the fiscal year ending September
30, 1980, and for other purposes'' (Public Law 96-126; 93 Stat. 970)
and made available for obligation by such Act only to the extent
provided in advance in appropriation Acts, as follows:
(1) $460,000,000 to the Secretary of Agriculture for carrying out
activities under subchapter I of this chapter, except of the amount of
the financial assistance provided by the Secretary of Agriculture under
subchapter I of this chapter, up to one-third shall be for small-scale
biomass energy projects;
(2) $460,000,000 to the Secretary of Energy for carrying out biomass
energy activities under subchapter I of this chapter, of which at least
$500,000,000 /1/ shall be available to the Office of Alcohol Fuels for
carrying out its activities, and any amount not made available to the
Office of Alcohol Fuels shall be available to the Secretary to carry out
the purposes of subchapter I of this chapter under available authorities
of the Secretary, including authorities under subchapter I of this
chapter; and
(3) $250,000,000 shall be available to the Secretary of Energy for
carrying out activities under subchapter II of this chapter.
(b) Availability of funds until expended
Funds made available under subsection (a) of this section shall
remain available until expended.
(c) Determinations respecting amount of appropriations remaining
available
(1) For purposes of determining the amount of such appropriations
which remain available for purposes of this chapter --
(A) loans shall be counted at the initial face value of the loan;
(B) loan guarantees shall be counted at the initial face value of
such loan guarantee;
(C) price guarantees and purchase agreements shall be counted at the
value determined by the Secretary concerned as of the date of each such
contract based upon the Secretary's determination of the maximum
potential liability of the United States under the contract; and
(D) any increase in the liability of the United States pursuant to
any amendment or other modification to a contract for a loan, loan
guarantee, price guarantee, or purchase agreement, shall be counted to
the extent of such increase.
(2) Determinations under paragraph (1) shall be made in accordance
with generally accepted accounting principles, consistently applied.
(3) If more than one form of financial assistance is to be provided
to any one project, the obligations and commitments thereunder shall be
counted at the maximum potential exposure of the United States on such
project at any time during the life of such project.
(4) Any commitment to provide financial assistance shall be treated
the same as such assistance for purposes of this subsection; except
that any such commitment which is nullified or voided for any reason
shall not be considered for purposes of this subsection.
(d) Financial assistance provided only to extent advanced in
appropriation Acts
Financial assistance may be provided under this chapter only to the
extent provided in advance in appropriation Acts.
(Pub. L. 96-294, title II, 204, June 30, 1980, 94 Stat. 685; Pub.
L. 97-35, title X, 1061-1063, Aug. 13, 1981, 95 Stat. 622.)
The Energy Security Reserve established in the Treasury of the United
States under title II of the Act entitled ''An Act making appropriations
for the Department of the Interior and related agencies for the fiscal
year ending September 30, 1980, and for other purposes'' (Public Law
96-126; 93 Stat. 970), referred to in subsec. (a), was established by
Pub. L. 96-126, title II, 201, Nov. 27, 1979, 93 Stat. 970, which is
set out as a note under section 5915 of this title.
1981 -- Subsec. (a). Pub. L. 97-35, 1063, substituted
''$1,170,000,000'' for ''$1,450,000,000''.
Subsec. (a)(1). Pub. L. 97-35, 1061, substituted ''$460,000,000''
for ''$600,000,000''.
Subsec. (a)(2). Pub. L. 97-35, 1062, substituted ''$460,000,000''
for ''$600,000,000''.
Amendment by Pub. L. 97-35 effective Aug. 13, 1981, see section
1038 of Pub. L. 97-35, set out as a note under section 6240 of this
title.
/1/ So in original. Pub. L. 97-35 decreased appropriation to
$460,000,000 from $600,000,000 without amending sum of $500,000,000.
42 USC -- 8804. Coordination with other authorities and programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The authorities in this chapter are in addition to and do not modify
(except to the extent expressly provided for in this chapter)
authorities and programs of the Department of Energy and of the
Department of Agriculture under other provisions of law.
(Pub. L. 96-294, title II, 205, June 30, 1980, 94 Stat. 686.)
42 USC -- SUBCHAPTER I -- GENERAL BIOMASS ENERGY DEVELOPMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8811. Biomass energy development plans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Plan respecting maximized production and use by December 31,
1982; preparation, transmission, etc.
Not later than 180 days after June 30, 1980, the Secretary of
Agriculture and the Secretary of Energy shall jointly prepare, and
transmit to the President and the Congress, a plan for maximizing in
accordance with this subchapter biomass energy production and use. Such
plan shall be designed to achieve a total level of alcohol production
and use within the United States of at least 60,000 barrels per day of
alcohol by December 31, 1982.
(b) Comprehensive plan respecting maximized production and use from
January 1, 1983, to December 31, 1990, preparation, transmission, etc.
(1) Not later than January 1, 1982, the Secretary of Agriculture and
the Secretary of Energy shall jointly prepare, and transmit to the
President and the Congress, a comprehensive plan for maximizing in
accordance with this subchapter biomass energy production and use, for
the period beginning January 1, 1983, and ending December 31, 1990.
Such plan shall be designed to achieve a level of alcohol production
within the United States equal to at least 10 percent of the level of
gasoline consumption within the United States as estimated by the
Secretary of Energy for the calendar year 1990.
(2) The plan prepared under this subsection shall evaluate the
feasibility of reaching the goals set forth in such subsection.
(c) Required guidelines
The plans prepared under subsections (a) and (b) of this section
shall each include guidelines for use in awarding financial assistance
under this subchapter which are designed to increase, during the period
covered by the plan, the amount of motor fuel displaced by biomass
energy.
(Pub. L. 96-294, title II, 211, June 30, 1980, 94 Stat. 686.)
42 USC -- 8812. Program responsibility and administration and effect
on other programs
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Duties and functions of Secretary of Agriculture and Secretary of
Energy over projects
(1) Except as provided in paragraph (2), in the case of any financial
assistance under this subchapter for a biomass energy project, the
Secretary concerned shall be --
(A) the Secretary of Agriculture, in the case of any biomass energy
project which will have an anticipated annual production capacity of
less than 15,000,000 gallons of ethanol (or the energy equivalent of
other forms of biomass energy) and which will use feedstocks other than
aquatic plants; and
(B) the Secretary of Energy, in the case of any biomass energy
project which will use aquatic plants as feedstocks or which will have
an anticipated annual production capacity of 15,000,000 gallons or more
of ethanol (or the energy equivalent of other forms of biomass energy).
(2)(A) Either the Secretary of Agriculture or the Secretary of Energy
may be the Secretary concerned in the case of any biomass energy project
which will have an anticipated annual production capacity of 15,000,000
gallons or more of ethanol (or the energy equivalent of other forms of
biomass energy) and --
(i) which will use wood or wood wastes or residue, or
(ii) which is owned and operated by a cooperative and will use
feedstocks other than aquatic plants.
(B) Financial assistance may not be provided by either Secretary
under subparagraph (A) without the written concurrence of the other
Secretary. Such concurrence shall be granted or denied by such
Secretary in accordance with subparagraph (C) and on the same standards
as that Secretary applies in making his own awards of financial
assistance under this paragraph.
(C)(i) In the case of a project described in subparagraph (A), the
Secretary concerned shall provide the other Secretary a copy of the
application and such supporting information as may be material, and
shall provide the other Secretary at least 15 days to review the
project. If during such 15-day period the reviewing Secretary provides
written notification to the Secretary concerned specifying reasons why
such project should not proceed, the Secretary concerned shall defer the
final decision on the application for an additional 30 days. During
such 30-day period, both Secretaries shall attempt to reach agreement
regarding all issues raised in the written notice. Before the end of
the 30-day period, the reviewing Secretary shall notify the Secretary
concerned of his decision regarding concurrence. If the reviewing
Secretary fails to provide such notice before the end of such period,
concurrence shall be deemed to have been given.
(ii) The project applicant may reapply for financial assistance for
such project, after making such modifications to the project as may be
necessary to address issues raised by the reviewing Secretary in the
original notice of objection. The subsequent review of such project by
the reviewing Secretary shall be limited to the issues originally raised
by the reviewing Secretary and any issues raised by changed
circumstances.
(D) Both Secretaries may jointly act as the Secretary concerned in
accordance with such procedures as the Secretaries may jointly
prescribe, in which case --
(i) subparagraphs (B) and (C) and subsection (c) of this section
shall not apply, and
(ii) the proportion of financial assistance provided by each
Secretary shall be determined in accordance with the procedures jointly
prescribed.
(b) Procedural requirements applicable
(1) Each Secretary shall take such action as may be necessary to
assure that --
(A) guidelines for soliciting and receiving applications for
financial assistance are established within 90 days after June 30, 1980;
(B) applications for financial assistance for biomass energy projects
are initially solicited within 30 days after such guidelines are
established;
(C) additional applications for financial assistance are solicited
within 1 year after the date of the initial solicitation;
(D) any application is evaluated and a decision made on such
application within 120 days after the receipt of the application,
including review under subsections (a)(2)(C), (a)(2)(D), or (c) of this
section; and
(E) all interested persons are provided the easiest possible access
to the application process, including procedures which assure that --
(i) information concerning financial assistance from either Secretary
is available through all appropriate offices of the Department of
Agriculture and the Department of Energy, and other regional and local
offices of the Federal Government, as may be appropriate;
(ii) all such locations where such information is available will be
able to accept and file applications, and will forward them to the
Secretary concerned; and
(iii) the procedures established for accepting, evaluating, and
awarding financial assistance will provide for categories of biomass
energy projects, according to size and provide to the maximum extent
practicable the simplest procedures for small producers.
(2) The procedural requirements of subparagraphs (A) through (D) of
paragraph (1) shall not apply to either Secretary to the extent that the
Secretary finds that other procedures are adopted for the solicitation,
evaluation, and awarding of financial assistance which will result in
applications being processed more expeditiously.
(c) Notice to and reviewing functions of other Secretary concerning
application for financial assistance
(1) After evaluating any application and before awarding any
financial assistance on the basis of that application, the Secretary
concerned shall provide the other Secretary with --
(A) a copy of the application and such supporting material as may be
appropriate, and
(B) an opportunity of not less than 15 days to review the
application.
This subsection shall not apply in the case of a project subject to
review under subsection (a)(2)(C) of this section.
(2) If the reviewing Secretary provides written notice specifying any
issues regarding matters subject to the Secretary's review to the
Secretary concerned before the end of the 15-day review period, the
Secretary concerned shall defer a final decision on the application for
an additional 30 days to provide an opportunity for both Secretaries to
answer and resolve such issues. At the expiration of the 30-day period,
the Secretary concerned may make a final decision with respect to the
application, using the best judgment of the Secretary concerned to
resolve any remaining issues.
(3) Reviews of projects under the provisions of subsection (a)(2)(C)
of this section or paragraph (1)(B) by the Secretary of Agriculture
shall be for the purpose of considering the national, regional, and
local agricultural policy impacts of such project on agricultural
supply, production, and use, and reviews by the Secretary of Energy
under such provisions shall be for the purpose of considering national
energy policy impacts and the technical feasibility of the project.
(4) The Secretary of Agriculture and the Secretary of Energy may
jointly establish categories of projects to which paragraphs (1) and (2)
shall not apply. Within 90 days after June 30, 1980, the Secretaries
shall identify potential categories and make an initial determination of
exempted categories.
(d) Notification of applicant upon disapproval of application for
financial assistance
If any application for financial assistance under this subchapter is
disapproved, the applicant shall be provided written notice of the
reasons for the disapproval.
(e) Implementation of functions assigned to Secretary of Agriculture
by administrative entities within Department of Agriculture; issuance
of regulations; coordination of functions by designated entities
(1) The functions assigned under this subchapter to the Secretary of
Agriculture may be carried out by any of the administrative entities in
the Department of Agriculture which the Secretary of Agriculture may
designate. Within 30 days after June 30, 1980, the Secretary of
Agriculture shall make such designations and notify the Congress of the
administrative entity or entities so designated and the officials in
such administrative entity or entities who are to be responsible for
such functions.
(2) The Secretary of Agriculture may issue such regulations as are
necessary to carry out functions assigned to the Secretary of
Agriculture under this subchapter.
(3) The entities or entity designated under paragraph (1) shall
coordinate the administration of functions assigned to it under this
subsection with any other biomass energy programs within the Department
of Agriculture established under other provisions of law.
(f) Implementation of functions assigned to Secretary of Energy by
Office of Alcohol Fuels
The functions under this subchapter which are assigned to the
Secretary of Energy and which relate to alcohol production shall be
carried out by the Office of Alcohol Fuels.
(g) Energy equivalency determinations respecting biomass energy and
ethanol
For purposes of this subchapter, the quantity of any biomass energy
which is the energy equivalent to 15,000,000 gallons of ethanol shall be
prescribed jointly by the Secretary of Agriculture and the Secretary of
Energy within 30 days after June 30, 1980.
(Pub. L. 96-294, title II, 212, June 30, 1980, 94 Stat. 687.)
42 USC -- 8813. Insured loans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary of Agriculture; maximum amount per
project
Subject to sections 8812 and 8817 of this title, the Secretary of
Agriculture may commit to make, and make, insured loans in amounts not
to exceed $1,000,000 per project for the construction of small-scale
biomass energy projects.
(b) Estimated project construction costs as determinative of initial
and revised amount of loan; interest rate
(1) Any insured loan under this section --
(A) may not exceed 90 per centum of the total estimated cost of
construction of the biomass energy project involved, and
(B) shall bear interest at rates determined by the Secretary of
Agriculture, taking into consideration the current average market yield
on outstanding marketable obligations of the United States with
remaining periods to maturity comparable to the average maturities of
such loans, plus not to exceed one per centum, as determined by the
Secretary of Agriculture, and adjusted to the nearest one-eighth of one
per centum.
(2) In the event the total estimated costs of construction of the
project thereafter exceed the total estimated costs initially determined
by the Secretary of Agriculture, the Secretary may in addition, upon
application therefor, make an insured loan for so much of the additional
estimated total costs as does not exceed 10 per centum of the total
costs initially estimated.
(c) Funding requirements; ''insured loan'' defined
(1) The Secretary of Agriculture shall make insured loans under this
section using, to the extent provided in advance in appropriations Acts,
the Agricultural Credit Insurance Fund in section 309 of the
Consolidated Farm and Rural Development Act (7 U.S.C. 1929) or the Rural
Development Insurance Fund in section 309A of such Act (7 U.S.C. 1929a)
(hereinafter in this section referred to as the ''Funds''). The
Secretary of Agriculture may not use an aggregate amount of funds to
make or commit to make insured loans under this section in excess of the
aggregate amount for insured loans and administrative costs appropriated
and transferred under section 8803 of this title. The terms,
conditions, and requirements applicable to such insured loans shall be
in accordance with this subchapter.
(2) There shall be reimbursed to the Funds, from appropriations made
under section 8803 of this title, amounts equal to the operating and
administrative costs incurred by the Secretary of Agriculture in
insuring loans under this section.
(3) Notwithstanding any provision of the Consolidated Farm and Rural
Development Act (7 U.S.C. 1921 et seq.), no funds made available to the
Secretary of Agriculture under this section for insured loans shall be
used for any other purpose.
(4) For purposes of this section, the term ''insured loan'' means a
loan which is made, sold, and insured.
(d) Preconditions
An insured loan may not be made under this section unless the
applicant for such loan has established to the satisfaction of the
Secretary that the applicant is unable without such a loan to obtain
sufficient credit elsewhere at reasonable rates and terms, taking into
consideration prevailing private and cooperative rates and terms for
loans for similar purposes and periods of time, to finance the
construction of the biomass energy project for which such loan is
sought.
(Pub. L. 96-294, title II, 213, June 30, 1980, 94 Stat. 690.)
The Consolidated Farm and Rural Development Act, referred to in
subsec. (c)(3), is title III of Pub. L. 87-128, Aug. 8, 1961, 75
Stat. 307, as amended, which is classified principally to chapter 50 (
1921 et seq.) of Title 7, Agriculture. For complete classification of
this Act to the Code, see Short Title note set out under section 1921 of
Title 7 and Tables.
42 USC -- 8814. Loan guarantees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary concerned
Subject to sections 8812 and 8817 of this title, the Secretary
concerned may commit to guarantee, and guarantee, against loss of
principal and interest, loans which are made to provide funds for the
construction of biomass energy projects.
(b) Estimated project construction costs as determinative of initial
and revised amount of guarantee
(1) Any guarantee of a loan under this section may not exceed 90 per
centum of the cost of the construction of the biomass energy project
involved, as estimated by the Secretary on the date of the guarantee or
commitment to guarantee.
(2) In the event the construction costs of the project are thereafter
estimated by the Secretary concerned to exceed the construction costs
initially estimated by the Secretary, the Secretary may in addition,
upon application therefor, guarantee, against loss of principal and
interest, a loan for up to 60 per centum of the difference between the
construction costs then estimated and the construction costs initially
estimated.
(c) Debt obligation; ineligibility for purchase, etc., by Federal
Financing Bank or any Federal agency
Notwithstanding the provisions of the Federal Financing Bank Act of
1973 (12 U.S.C. 2281 et seq.) or any other provision of law (except as
may be specifically provided by reference to this subsection in any Act
enacted after June 30, 1980), no debt obligation which is guaranteed or
committed to be guaranteed by the Secretary of Agriculture or the
Secretary of Energy under this section shall be eligible for purchase
by, or commitment to purchase by, or sale or issuance to, the Federal
Financing Bank or any Federal agency.
(d) Terms and conditions
The terms and conditions of loan guarantees under this section shall
provide that, if the Secretary concerned makes a payment of principal or
interest upon the default by a borrower, the Secretary shall be
subrogated to the rights of the recipient of such payment (and such
subrogation shall be expressly set forth in the loan guarantee or
related agreements).
(e) Termination, cancellation, or revocation, and conclusive nature
of guarantee
Any loan guarantee under this section shall not be terminated,
canceled, or otherwise revoked, except in accordance with the terms
thereof and shall be conclusive evidence that such guarantee complies
fully with the provisions of this chapter and of the approval and
legality of the principal amount, interest rate, and all other terms of
the securities, obligations, or loans and of the guarantee.
(f) Payment to lender
If the Secretary concerned determines that --
(1) the borrower is unable to meet payments and is not in default,
(2) it is in the public interest to permit the borrower to continue
with such project, and
(3) the probable net benefit to the United States in paying the
principal and interest due under the loan will be greater than that
which would result in the event of a default,
then the Secretary may pay to the lender under a loan guarantee
agreement an amount not greater than the principal and interest which
the borrower is obligated to pay to such lender, if the borrower agrees
to reimburse the Secretary for such payment on terms and conditions,
including interest, which the Secretary determines are sufficient to
protect the financial interests of the United States.
(g) Preconditions
(1) A loan may not be guaranteed under this section unless the
applicant for such loan has established to the satisfaction of the
Secretary concerned that the lender is not willing without such a
guarantee to extend credit to the applicant at reasonable rates and
terms, taking into consideration prevailing rates and terms for loans
for similar purposes and periods of time, to finance the construction of
the biomass energy project for which such loan is sought.
(2) The Secretary concerned shall ensure that the lender bears a
reasonable degree of risk in the financing of such project.
(Pub. L. 96-294, title II 214, June 30, 1980, 94 Stat. 690.)
The Federal Financing Bank Act of 1973, referred to in subsec. (c),
is Pub. L. 93-224, Dec. 29, 1973, 87 Stat. 937, as amended, which is
classified generally to chapter 24 ( 2281 et seq.) of Title 12, Banks
and Banking. For complete classification of this Act to the Code, see
Short Title note set out under section 2281 of Title 12 and Tables.
Funds
Pub. L. 101-121, title II, Oct. 23, 1989, 103 Stat. 732, provided
that:
''Notwithstanding 31 U.S.C. 3302, funds derived from the sale of
assets as a result of defaulted loans made under the Department of
Energy Alcohol Fuels Loan Guarantee program, or any other funds received
in connection with this program, shall hereafter be credited to the
Biomass Energy Development account, and shall be available solely for
payment of the guaranteed portion of defaulted loans and associated
costs of the Department of Energy Alcohol Fuels Loan Guarantee program
for loans guaranteed prior to January 1, 1987.
''Unobligated balances available in the 'Alternative fuels
production' account may hereafter be used for payment of the guaranteed
portion of defaulted loans and associated costs of the Department of
Energy Alcohol Fuels Loan Guarantee program, subject to the
determination by the Secretary of Energy that such unobligated funds are
not needed for carrying out the purposes of the Alternative Fuels
Production program: Provided, That the use of these unobligated funds
for payment of defaulted loans and associated costs shall be available
only for loans guaranteed prior to January 1, 1987: Provided further,
That such funds shall be used only after the unobligated balance in the
Department of Energy Alcohol Fuel Loan Guarantee reserve has been
exhausted.''
42 USC -- 8815. Price guarantees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary concerned; minimum sales price
Subject to sections 8812 and 8817 of this title, the Secretary
concerned may commit to guarantee, and guarantee, that the price that
the owner or operator of any biomass energy project will receive for all
or part of the production from that project shall not be less than a
specified sales price determined as of the date of execution of the
price guarantee or commitment to guarantee.
(b) Cost-plus arrangements as basis
(1) No price guarantee under this section may be based upon a
cost-plus arrangement, or variant thereof, which guarantees a profit to
the owner or operator involved.
(2) The use of a cost-of-service pricing mechanism by a person
pursuant to law, or by a regulatory body establishing rates for a
regulated person, shall not be deemed to be a cost-plus arrangement, or
variant thereof, for purposes of paragraph (1).
(c) Maximum dollar amount of liability of United States
Each price guarantee, or commitment to guarantee, which is made under
this section shall specify the maximum dollar amount of liability of the
United States under that guarantee.
(d) Renegotiation of sales price and maximum liability
If the Secretary determines, in the discretion of the Secretary, that
--
(1) a biomass energy project would not otherwise be satisfactorily
completed or continued, and
(2) completion or continuation of such project would be necessary to
achieve the purposes of this chapter,
the sales price set forth in the price guarantee, and maximum
liability under such guarantee, may be renegotiated.
(Pub. L. 96-294, title II, 215, June 30, 1980, 94 Stat. 692.)
42 USC -- 8816. Purchase agreements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary concerned; consultative requirements
Subject to sections 8812 and 8817 of this title, the Secretary
concerned may commit to make, and make, purchase agreements for all or
part of the biomass energy production of any biomass energy project, if
the Secretary determines --
(1) that such biomass energy is of a type, quantity, and quality that
can be used by Federal agencies; and
(2) that the quantity of such biomass energy, if delivery is
accepted, would not exceed the likely needs of Federal agencies.
Each Secretary concerned shall consult with the other Secretary
before making any determination under paragraph (2).
(b) Maximum sales price
The sales price specified in a purchase agreement under this section
may not exceed the estimated prevailing market price as of the date of
delivery, as determined by the Secretary of Energy, unless the Secretary
concerned determines that such sales price must exceed the estimated
prevailing market price in order to ensure the production of biomass
energy to achieve the purposes of this chapter.
(c) Assurances required
The Secretary concerned in entering into, or committing to enter
into, a purchase agreement under this section shall require --
(1) assurances that the quality of the biomass energy purchased will
meet standards for the use for which such energy is purchased;
(2) assurances that the ordered quantities of such energy will be
delivered on a timely basis; and
(3) such other assurances as may reasonably be required.
(d) Arrangements for delivery pursuant to agreement; charge to
Federal agency receiving delivery
The Secretary concerned may take delivery of biomass energy pursuant
to a purchase agreement under this section if appropriate arrangements
have been made for its distribution to and use by one or more Federal
agencies. Any Federal agency receiving such energy shall be charged (in
accordance with otherwise applicable law), from sums appropriated to
such Federal agency, for the prevailing market price as of the date of
delivery, as determined by the Secretary of Energy, for the product
which the biomass energy is replacing.
(e) Consultative requirements
The Secretary concerned shall consult with the Secretary of Defense
and the Administrator of the General Services Administration in carrying
out this section.
(f) Terms and conditions
Each purchase agreement, and commitment to enter into a purchase
agreement, under this section shall provide that the Secretary concerned
retains the right to refuse delivery of the biomass energy involved upon
such terms and conditions as shall be specified in the purchase
agreement.
(g) Maximum dollar amount of liability of United States
Each purchase agreement, or commitment to enter into a purchase
agreement, which is made under this section shall specify the maximum
dollar amount of liability of the United States under that agreement.
(h) Renegotiation of sales price and maximum liability
If the Secretary concerned determines, in the discretion of the
Secretary, that --
(1) a biomass energy project would not otherwise be satisfactorily
completed or continued, and
(2) completion or continuation of such project would be necessary to
achieve the purposes of this chapter,
the sales price set forth in the purchase agreement, and maximum
liability under such agreement, may be renegotiated.
(Pub. L. 96-294, title II, 216, June 30, 1980, 94 Stat. 692.)
42 USC -- 8817. General requirements regarding financial assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Priorities, terms, availability, etc.
(1) Priority for financial assistance under this subchapter, and the
most favorable financial terms available, shall be provided to a person
for any biomass energy project that --
(A) uses a primary fuel other than petroleum or natural gas in the
production of biomass fuel, such as geothermal energy resources, solar
energy resources, or waste heat; or
(B) applies new technologies which expand the possible feedstocks,
produces new forms of biomass energy, or produces biomass fuel using
improved or new technologies.
Nothing in this paragraph shall be construed to exclude financial
assistance for any project which does not use such a fuel or apply such
a technology.
(2)(A) Financial assistance under this subchapter shall be available
for a biomass energy project only if the Secretary concerned finds that
the Btu content of the motor fuels to be used in the facility involved
to produce the biomass fuel will not exceed the Btu content of the
biomass fuel produced in the facility.
(B) In making the determination under subparagraph (A), the Secretary
concerned shall take into account any displacement of motor fuel or
other petroleum products which the applicant has demonstrated to the
satisfaction of the Secretary would result from the use of the biomass
fuel produced in the facility involved.
(3) No financial assistance may be provided under this subchapter to
any person for any biomass energy project if the Secretary concerned
finds that the process to be used by the project will not extract the
protein content of the feedstock for utilization as food or feed for
readily available markets in any case in which to do so would be
technically and economically practicable.
(4) Financial assistance may not be provided under this subchapter to
any person unless the Secretary concerned --
(A) finds that necessary feedstocks are available and it is
reasonable to expect they will continue to be available in the future,
and, for biomass energy projects using wood or wood wastes or residues
from the National Forest System, there shall be taken into account
current levels of use by then existing facilities;
(B) has obtained assurance that the person receiving such financial
assistance will bear a reasonable degree of risk in the construction and
operation of the project; and
(C) has determined that the amount of financial assistance provided
for the project is not greater than is necessary to achieve the purposes
of this chapter.
(5) In providing financial assistance under this subchapter, the
Secretary concerned shall give due consideration to promoting
competition.
(6) In determining the amount of financial assistance for any biomass
energy project which will yield byproducts in addition to biomass
energy, the Secretary shall consider the potential value of such
byproducts and the costs attributable to their production.
(b) Terms, conditions, maturity, etc., for insured loans, and loan
guarantees
An insured loan may not be made, and a loan guarantee may not be
issued, under this subchapter unless the Secretary concerned determines
that the terms, conditions, maturity, security, and schedule and amounts
of repayments with respect to such loan are reasonable and meet such
standards as the Secretary determines are sufficient to protect the
financial interests of the United States.
(c) Application requirements
(1) No financial assistance may be provided to any person under this
subchapter unless an application therefor --
(A) has been submitted to the Secretary concerned by that person in
such form and under such procedures as the Secretary shall prescribe,
consistent with the requirements of this subchapter, and
(B) has been approved by the Secretary in accordance with such
procedures.
(2) Each such application shall include information regarding the
construction costs of the biomass energy project involved, and estimates
of operating costs and income relating to that project (including the
sale of any byproducts from that project). In addition, each applicant
shall provide --
(A) access at reasonable times to such other information, and
(B) such assurances,
as the Secretary concerned may require.
(d) Reports and recordkeeping
(1) Every recipient of financial assistance under this subchapter
shall, as a condition precedent thereto, consent to such examinations
and reports regarding the biomass energy project involved as the
Secretary concerned may require.
(2) With respect to each biomass energy project for which financial
assistance is provided under this subchapter, the Secretary shall --
(A) require from the recipient of financial assistance such reports
and records relating to that project as the Secretary deems necessary;
(B) prescribe the manner in which such recipient shall keep such
records; and
(C) have access to such records at reasonable times for the purpose
of ensuring compliance with the terms and conditions upon which
financial assistance is provided.
(e) Contracts and instruments of Secretary concerned backed by full
faith and credit of United States
All contracts and instruments of the Secretary concerned to provide,
or providing, for financial assistance shall be general obligations of
the United States backed by its full faith and credit.
(f) Contestability of contracts
Subject to the conditions of any contract for financial assistance,
such contract shall be incontestable in the hands of the holder, except
as to fraud or material misrepresentation on the part of the holder.
(g) Fees for loan guarantees, etc.
(1) A fee or fees may be charged and collected by the Secretary
concerned for any loan guarantee, price guarantee, or purchase agreement
provided under this subchapter.
(2) The amount of such fee shall be based on the estimated
administrative costs and risk of loss, except that such fee may not
exceed 1 per centum of the amount of the financial assistance provided.
(h) Deposit of amounts received by Secretary concerned
All amounts received by the Secretary of Agriculture or the Secretary
of Energy as fees, interest, repayment of principal, and any other
moneys received by either Secretary from activities under this
subchapter shall be deposited in the Treasury of the United States as
miscellaneous receipts. The preceding sentence shall not apply to
insured loans made under section 8813 of this title.
(Pub. L. 96-294, title II, 217, June 30, 1980, 94 Stat. 693.)
42 USC -- 8818. Reports
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Repealed. Pub. L. 99-386, title I, 101(a), Aug. 22, 1986, 100
Stat. 821
(b) Comprehensive list of loans, grants, etc.
Within 120 days after June 30, 1980, the Secretary of Energy and the
Secretary of Agriculture shall submit to the Congress a comprehensive
list of all the types of loans, grants, incentives, rebates, or any
other such private, State, or Federal economic or financial benefits now
in effect or proposed which can be or have been used for production of
alcohol to be used as a motor fuel or petroleum substitute.
(c) Annual reports; report evaluating overall impact and plan for
termination of Office of Alcohol Fuels
(1)(A) The Office of Alcohol Fuels shall submit to the Congress and
the President annual reports containing a general description of the
Office's operations during the year and a description and evaluation of
each biomass energy project for which financial assistance by the Office
is then in effect.
(B) Each annual report shall describe progress made toward meeting
the goals of this subchapter and contain specific recommendations on
what actions the Congress could take in order to facilitate the work of
the Office in achieving such goals.
(C) Each annual report under this subsection shall contain financial
statements prepared by the Office.
(2) On or before September 30, 1990, the Office shall submit to the
Congress and the President a report evaluating the overall impact made
by the Office and describing the status of each biomass energy project
which has received financial assistance under this subchapter from the
Office. Such report shall contain a plan for the termination of the
work of the Office.
(Pub. L. 96-294, title II, 218, June 30, 1980, 94 Stat. 695; Pub.
L. 99-386, title I, 101(a), Aug. 22, 1986, 100 Stat. 821.)
1986 -- Subsec. (a). Pub. L. 99-386 struck out subsec. (a) which
related to submission of quarterly reports to the President and Congress
by Secretary of Agriculture and Secretary of Energy.
42 USC -- 8819. Review; reorganization
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The President shall review periodically the progress of the
Secretary of Agriculture and the Secretary of Energy in carrying out the
purposes of this subchapter.
(b) If the President determines it necessary in order to achieve such
purposes the President may, in accordance with the provisions of chapter
9 of title 5, provide for a reorganization, including any required
realignment of the respective programs of the Secretaries under this
subchapter.
(Pub. L. 96-294, title II, 219, June 30, 1980, 94 Stat. 695.)
42 USC -- 8820. Office of Alcohol Fuels
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment in Department of Energy; appointment and
compensation of Director
There is hereby established within the Department of Energy an Office
of Alcohol Fuels (hereinafter in this section referred to as the
''Office'') to be headed by a Director, who shall be appointed by the
President, by and with the advice and consent of the Senate, and who
shall be compensated at the rate provided for level IV of the Executive
Schedule under section 5315 of title 5.
(b) Responsibilities of Director
(1) The Director shall be responsible for carrying out the functions
of the Secretary of Energy under this subchapter which relate to
alcohol, including the terms and conditions of financial assistance and
the selection of recipients for that assistance, subject to the general
supervision of the Secretary of Energy.
(2) The Director shall be responsible directly to the Secretary of
Energy.
(c) Annual authorization and appropriation requests for support of
Office
In each annual authorization and appropriation request, the Secretary
shall identify the portion thereof intended for the support of the
Office and include a statement by the Office (1) showing the amount
requested by the Office in its budgetary presentation to the Secretary
and the Office of Management and Budget and (2) an assessment of the
budgetary needs of the Office. Whenever the Office submits to the
Secretary, the President, or the Office of Management and Budget, any
formal legislative recommendation or testimony, or comments on
legislation, prepared for submission to Congress, the Office shall
concurrently transmit a copy thereof to the appropriate committees of
Congress.
(d) Consultations respecting coordination of programs
The Secretary of Energy, after consultation with the Director, shall
consult with the Secretary of the Treasury, the Secretary of
Agriculture, the Secretary of Transportation, the Secretary of Commerce,
the Administrator of the Community Services Administration, the
Administrator of the Environmental Protection Agency, or their appointed
representatives, in order to coordinate the programs under the
Director's responsibility with other programs within the Department of
Energy and in such Federal agencies, which are related to the production
of alcohol.
(Pub. L. 96-294, title II, 220, June 30, 1980, 94 Stat. 696.)
Community Services Administration, which was established by section
601 of Economic Opportunity Act of 1964, as amended (42 U.S.C. 2941),
terminated when Economic Opportunity Act of 1964, Pub. L. 88-452, Aug.
20, 1964, 78 Stat. 508, as amended, was repealed, except for titles
VIII and X, effective Oct. 1, 1981, by section 683(a) of Pub. L.
97-35, title VI, Aug. 13, 1981, 95 Stat. 519, which is classified to
42 U.S.C. 9912(a). An Office of Community Services, headed by a
Director, was established in Department of Health and Human Services by
section 676 of Pub. L. 97-35, which is classified to 42 U.S.C. 9905.
42 USC -- 8821. Termination of authorities; modification of terms and
conditions of conditional commitments for loan guarantees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
No insured loan, loan guarantee, price guarantee, or purchase
agreement may be committed to or made under this subchapter after
September 30, 1984, except that all conditional commitments for loan
guarantees under this subchapter which were in existence on September
30, 1984, are hereby extended through June 30, 1987. This section shall
not be construed to affect the authority of the Secretary concerned to
spend funds after such date pursuant to any contract for financial
assistance made on or before that date under this subchapter.
Notwithstanding any other provision of this subchapter, the Secretary of
Energy may modify the terms and conditions of any conditional commitment
for a loan guarantee under this subchapter made before October 1, 1984,
including the amount of the loan guarantee. Nothing in this section
shall be interpreted as indicating Congressional approval with respect
to any pending conditional commitments under this Act.
(Pub. L. 96-294, title II, 221, June 30, 1980, 94 Stat. 696; Pub.
L. 99-24, 1(a), Apr. 16, 1985, 99 Stat. 50; Pub. L. 99-190, 101(a),
Dec. 19, 1985, 99 Stat. 1185; Pub. L. 99-272, title VII, 7301, Apr. 7,
1986, 100 Stat. 143; Pub. L. 99-500, 101(h) (title III, 318), Oct.
18, 1986, 100 Stat. 1783-242, 1783-286, and Pub. L. 99-591, 101(h)
(title III, 318), Oct. 30, 1986, 100 Stat. 3341-242, 3341-287; Pub. L.
100-202, 106, Dec. 22, 1987, 101 Stat. 1329-433.)
This Act, referred to in text, is Pub. L. 96-294, June 30, 1980, 94
Stat. 611, as amended, known as the Energy Security Act. For complete
classification of this Act to the Code, see Short Title note set out
under section 8801 of this title and Tables.
Pub. L. 99-591 is a corrected version of Pub. L. 99-500.
Amendment of section by Pub. L. 99-190 is based on section 630 of
title VI of H.R. 3037 (Agriculture, Rural Development, and Related
Agencies Appropriations Act, 1986), as incorporated by reference by
section 101(a) of Pub. L. 99-190, and enacted into law by section 106
of Pub. L. 100-202.
1987 -- For amendment by Pub. L. 100-202, see 1985 Amendment note
below.
1986 -- Pub. L. 99-500 and Pub. L. 99-591 substituted ''through
June 30, 1987'' for ''through June 30, 1986''.
Pub. L. 99-272 made amendment substantially identical to that by Pub.
L. 99-190, substituting ''through June 30, 1986'' for ''through
September 30, 1985'' and inserting provisions authorizing the Secretary
of Energy to modify the terms and conditions of any conditional
commitment for a loan guarantee under this subchapter made before Oct.
1, 1984, including the amount of the guarantee, and further providing
that nothing in this section shall be interpreted as indicating
Congressional approval with respect to any pending conditional
commitments.
1985 -- Pub. L. 99-190, 101(a), as enacted by Pub. L. 100-202,
substituted ''through June 30, 1986'' for ''through September 30, 1985''
and inserted provisions authorizing the Secretary of Energy to modify
the terms and conditions of any conditional commitment for a loan
guarantee under this subchapter made before Oct. 1, 1984, including the
amount of the guarantee, and further providing that nothing in this
section shall be interpreted as indicating Congressional approval with
respect to any pending conditional commitments. See Codification note
above.
Pub. L. 99-24 inserted '', except that all conditional commitments
for loan guarantees under this subchapter which were in existence on
September 30, 1984, are hereby extended through September 30, 1985''.
Section 106 of Pub. L. 100-202 provided that the amendment made by
that section is effective on date of enactment (Dec. 19, 1985) of the
''pertinent joint resolution'' making continuing appropriations for
fiscal year 1986 (Pub. L. 99-190).
Section 1(b) of Pub. L. 99-24 provided that: ''Enactment of this
Act (amending this section) shall not be interpreted as indicating
congressional approval with respect to any pending conditional
commitments under this Act.''
42 USC -- SUBCHAPTER II -- MUNICIPAL WASTE BIOMASS ENERGY
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8831. Municipal waste energy development plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Preparation by Secretary of Energy; consultative requirements
The Secretary of Energy shall prepare a comprehensive plan for
carrying out this subchapter. In the preparation of such plan, the
Secretary shall consult with the Administrator of the Environmental
Protection Agency, the Secretary of Commerce, and the head of such other
Federal agencies as the Secretary deems appropriate.
(b) Transmittal to President and Congress
Not later than 90 days after June 30, 1980, the Secretary shall
transmit the comprehensive plan to the President and the Congress.
(c) Required statements
The comprehensive plan under this section shall include a statement
setting forth --
(1) the anticipated research, development, demonstration, and
commercialization objectives to be achieved;
(2) the management structure and approach to be adopted to carry out
such plan;
(3) the program strategies, including detailed milestone goals to be
achieved;
(4) the specific funding requirements for individual program elements
and activities, including the total estimated construction costs of
proposed projects; and
(5) the estimated relative financial contributions of the Federal
Government and non-Federal participants in the program.
(d) Report to President and Congress; contents
Not later than January 1, 1982, the Secretary shall prepare and
submit to the President and the Congress a report containing a complete
description of any financial, institutional, environmental, and social
barriers to the development and application of technologies for the
recovery of energy from municipal wastes.
(Pub. L. 96-294, title II, 231, June 30, 1980, 94 Stat. 696.)
42 USC -- 8832. Construction loans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary of Energy
Subject to sections 8835 and 8836 of this title, the Secretary of
Energy may commit to make, and make, loans for the construction of
municipal waste energy projects.
(b) Estimated project construction costs as determinative of initial
and revised amount of loan; interest rate
(1) Any loan under this section --
(A) may not exceed 80 per centum of the total estimated cost of the
construction of the municipal waste energy project involved, and
(B) shall bear interest at a rate determined by the Secretary of
Energy (taking into consideration the current average market yield on
outstanding marketable obligations of the United States with remaining
periods to maturity comparable to the average maturities of such loans)
plus not to exceed one per centum, as determined by the Secretary of
Energy, and adjusted to the nearest one-eighth of one per centum.
(2) In the event the total estimated costs of construction of the
project thereafter exceed the total estimated costs initially determined
by the Secretary of Energy, the Secretary may in addition, upon
application therefor, make a loan for so much of the additional
estimated costs as does not exceed 10 per centum of the initial total
estimated costs of construction.
(c) Preconditions
A loan may not be made under this section unless the person applying
for such loan has established to the satisfaction of the Secretary of
Energy that the applicant is unable without such a loan to obtain
sufficient credit elsewhere at reasonable rates and terms, taking into
consideration prevailing market rates and terms for loans for similar
periods of time, to finance the construction of the project for which
such loan is sought.
(Pub. L. 96-294, title II, 232, June 30, 1980, 94 Stat. 697.)
42 USC -- 8833. Guaranteed construction loans
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary of Energy
Subject to sections 8835 and 8836 of this title, the Secretary of
Energy may commit to guarantee, and guarantee, against loss on up to 90
per centum of the principal and interest, any loan which is made solely
to provide funds for the construction of a municipal waste energy
project and which does not exceed 90 per centum of the cost of the
construction of the project involved, as estimated by the Secretary on
the date of the guarantee or commitment to guarantee.
(b) Estimated project construction costs as determinative of revised
amount of guarantee
In the event the total estimated costs of construction of the project
thereafter exceed the total estimated costs initially determined by the
Secretary of Energy, the Secretary may in addition, upon application
therefor, guarantee, against loss on up to 90 per centum of the
principal and interest, a loan for so much of the additional estimated
total costs as does not exceed 10 per centum of the total estimated
costs.
(c) Terms and conditions
The terms and conditions of loan guarantees under this section shall
provide that, if the Secretary of Energy makes a payment of principal or
interest upon the default by a borrower, the Secretary shall be
subrogated to the rights of the recipient of such payment (and such
subrogation shall be expressly set forth in the loan guarantee or
related agreements).
(d) Termination, cancellation, or revocation, and conclusive nature
of guarantee
Any loan guarantee under this section shall not be terminated,
canceled, or otherwise revoked, except in accordance with the terms
thereof and shall be conclusive evidence that such guarantee complies
fully with the provisions of this chapter and of the approval and
legality of the principal amount, interest rate, and all other terms of
the securities, obligations, or loans and of the guarantee.
(e) Payment to lender
If the Secretary of Energy determines that --
(1) the borrower is unable to meet payments and is not in default,
(2) it is in the public interest to permit the borrower to continue
to pursue the purposes of such project, and
(3) the probable net benefit to the United States in paying the
principal and interest due under a loan guarantee agreement will be
greater than that which would result in the event of a default,
then the Secretary may pay to the lender under a loan guarantee
agreement an amount not greater than the principal and interest which
the borrower is obligated to pay to such lender, if the borrower agrees
to reimburse the Secretary for such payment on terms and conditions,
including interest, which the Secretary determines are sufficient to
protect the financial interests of the United States.
(f) Preconditions
A loan may not be guaranteed under this section unless the applicant
for such loan has established to the satisfaction of the Secretary of
Energy that the lender is not willing without such a guarantee to extend
credit to the applicant at reasonable rates and terms, taking into
consideration prevailing market rates and terms for loans for similar
periods of time, to finance the construction of the project for which
such loan is sought.
(g) Payment of interest; tax consequences
(1) With respect to any loan or debt obligation which is --
(A) issued after June 30, 1980, by, or on behalf of, any State or any
political subdivision or governmental entity thereof,
(B) guaranteed by the Secretary of Energy under this section, and
(C) not supported by the full faith and credit of the issuer as a
general obligation of the issuer,
the interest paid on such obligation and received by the purchaser
thereof (or the purchaser's successors in interest) shall be included in
gross income for the purposes of chapter 1 of title 26.
(2) With respect to the amount of obligations described in paragraph
(1) that the issuer would have been able to issue as tax exempt
obligations (other than obligations secured by the full faith and credit
of the issuer as a general obligation of the issuer), the Secretary of
Energy is authorized to pay only to the issuer any portion of the
interest on such obligations, as determined by the Secretary of the
Treasury after taking into account the interest rate which would have
been paid on the obligations had they been issued as tax exempt
obligations without being so guaranteed by the Secretary of Energy and
the interest rate actually paid on the obligations when issued as
taxable obligations. Such payments shall be made in amounts determined
by the Secretary of Energy, and in accordance with such terms and
conditions as the Secretary of the Treasury shall require.
(h) Fees
(1) A fee or fees may be charged and collected by the Secretary of
Energy for any loan guarantee under this section.
(2) The amount of such fee shall be based on the estimated
administrative costs and risk of loss, except that such fee may not
exceed 1 per centum of the maximum of the guarantee.
(Pub. L. 96-294, title II, 233, June 30, 1980, 94 Stat. 698; Pub.
L. 99-514, 2, Oct. 22, 1986, 100 Stat. 2095.)
This chapter, referred to in subsec. (d), was in the original ''this
title'', meaning title II of Pub. L. 96-294, June 30, 1980, 94 Stat.
683, as amended, known as the Biomass Energy and Alcohol Fuels Act of
1980, which enacted this chapter, sections 1435 and 3129 of Title 7,
Agriculture, and section 3391a of Title 15, Commerce and Trade, and
amended sections 341, 342, 427, and 3154 of Title 7, section 753 of
Title 15, and sections 590h and 1642 of Title 16, Conservation. For
complete classification of title II to the Code, see Short Title note
set out under section 8801 of this title and Tables.
1986 -- Subsec. (g)(1). Pub. L. 99-514 substituted ''Internal
Revenue Code of 1986'' for ''Internal Revenue Code of 1954'', which for
purposes of codification was translated as ''title 26'' thus requiring
no change in text.
title.
42 USC -- 8834. Price support loans and price guarantees
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Authority of Secretary of Energy with respect to loans for
existing projects; disbursements, etc.
(1) In the case of any existing municipal waste energy project which
produces and sells biomass energy, the Secretary of Energy may commit to
make, and make, a price support loan in amounts determined under
paragraph (3) for the operation of such project. Payments under any
such loan shall be disbursed on an annual basis, as determined (in
accordance with paragraph (3)) on the basis of the amount of biomass
energy produced and sold by that project during the 12-month period
involved and the type and cost of fuel displaced by the biomass energy
sold.
(2)(A) In the case of any support loan under this section for an
existing municipal waste energy project --
(i) disbursements under such loan may not be made for more than 5
consecutive 12-month periods;
(ii) the amount of the disbursement for the second and any subsequent
12-month period for which disbursements are to be made under the support
loan shall be reduced by an amount determined by multiplying the amount
calculated under paragraph (3) by a factor determined by dividing the
number of 12-month periods for which disbursements are made under the
support loan into the number of such periods which have elapsed;
(iii) commencing at the end of the last of such 12-month periods, the
support loan shall be repayable over a period equal to the then
remaining useful life of the project (as determined by the Secretary) or
10 years, whichever is shorter; and
(iv) commencing at the end of such last 12-month period, such loan
shall bear interest at a rate determined by the Secretary of Energy
(taking into consideration the current average market yield on
outstanding marketable obligations of the United States with remaining
periods to maturity comparable to the average maturities of such loans)
plus not to exceed one per centum, as determined by the Secretary of
Energy, and adjusted to the nearest one-eighth of one per centum.
(3) The amount of the loan payment to be disbursed under this
subsection for any year with respect to each type of biomass energy
produced and sold by an existing municipal waste energy project shall be
equal to --
(A)(i) the standard support price reduced by the cost of the fuel
displaced by the biomass energy sold, or (ii) $2.00, whichever is lower,
multiplied by
(B) the amount of such biomass energy sold (in millions of Btu's).
(b) Authority of Secretary of Energy with respect to loans for new
projects; disbursements, etc.
(1) In the case of any new municipal waste energy project which
produces and sells biomass energy, the Secretary of Energy may commit to
make, and make, a price support loan in amounts determined in accordance
with the provisions of subsection (a) of this section, except as
provided in paragraph (2).
(2) In the case of any loan under this subsection for a new municipal
waste energy project --
(A) disbursements under such loan may not be made for more than 7
consecutive 12-month periods (with reductions as provided in subsection
(a)(2)(A)(ii)) of this section;
(B) such loan shall bear interest at a rate not in excess of the rate
prescribed under subsection (a) of this section; and
(C) the principal of or interest on such loan shall, in accordance
with the support loan agreement, be repayable, commencing at the end of
the last 12-month period covered by the support loan, over a period not
in excess of the period equal to the then remaining useful life of the
project (as determined by the Secretary) or 15 years, whichever is
shorter.
(c) Authority of Secretary of Energy with respect to guarantees for
new projects; pricing determinations, etc.
(1) In the case of any new municipal waste energy project which
produces and sells biomass energy, the Secretary of Energy may commit to
make, and make, a price guarantee for the operation of such project
which guarantees that the price the owner or operator will receive for
all or part of the production from that project shall not be less than a
specified sales price determined as of the date of execution of the
guarantee agreement.
(2)(A) No price guarantee under this section may be based upon a
cost-plus arrangement, or variant thereof, which guarantees a profit to
the owner or operator involved.
(B) The use of a cost-of-service pricing mechanism by a person
pursuant to law, or by a regulatory body establishing rates for a
regulated person, shall not be deemed to be a cost-plus arrangement, or
variant thereof, for purposes of subparagraph (A).
(3) In the case of any price guarantee under this subsection for a
new municipal waste energy project --
(A) disbursements under such guarantee may not be made for more than
7 consecutive 12-month periods; and
(B) amounts paid under this subsection may be required to be repaid
to the Secretary of Energy under such terms and conditions as the
Secretary may prescribe, including interest at a rate not in excess of
the rate prescribed under subsection (a) of this section.
(d) Definitions; sale price of retained fuel; rules relating to
fuel displacement
For purposes of this section --
(1) The term ''new municipal waste energy project'' means any
municipal waste energy project which --
(A) is initially placed in service after June 30, 1980; or
(B) if initially placed in service before June 30, 1980, has an
increased capacity by reason of additional construction, and as such is
placed in service after such date.
(2) The term ''existing municipal waste energy project'' means any
municipal waste energy project which is not a new municipal waste
project.
(3) The term ''placed in service'' means operated at more than 50
percent of the estimated operational capacity.
(4)(A) Except as provided in subparagraphs (B) and (C), the term
''standard support price'' means the average price (per million Btu's)
for No. 6 fuel oil imported into the United States on June 30, 1980, as
determined, by rule, by the Secretary of Energy not later than 90 days
after June 30, 1980.
(B) In any case in which the fuel displaced is No. 6 fuel oil or any
higher grade of petroleum (as determined by the Secretary of Energy),
the term ''standard support price'' means 125 per centum of the price
determined by rule under subparagraph (A).
(C) In any case in which biomass energy produced and sold by a
project is steam or electricity, the term ''standard support price''
means the price determined by rule under subparagraph (A), subject to
such adjustments as the Secretary of Energy may authorize by rule.
(5) The term ''cost of the fuel displaced'' means the cost of the
fuel (per million Btu's) which the purchaser of biomass energy would
have purchased if the biomass energy had not been available for sale to
that purchaser.
(6) Any biomass energy produced by a municipal waste energy project
which may be retained for use by the owner or operator of such project
shall be considered to be sold at such price as the Secretary of Energy
determines.
(7) Not later than 90 days after June 30, 1980, the Secretary of
Energy shall prescribe, by rule, the manner of determining the fuel
displaced by the sale of any biomass energy, and the price of the fuel
displaced.
(Pub. L. 96-294, title II, 234, June 30, 1980, 94 Stat. 699.)
42 USC -- 8835. General requirements regarding financial assistance
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Priorities, terms, availability, etc.
(1) Priority for financial assistance under the provisions of
sections 8832, 8833, and 8834 of this title and the most favorable
financial terms available, shall be provided for any municipal waste
energy project that will --
(A) produce a liquid fuel from municipal waste; or
(B) will displace petroleum or natural gas as a fuel.
(2)(A) With respect to projects producing biomass energy other than
biomass fuel, financial assistance under the provisions of sections
8832, 8833, and 8834 of this title shall be available only if the
Secretary of Energy finds that the project does not use petroleum or
natural gas except for flame stabilization or start-up.
(B) With respect to projects producing biomass fuel, financial
assistance under such provisions shall be available to such project only
if the Secretary of Energy finds that the Btu content of the biomass
fuel produced substantially exceeds the Btu content of any petroleum or
natural gas used in the project to produce the biomass fuel.
(3) Financial assistance may not be provided under section 8832,
8833, or 8834 of this title unless the Secretary of Energy finds that
necessary municipal waste feedstocks are available and it is reasonable
to expect they will continue to be available for the expected economic
life of the project.
(4) In providing financial assistance under section 8832, 8833, or
8834 of this title, the Secretary of Energy shall give due consideration
to promoting competition.
(5) In determining the amount of financial assistance for any
municipal waste energy project which will yield byproducts in addition
to biomass energy, the Secretary shall consider the value of such
byproducts and the costs attributable to their production.
(6) The Secretary of Energy shall not provide financial assistance
under section 8832, 8833, or 8834 of this title for any municipal waste
energy unless the Secretary determines --
(A) the project will be technically and economically viable;
(B) the financial assistance provided encourages and supplements, but
does not compete with nor supplant, any private capital investment which
otherwise would be available to the proposed municipal waste energy
project on reasonable terms and conditions which would permit such
project to be undertaken;
(C) assurances are provided that the project will not use, in any
substantial quantities, waste paper which would otherwise be recycled
for a use other than as a fuel and will not substantially compete with
facilities in existence on the date of the financial assistance which
are engaged in the separation or recovery of reuseable materials from
municipal waste; and
(D) that the amount of financial assistance provided for the project
is not greater than is necessary to achieve the purposes of this
chapter.
(b) Terms, conditions, maturity, etc.
Financial assistance may not be provided under section 8832, 8833, or
8834 of this title unless the Secretary of Energy determines that --
(1) the terms, conditions, maturity, security and schedule and
amounts of repayments with respect to such assistance are reasonable and
meet such standards as the Secretary determines are sufficient to
protect the financial interests of the United States; and
(2) the person receiving such financial assistance will bear a
reasonable degree of risk with respect to the project.
(c) Application requirements
(1) No financial assistance may be provided to any person under
section 8832, 8833, or 8834 of this title unless an application therefor
--
(A) has been submitted to the Secretary of Energy by such person in
such form and under such procedures as the Secretary shall prescribe,
consistent with the requirements of this subchapter, and
(B) has been approved by the Secretary in accordance with such
procedures.
(2) Each such application shall include information regarding the
construction costs of the municipal waste energy project involved (if
appropriate), and estimates of operating costs and income relating to
that project (including the sale of any byproducts from that project).
In addition, each applicant shall provide --
(A) access at reasonable times to such other information, and
(B) such assurances,
as the Secretary of Energy may require.
(d) Reports and recordkeeping
(1) Every person receiving financial assistance under section 8832,
8833, or 8834 of this title shall, as a condition precedent thereto,
consent to such examinations and reports thereon regarding the municipal
waste energy project involved as the Secretary of Energy may require.
(2) With respect to each municipal waste energy project for which
financial assistance is provided under section 8832, 8833, or 8834 of
this title, the Secretary shall --
(A) require from the recipient of financial assistance such reports
and records relating to that project as the Secretary deems necessary;
(B) prescribe the manner in which such recipient shall keep such
records; and
(C) have access to such records at reasonable times for the purpose
of ensuring compliance with the terms and conditions upon which
financial assistance is provided.
(e) Deposit of amounts received
All amounts received by the Secretary of Energy as fees, interest,
repayment of principal, and any other moneys received by the Secretary
from operations under section 8832, 8833, or 8834 of this title shall be
deposited in the general fund of /1/ Treasury of the United States as
miscellaneous receipts.
(f) Contracts and instruments backed by full faith and credit of
United States
All contracts and instruments of the Secretary of Energy to provide,
or providing, for financial assistance shall be general obligations of
the United States backed by its full faith and credit.
(g) Contestability of contracts
Subject to the conditions of any contract for financial assistance,
such contract shall be incontestable in the hands of the holder, except
as to fraud or material misrepresentation on the part of the holder.
(h) Eligibility of debt obligations for purchase, sale, or issuance
to Federal Financing Bank or any Federal agency
Notwithstanding the provisions of the Federal Financing Bank Act of
1973 (12 U.S.C. 2281 et seq.) or any other provision of law (except as
may be specifically provided by reference to this subsection in any Act
enacted after June 30, 1980), no debt obligation which is made or
committed to be made, or which is guaranteed or committed to be
guaranteed by the Secretary of Energy under section 8832, 8833, or 8834
of this title shall be eligible for purchase by, or commitment to
purchase by, or sale or issuance to, the Federal Financing Bank or any
Federal agency.
(Pub. L. 96-294, title II, 235, June 30, 1980, 94 Stat. 701.)
The Federal Financing Bank Act of 1973, referred to in subsec. (h),
is Pub. L. 93-224, Dec. 29, 1973, 87 Stat. 937, as amended, which is
classified generally to chapter 24 ( 2281 et seq.) of Title 12, Banks
and Banking. For complete classification of this Act to the Code, see
Short Title note set out under section 2281 of Title 12 and Tables.
/1/ So in original. Probably should be ''of the''.
42 USC -- 8836. Financial assistance program administration
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary of Energy shall establish procedures and take such
other actions as may be necessary regarding the solicitation, review,
and evaluation of applications, and awarding of financial assistance
under section 8832, 8833, or 8834 of this title as may be necessary to
carry out the plan established under section 8831 of this title.
(Pub. L. 96-294, title II, 236, June 30, 1980, 94 Stat. 703.)
42 USC -- 8837. Commercialization demonstration program pursuant to
Federal nonnuclear energy research and development
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment and conduct pursuant to other Federal statutory
authorities; required undertakings subsequent to consultations
(1) The Secretary of Energy shall establish and conduct, pursuant to
the authorities contained in the Federal Nonnuclear Energy Research and
Development Act of 1974 (42 U.S.C. 5901 et seq.), an accelerated
research, development, and demonstration program for promoting the
commercial viability of processes for the recovery of energy from
municipal wastes.
(2) The provisions of subsections (d), (m), and (x)(2) of section 19
of such Act (42 U.S.C. 5919(d), (m), and (x)(2)) shall not apply with
respect to the program established under this section.
(3) As part of the program established under this section, the
Secretary, after consulting with the Administrator of the Environmental
Protection Agency and the Secretary of Commerce, shall undertake --
(A) the research, development, and demonstration of technologies to
recover energy from municipal wastes;
(B) the development and application of new municipal waste-to-energy
recovery technologies;
(C) the assessment, evaluation, demonstration, and improvement of the
performance of existing municipal waste-to-energy recovery technologies
with respect to capital costs, operating and maintenance costs, total
project financing, recovery efficiency, and the quality of recovered
energy and energy intensive materials;
(D) the evaluation of municipal waste energy projects for the purpose
of developing a base of engineering data that can be used in the design
of future municipal waste energy projects to recover energy from
municipal wastes; and
(E) research studies on the size and other significant
characteristics of potential markets for municipal waste-to-energy
recovery technologies, and recovered energy, and energy intensive
materials.
(b) Financial assistance
Under such program, the Secretary of Energy may provide financial
assistance consisting of price supports, loans, and loan guarantees, for
the cost of planning, designing, constructing, operating, and
maintaining demonstration facilities, and, in the case of existing
facilities, modifications of such facilities solely for demonstration
purposes, for the conversion of municipal wastes into energy or the
recovery of materials.
(c) Priority for funding
Priority for funding of activities under subsection (a) of this
section and financial assistance under subsection (b) of this section
shall be provided for any activity or project for the demonstration of
technologies for the production of liquid fuels or biomass energy which
substitute for petroleum or natural gas.
(d) Obligation and expenditure of funds
The Secretary of Energy may not obligate or expend any funds
authorized under this chapter in carrying out subsection (b) of this
section until the plan required under section 8831(a) of this title has
been prepared and submitted to the Congress.
(e) Deposit of moneys received
All amounts received by the Secretary of Energy as fees, interest,
repayment of principal, and any other moneys received by the Secretary
from operations under this section shall be deposited in the general
fund of the Treasury of the United States as miscellaneous receipts.
(Pub. L. 96-294, title II, 237, June 30, 1980, 94 Stat. 703.)
The Federal Nonnuclear Energy Research and Development Act of 1974,
referred to in subsec. (a)(1), is Pub. L. 93-577, Dec. 31, 1974, 88
Stat. 1878, as amended, which is classified generally to chapter 74 (
5901 et seq.) of this title. For complete classification of this Act to
the Code, see Short Title note set out under section 5901 of this title
and Tables.
42 USC -- 8838. Jurisdiction of Department of Energy and Environmental
Protection Agency
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The provisions of section 5920(c) of this title, relating to the
responsibilities of the Environmental Protection Agency and the
Department of Energy, shall apply with respect to actions under this
subchapter to the same extent and in the same manner as such provisions
apply to actions under section 5920 of this title.
(Pub. L. 96-294, title II, 238, June 30, 1980, 94 Stat. 704.)
42 USC -- 8839. Office of Energy from Municipal Waste
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment in Department of Energy; appointment of Director
There is hereby established within the Department of Energy an Office
of Energy from Municipal Waste (hereinafter in this section referred to
as the ''Office'') to be headed by a Director, who shall be appointed by
the Secretary of Energy.
(b) Functions
It shall be the function of the Office to perform --
(1) the research, development, demonstration, and commercialization
activities authorized under this subchapter (including those authorized
under section 8837 of this title), and
(2) such other duties relating to the production of energy from
municipal waste as the Secretary of Energy may assign to the Office.
(c) Consultations respecting implementation of functions
In carrying out functions tranferred /1/ or assigned to the Office,
the Secretary of Energy shall consult with the Administrator of the
Environmental Protection Agency, the Secretary of Commerce, and the
heads of such other Federal agencies, as appropriate.
(d) Transfer of related functions and personnel from Department of
Energy
The Secretary shall provide for the transfer to the Office of the
functions relating to, and personnel of the Department who are
responsible for the administration of, programs in existence on June 30,
1980, which relate to the research, development, demonstration, and
commercialization of technologies for the recovery of energy from
municipal waste.
(Pub. L. 96-294, title II, 239, June 30, 1980, 94 Stat. 704.)
/1/ So in original. Probably should be ''transferred''.
42 USC -- 8840. Termination of authorities
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
No financial assistance may be committed to or made under this
subchapter after September 30, 1984. This section shall not be
construed to affect the authority of the Secretary of Energy to spend
funds after such date pursuant to any award of financial assistance made
on or before that date.
(Pub. L. 96-294, title II, 240, June 30, 1980, 94 Stat. 705.)
42 USC -- SUBCHAPTER III -- RURAL, AGRICULTURAL, AND FORESTRY BIOMASS
ENERGY
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8851. Model demonstration biomass energy facilities;
establishment, public inspection, etc.; authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Secretary of Agriculture shall establish not more than ten
model demonstration biomass energy facilities for purposes of exhibiting
the most advanced technology available for producing biomass energy.
Such facilities and information regarding the operation of such
facilities shall be available for public inspection, and, to the extent
practicable, such facilities shall be established in various regions in
the United States. Such facilities may be established in cooperation
with appropriate departments or agencies of the States, or appropriate
in various regions in the United States. Such facilities may be
established in cooperation with appropriate departments or agencies of
the States, or appropriate departments, agencies, or other
instrumentalities of the United States.
(b) For purposes of carrying out subsection (a) of this section,
there is authorized to be appropriated $5,000,000 for each of the fiscal
years 1981, 1982, 1983, and 1984.
(Pub. L. 96-294, title II, 251, June 30, 1980, 94 Stat. 705.)
42 USC -- 8852. Coordination of research and extension activities;
consultative requirements
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Secretary of Agriculture shall coordinate the applied
research and extension programs conducted under this subchapter and
under the amendments made by subtitle C of title II of this Act to
section 1419 (7 U.S.C. 3154) and subtitle B of the National Agricultural
Research, Extension, and Teaching Policy Act of 1977 (7 U.S.C. 3129),
/1/ section 1 of the Bankhead-Jones Act (7 U.S.C. 427), section 3 of
the Forest and Rangeland Renewable Resources Research Act of 1978 (16
U.S.C. 1642), and sections 1 and 2 of the Smith-Lever Act (7 U.S.C. 341,
342) with the programs of the Department of Energy.
(b) In carrying out this subchapter and the amendments made by
subtitle C of title II of this Act, the Secretary of Agriculture shall
consult on a continuing basis with --
(1) the Subcommittee on Food, Agricultural, and Forestry Research of
the Federal Coordinating Council for Science, Engineering, and
Technology;
(2) the Joint Council on Food and Agricultural Sciences; and
(3) the National Agricultural Research and Extension Users Advisory
Board;
for the purpose of coordinating research and extension activities.
(Pub. L. 96-294, title II, 257, June 30, 1980, 94 Stat. 708; Pub.
L. 97-98, title XIV, 1406(c), Dec. 22, 1981, 95 Stat. 1299.)
This subchapter and subtitle C of title II of this Act, referred to
in text, were in the original ''this subtitle'', meaning subtitle C (
251-262) of title II of Pub. L. 96-294, June 30, 1980, 94 Stat. 705,
as amended, which enacted this subchapter and sections 1435 and 3129 of
Title 7, Agriculture, and amended sections 341, 342, 427, and 3154 of
Title 7 and sections 590h and 1642 of Title 16, Conservation. For
complete classification of subtitle C to the Code, see Tables.
7 U.S.C. 3129, referred to in subsec. (a), was repealed by Pub. L.
101-624, title XVI, 1601(f)(1)(C), Nov. 28, 1990, 104 Stat. 3704.
1981 -- Subsec. (b)(1). Pub. L. 97-98 substituted ''Subcommittee on
Food, Agricultural, and Forestry Research'' for ''Subcommittee on Food
and Renewable Resources''.
Amendment by Pub. L. 97-98 effective Dec. 22, 1981, see section
1801 of Pub. L. 97-98, set out as an Effective Date note under section
4301 of Title 7, Agriculture.
/1/ See References in Text note below.
42 USC -- 8853. Lending for energy production and conservation
projects by production credit associations, Federal land banks, and
banks for cooperatives
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Farm Credit Administration shall encourage production credit
associations, Federal land banks, and banks for cooperatives to use
existing authorities to make loans to eligible persons for commercially
feasible biomass energy projects.
(Pub. L. 96-294, title II, 258, June 30, 1980, 94 Stat. 709.)
42 USC -- 8854. Utilization of National Forest System in wood energy
development projects
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary of Agriculture may make available the timber resources
of the National Forest System, in accordance with appropriate timber
appraisal and sale procedures, for use by biomass energy projects.
(Pub. L. 96-294, title II, 261, June 30, 1980, 94 Stat. 710.)
42 USC -- 8855. Forest Service leases and permits
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
It is the intent of the Congress that the Secretary of Agriculture
shall process applications for leases of National Forest System lands
and for permits to explore, drill, and develop resources on land leased
from the Forest Service, notwithstanding the current status of any plan
being prepared under section 1604 of title 16.
(Pub. L. 96-294, title II, 262, June 30, 1980, 94 Stat. 710.)
42 USC -- SUBCHAPTER IV -- MISCELLANEOUS BIOMASS PROVISIONS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8871. Use of gasohol in Federal motor vehicles
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Exercise of President's authority pursuant to executive order
respecting use
The President shall, by executive order, require that motor vehicles
which are owned or leased by Federal agencies and are capable of
operating on gasohol shall use gasohol where available at reasonable
prices and in reasonable quantities.
(b) Exceptions
The President may provide for exceptions to the requirement of
subsection (a) of this section where necessary, including to protect the
national security.
(c) Gasohol requirements
Such executive order shall specify the alcohol-gasoline mixture or
mixtures which shall constitute ''gasohol'' for purposes of such order,
as well as specifications for its use.
(Pub. L. 96-294, title II, 271, June 30, 1980, 94 Stat. 710.)
Pub. L. 102-190, div. A, title VIII, 841(c), (d), Dec. 5, 1991,
105 Stat. 1449, provided that:
''(c) Report on Exemptions. -- The Secretary of Defense shall review
all exemptions granted for the Department of Defense, and the
Administrator of the General Services Administration shall review all
exemptions granted for Federal agencies and departments, to the
requirements of section 2398 of title 10, United States Code, and
section 271 of the Energy Security Act (Public Law 96-294; 42 U.S.C.
8871) and shall terminate any exemption that the Secretary or the
Administrator determines is no longer appropriate. Not later than 90
days after the date of the enactment of this Act (Dec. 5, 1991), the
Secretary and the Administrator shall submit jointly to Congress a
report on the results of the review, with a justification for the
exemptions that remain in effect under those provisions of law.
''(d) Sense of Congress. -- It is the sense of Congress that whenever
any motor vehicle capable of operating on gasoline or alcohol-gasoline
blends that is owned or operated by the Department of Defense or any
other department or agency of the Federal Government is refueled, it
shall be refueled with an alcohol-gasoline blend containing at least 10
percent domestically produced alcohol if available along the normal
travel route of the vehicle at the same or lower price than unleaded
gasoline.''
Ex. Ord. No. 12261, Jan. 5, 1981, 46 F.R. 2023, provided:
By the authority vested in me as President of the United States of
America by Section 271 of the Energy Security Act (94 Stat. 710; Public
Law 96-294; 42 U.S.C. 8871), in order to require Federal agencies which
own or lease motor vehicles to use gasohol in those vehicles which are
capable of operating on gasohol where it is available at reasonable
prices and in reasonable quantities, it is hereby ordered as follows:
1-101. In procurement actions for unleaded gasoline motor fuel,
Federal agencies shall, whenever feasible, specify that gasohol is an
acceptable substitute motor fuel. In such procurements there shall be a
preference for the purchase of gasohol.
1-102. Agencies may procure the components of gasohol and do their
own blending.
1-103. In determining the feasibility of specifying gasohol as a
substitute motor fuel in procurement actions for unleaded gasoline,
agencies shall include in their considerations such factors as the
availability of storage facilities for bulk purchases and the number of
vehicles capable of operating on gasohol.
1-104. Agencies shall designate those vehicles which are capable of
using gasohol, consistent with overall agency needs and sound vehicle
management practices. Agencies shall specify the conditions governing
the use of gasohol, including when gasohol shall be purchased from
normal retail outlets by vehicle operators.
1-105. The use of gasohol by the Department of Defense pursuant to
this Order shall be in accordance with Section 815 of the Department of
Defense Authorization Act, 1980 (93 Stat. 817; Public Law 96-107; 10
U.S.C. 2388 note) which provides for the use of gasohol to the maximum
extent feasible and consistent with overall defense needs and sound
vehicle management practices, as determined by the Secretary of Defense.
1-106. Vehicles used in experimental programs to test fuels other
than gasohol are excepted from this Order.
1-107. The authority vested in the President by Section 271(b) of the
Energy Security Act (42 U.S.C. 8871(b)) is delegated to the Secretary of
Defense with respect to gasohol use by the Department of Defense, and
delegated to the Administrator of General Services with respect to
gasohol use by other agencies.
1-108. Federal agencies shall make available to the Department of
Energy, upon request, relevant data or information they possess
concerning agency gasohol usage.
1-109. For purposes of this Order ''Gasohol'' means a motor fuel
which has an octane rating of not less than 87 (R+M)/2 and which
consists of approximately 90 percent unleaded gasoline and approximately
10 percent anhydrous (199 proof or above) ethyl alcohol derived from
biomass, as defined in Section 203(2)(A) of the Energy Security Act (94
Stat. 683; Public Law 96-294; 42 U.S.C. 8802(2)(A)).
1-110. (a) The Secretary of Defense with respect to gasohol use by
the Department of Defense, and the Administrator of General Services
with respect to gasohol use by other agencies, shall issue such
guidelines for the implementation of this Order as they deem
appropriate.
(b) Such guidelines shall provide for a determination of reasonable
prices and reasonable quantities based on the local prevailing price of
unleaded gasolines, the octane requirements for vehicles in the Federal
fleet, local market availability of gasohol or its components, and other
such factors, as may be appropriate.
Jimmy Carter.
42 USC -- CHAPTER 97 -- ACID PRECIPITATION PROGRAM AND CARBON DIOXIDE
STUDY
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
8901. Introductory provisions.
(a) Congressional statement of findings and purpose.
(b) Congressional declaration of purpose.
(c) ''Acid precipitation'' defined.
8902. Comprehensive ten-year program.
(a) Implementation by Acid Precipitation Task Force; membership,
etc., of Task Force.
(b) Research management consortium; membership, responsibilities,
etc.
(c) Director of research program.
8903. Comprehensive research plan.
(a) Preparation by Task Force for ten-year program; purposes.
(b) Scope.
(c) Procedures applicable.
(d) Convening of Task Force.
(e) Submission of annual report to President and Congress by Task
Force.
(f) Applicability of other statutory provisions to Task Force or
plan.
8904. Implementation of comprehensive plan; new or existing
regulatory authorities, etc., not granted or modified.
8905. Authorization of appropriations.
8906. Updated data base on acid content in precipitation; new
monitoring site not required.
8911. Comprehensive study of projected impact on atmospheric levels
of fossil fuel combustion, etc.
(a) Implementing agreement between Director of Office of Science and
Technology and National Academy of Sciences; contents; conduct;
status report by President respecting negotiations of Office.
(b) Final report by Office and Academy; contents; prior clearance
or review of work of Academy; recommendations.
(c) Information from other Federal agencies and departments.
(d) Separate assessment by Office of interagency implementation
requirements.
8912. Authorization of appropriations.
42 USC -- SUBCHAPTER I -- ACID PRECIPITATION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8901. Introductory provisions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Congressional statement of findings and purpose
The Congress finds and declares that acid precipitation resulting
from other than natural sources --
(1) could contribute to the increasing pollution of natural and
man-made water systems;
(2) could adversely affect agricultural and forest crops;
(3) could adversely affect fish and wildlife and natural ecosystems
generally;
(4) could contribute to corrosion of metals, wood, paint, and masonry
used in construction and ornamentation of buildings and public
monuments;
(5) could adversely affect public health and welfare; and
(6) could affect areas distant from sources and thus involve issues
of national and international policy.
(b) Congressional declaration of purpose
The Congress declares that it is the purpose of this subchapter --
(1) to identify the causes and sources of acid precipitation;
(2) to evaluate the environmental, social, and economic effects of
acid precipitation; and
(3) based on the results of the research program established by this
subchapter and to the extent consistent with existing law, to take
action to the extent necessary and practicable (A) to limit or eliminate
the identified emissions which are sources of acid precipitation, and
(B) to remedy or otherwise ameliorate the harmful effects which may
result from acid precipitation.
(c) ''Acid precipitation'' defined
For purposes of this subchapter the term ''acid precipitation'' means
the wet or dry deposition from the atmosphere of acid chemical
compounds.
(Pub. L. 96-294, title VII, 702, June 30, 1980, 94 Stat. 770.)
Section 701 of title VII Pub. L. 96-294 provided that: ''This title
(enacting this chapter) may be cited as the 'Acid Precipitation Act of
1980'.''
42 USC -- 8902. Comprehensive ten-year program
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Implementation by Acid Precipitation Task Force; membership,
etc., of Task Force
There is hereby established a comprehensive ten-year program to carry
out the provisions of this subchapter; and to implement this program
there shall be formed an Acid Precipitation Task Force (hereafter in
this subchapter referred to as the ''Task Force''), of which the
Secretary of Agriculture, the Administrator of the Environmental
Protection Agency, and the Administrator of the National Oceanic and
Atmospheric Administration shall be joint chairmen. The remaining
membership of the Task Force shall consist of --
(1) one representative each from the Department of the Interior, the
Department of Health and Human Services, the Department of Commerce, the
Department of Energy, the Department of State, the National Aeronautics
and Space Administration, the Council on Environmental Quality, the
National Science Foundation, and the Tennessee Valley Authority;
(2) the director of the Argonne National Laboratory, the director of
the Brookhaven National Laboratory, the director of the Oak Ridge
National Laboratory, and the director of the Pacific Northwest National
Laboratory; and
(3) four additional members to be appointed by the President.
(b) Research management consortium; membership, responsibilities,
etc.
The four National Laboratories (referred to in subsection (a)(2) of
this section) shall constitute a research management consortium having
the responsibilities described in section 8903(b)(13) of this title as
well as the general responsibilities required by their representation on
the Task Force. In carrying out these responsibilities the consortium
shall report to, and act pursuant to direction from, the joint chairmen
of the Task Force.
(c) Director of research program
The Administrator of the National Oceanic and Atmospheric
Administration shall serve as the director of the research program
established by this subchapter.
(Pub. L. 96-294, title VII, 703, June 30, 1980, 94 Stat. 771.)
42 USC -- 8903. Comprehensive research plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Preparation by Task Force for ten-year program; purposes
The Task Force shall prepare a comprehensive research plan for the
ten-year program (hereafter in this subchapter referred to as the
''comprehensive plan''), setting forth a coordinated program (1) to
identify the causes and effects of acid precipitation and (2) to
identify actions to limit or ameliorate the harmful effects of acid
precipitation.
(b) Scope
The comprehensive plan shall include programs for --
(1) identifying the sources of atmospheric emissions contributing to
acid precipitation;
(2) establishing and operating a nationwide long-term monitoring
network to detect and measure levels of acid precipitation;
(3) research in atmospheric physics and chemistry to facilitate
understanding of the processes by which atmospheric emissions are
transformed into acid precipitation;
(4) development and application of atmospheric transport models to
enable prediction of long-range transport of substances causing acid
precipitation;
(5) defining geographic areas of impact through deposition
monitoring, identification of sensitive areas, and identification of
areas at risk;
(6) broadening of impact data bases through collection of existing
data on water and soil chemistry and through temporal trend analysis;
(7) development of dose-response functions with respect to soils,
soil organisms, aquatic and amphibious organisms, crop plants, and
forest plants;
(8) establishing and carrying out system studies with respect to
plant physiology, aquatic ecosystems, soil chemistry systems, soil
microbial systems, and forest ecosystems;
(9) economic assessments of (A) the environmental impacts caused by
acid precipitation on crops, forests, fisheries, and recreational and
aesthetic resources and structures, and (B) alternative technologies to
remedy or otherwise ameliorate the harmful effects which may result from
acid precipitation;
(10) documenting all current Federal activities related to research
on acid precipitation and ensuring that such activities are coordinated
in ways that prevent needless duplication and waste of financial and
technical resources;
(11) effecting cooperation in acid precipitation research and
development programs, ongoing and planned, with the affected and
contributing States and with other sovereign nations having a
commonality of interest;
(12) subject to subsection (f)(1) of this section, management by the
Task Force of financial resources committed to Federal acid
precipitation research and development;
(13) subject to subsection (f)(2) of this section, management of the
technical aspects of Federal acid precipitation research and development
programs, including but not limited to (A) the planning and management
of research and development programs and projects, (B) the selection of
contractors and grantees to carry out such programs and projects, and
(C) the establishment of peer review procedures to assure the quality of
research and development programs and their products; and
(14) analyzing the information available regarding acid precipitation
in order to formulate and present periodic recommendations to the
Congress and the appropriate agencies about actions to be taken by these
bodies to alleviate acid precipitation and its effects.
(c) Procedures applicable
The comprehensive plan --
(1) shall be submitted in draft form to the Congress, and for public
review, within six months after June 30, 1980;
(2) shall be available for public comment for a period of sixty days
after its submission in draft form under paragraph (1);
(3) shall be submitted in final form, incorporating such needed
revisions as arise from comments received during the review period, to
the President and the Congress within forty-five days after the close of
the period allowed for comments on the draft comprehensive plan under
paragraph (2); and
(4) shall constitute the basis on which requests for authorizations
and appropriations are to be made for the nine fiscal years following
the fiscal year in which the comprehensive plan is submitted in final
form under paragraph (3).
(d) Convening of Task Force
The Task Force shall convene as necessary, but no less than twice
during each fiscal year of the ten-year period covered by the
comprehensive plan.
(e) Submission of annual report to President and Congress by Task
Force
The Task Force shall submit to the President and the Congress by
January 15 of each year an annual report which shall detail the progress
of the research program under this subchapter and which shall contain
such recommendations as are developed under subsection (b)(14) of this
section.
(f) Applicability of other statutory provisions to Task Force or plan
(1) Subsection (b)(12) of this section shall not be construed as
modifying, or as authorizing the Task Force or the comprehensive plan to
modify, any provision of an appropriation Act (or any other provision of
law relating to the use of appropriated funds) which specifies (A) the
department or agency to which funds are appropriated, or (B) the
obligations of such department or agency with respect to the use of such
funds.
(2) Subsection (b)(13) of this section shall not be construed as
modifying, or as authorizing the Task Force or the comprehensive plan to
modify, any provision of law (relating to or involving a department or
agency) which specifies (A) procurement practices for the selection,
award, or management of contracts or grants by such department or
agency, or (B) program activities, limitations, obligations, or
responsibilities of such department or agency.
(Pub. L. 96-294, title VII, 704, June 30, 1980, 94 Stat. 771.)
42 USC -- 8904. Implementation of comprehensive plan; new or existing
regulatory authorities, etc., not granted or modified
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The comprehensive plan shall be carried out during the nine
fiscal years following the fiscal year in which the comprehensive plan
is submitted in its final form under section 8903(c)(3) of this title;
and --
(1) shall be carried out in accord with, and meet the program
objectives specified in, paragraphs (1) through (11) of section 8903(b)
of this title;
(2) shall be managed in accord with paragraphs (12) through (14) of
such section; and
(3) shall be funded by annual appropriations, subject to annual
authorizations which shall be made for each fiscal year of the program
(as provided in section 8905 of this title) after the submission of the
Task Force progress report which under section 8903(e) of this title is
required to be submitted by January 15 of the calendar year in which
such fiscal year begins.
(b) Nothing in this subchapter shall be deemed to grant any new
regulatory authority or to limit, expand, or otherwise modify any
regulatory authority under existing law, or to establish new criteria,
standards, or requirements for regulation under existing law.
(Pub. L. 96-294, title VII, 705, June 30, 1980, 94 Stat. 773.)
42 USC -- 8905. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) For the purpose of establishing the Task Force and developing the
comprehensive plan under section 8903 of this title there is authorized
to be appropriated to the National Oceanic and Atmospheric
Administration for fiscal year 1981 the sum of $5,000,000 to remain
available until expended.
(b) Authorizations of appropriations for the nine fiscal years
following the fiscal year in which the comprehensive plan is submitted
in final form under section 8903(c)(3) of this title, for purposes of
carrying out the comprehensive ten-year program established by section
8902(a) of this title and implementing the comprehensive plan under
sections 8903 and 8904 of this title, shall be provided on an annual
basis in authorization Acts hereafter enacted; but the total sum of
dollars authorized for such purposes for such nine fiscal years shall
not exceed $45,000,000 except as may be specifically provided by
reference to this paragraph in the authorization Acts involved.
(Pub. L. 96-294, title VII, 706, June 30, 1980, 94 Stat. 773.)
42 USC -- 8906. Updated data base on acid content in precipitation;
new monitoring site not required
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a)(1) The National Weather Service of the National Oceanic and
Atmospheric Administration shall maintain an updated data base
describing the acid content in precipitation in the United States, using
information from Federal acid precipitation monitoring sites.
(2) Such data shall be available to interested parties by Weather
Service Forecast Offices in the National Weather Service, or through
such other facilities or means as the Assistant Administrator for
Weather Services, National Oceanic and Atmospheric Administration, shall
direct, for those areas of the United States where and at such time as
such information is presently available, within 120 days after November
17, 1988.
(3) Where other Federal agencies collect such data in the course of
carrying out their statutory missions, the heads of those agencies and
the Administrator of the National Oceanic and Atmospheric Administration
shall arrange for the transfer of such data to the National Weather
Service.
(b) Nothing in this section shall be construed to require any Federal
agency to establish any new acid precipitation monitoring site.
(Pub. L. 100-685, title IV, 414, Nov. 17, 1988, 102 Stat. 4101.)
Section was enacted as part of the National Aeronautics and Space
Administration Authorization Act, Fiscal Year 1989, and not as part of
the Acid Precipitation Act of 1980 which comprises this chapter.
42 USC -- SUBCHAPTER II -- CARBON DIOXIDE
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 8911. Comprehensive study of projected impact on atmospheric
levels of fossil fuel combustion, etc.
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Implementing agreement between Director of Office of Science and
Technology and National Academy of Sciences; contents; conduct;
status report by President respecting negotiations of Office
(1) The Director of the Office of Science and Technology Policy shall
enter into an agreement with the National Academy of Sciences to carry
out a comprehensive study of the projected impact, on the level of
carbon dioxide in the atmosphere, of fossil fuel combustion,
coal-conversion and related synthetic fuels activities authorized in
this Act, and other sources. Such study should also include an
assessment of the economic, physical, climatic, and social effects of
such impacts. In conducting such study the Office and the Academy are
encouraged to work with domestic and foreign governmental and
non-governmental entities, and international entities, so as to develop
an international, worldwide assessment of the problems involved and to
suggest such original research on any aspect of such problems as the
Academy deems necessary.
(2) The President shall report to the Congress within six months
after June 30, 1980, regarding the status of the Office's negotiations
to implement the study required under this section.
(b) Final report by Office and Academy; contents; prior clearance
or review of work of Academy; recommendations
A report including the major findings and recommendations resulting
from the study required under this section shall be submitted to the
Congress by the Office and the Academy not later than three years after
June 30, 1980. The Academy contribution to such report shall not be
subject to any prior clearance or review, nor shall any prior clearance
or conditions be imposed on the Academy as part of the agreement made by
the Office with the Academy under this section. Such report shall in
any event include recommendations regarding --
(1) how a long-term program of domestic and international research,
monitoring, modeling, and assessment of the causes and effects of
varying levels of atmospheric carbon dioxide should be structured,
including comments by the Office on the interagency requirements of such
a program and comments by the Secretary of State on the international
agreements required to carry out such a program;
(2) how the United States can best play a role in the development of
such a long-term program on an international basis;
(3) what domestic resources should be made available to such a
program;
(4) how the ongoing United States Government carbon dioxide
assessment program should be modified so as to be of increased utility
in providing information and recommendations of the highest possible
value to government policy makers; and
(5) the need for periodic reports to the Congress in conjunction with
any long-term program the Office and the Academy may recommend under
this section.
(c) Information from other Federal agencies and departments
The Secretary of Energy, the Secretary of Commerce, the Administrator
of the Environmental Protection Agency, and the Director of the National
Science Foundation shall furnish to the Office or the Academy upon
request any information which the Office or the Academy determines to be
necessary for purposes of conducting the study required by this section.
(d) Separate assessment by Office of interagency implementation
requirements
The Office shall provide a separate assessment of the interagency
requirements to implement a comprehensive program of the type described
in the third sentence of subsection (b) of this section.
(Pub. L. 96-294, title VII, 711, June 30, 1980, 94 Stat. 774.)
This Act, referred to in subsec. (a), is Pub. L. 96-294, June 30,
1980, 94 Stat. 611, as amended, known as the Energy Security Act. For
complete classification of this Act to the Code, see Short Title note
set out under section 8801 of this title and Tables.
42 USC -- 8912. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
For the expenses of carrying out the carbon dioxide study authorized
by section 8911 of this title (as determined by the Office of Science
and Technology Policy) there are authorized to be appropriated such
sums, not exceeding $3,000,000 in the aggregate, as may be necessary.
At least 80 percent of any amounts appropriated pursuant to the
preceding sentence shall be provided to the National Academy of
Sciences.
(Pub. L. 96-294, title VII, 712, June 30, 1980, 94 Stat. 775.)
42 USC -- CHAPTER 98 -- OCEAN THERMAL ENERGY CONVERSION RESEARCH AND
DEVELOPMENT
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
9001. Congressional findings and declaration of purpose.
9002. Comprehensive program management plan.
(a) Preparation of plan.
(b) Transmittal of plan to Congress.
(c) Requisite provisions of plan.
(d) Plan modifications.
9003. Research and development.
(a) Initiation of research.
(b) Evaluations, tests, and dissemination of information, data, and
materials.
(c) Consideration of new or improved technologies.
9004. Pilot and demonstration plants.
(a) Initiation of program.
(b) Demonstration program goals.
(c) Financial assistance.
9005. Technology application.
(a) Technology application and market development plan.
(b) Transmittal of plan to Congress.
(c) Respondent proposals.
9006. Program selection criteria.
9007. Technical Panel of Energy Research Advisory Board.
(a) Establishment.
(b) Membership.
(c) Compliance with laws and regulations.
(d) Review and recommendations.
(e) Report.
(f) Submittal of report to Secretary of Energy.
(g) Cooperation by agency heads.
(h) Staff, funds, and other support from Secretary of Energy.
9008. Definitions.
9009. Authorization of appropriations.
42 USC -- 9001. Congressional findings and declaration of purpose
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) The Congress finds that --
(1) the supply of nonrenewable fuels in the United States is slowly
being depleted;
(2) alternative sources of energy must be developed;
(3) ocean thermal energy is a renewable energy resource that can make
a significant contribution to the energy needs of the United States;
(4) the technology base for ocean thermal energy conversion has
improved over the past two years, and has consequently lowered the
technical risk involved in constructing moderate-sized pilot plants with
an electrical generating capacity of about ten to forty megawatts;
(5) while the Federal ocean thermal energy conversion program has
grown in size and scope over the past several years, it is in the
national interest to accelerate efforts to commercialize ocean thermal
energy conversion by building pilot and demonstration facilities and to
begin planning for the commercial demonstration of ocean thermal energy
conversion technology;
(6) a strong and innovative domestic industry committed to the
commercialization of ocean thermal energy conversion must be
established, and many competent domestic industrial groups are already
involved in ocean thermal energy conversion research and development
activity; and
(7) consistent with the findings of the Domestic Policy Review on
Solar Energy, ocean thermal energy conversion energy can potentially
contribute at least one-tenth of quad of energy per year by the year
2000.
(b) Therefore, the purpose of this chapter is to accelerate ocean
thermal energy conversion technology development to provide a technical
base for meeting the following goals:
(1) demonstration by 1986 of at least one hundred megawatts of
electrical capacity or energy product equivalent from ocean thermal
energy conversion systems;
(2) demonstration by 1989 of at least five hundred megawatts of
electrical capacity or energy product equivalent from ocean thermal
energy conversion systems;
(3) achievement in the mid-1990's, for the gulf coast region of the
continental United States and for islands in the United States, its
possessions and its territories, an average cost of electricity or
energy product equivalent produced by installed ocean thermal energy
conversion systems that is competitive with conventional energy sources;
and
(4) establish as a national goal ten thousand megawatts of electrical
capacity or energy product equivalent from ocean thermal energy
conversion systems by the year 1999.
(Pub. L. 96-310, 2, July 17, 1980, 94 Stat. 941.)
Section 1 of Pub. L. 96-310 provided: ''That this Act (enacting
this chapter) may be cited as the 'Ocean Thermal Energy Conversion
Research, Development, and Demonstration Act'.''
42 USC -- 9002. Comprehensive program management plan
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Preparation of plan
(1) The Secretary is authorized and directed to prepare a
comprehensive program management plan for the conduct under this chapter
of research, development, and demonstration activities consistent with
the provisions of sections 9003, 9004, and 9005 of this title.
(2) In the preparation of such plan, the Secretary shall consult with
the Administrator of the National Oceanic and Atmospheric
Administration, the Administrator of the Maritime Administration, the
Administrator of the National Aeronautics and Space Administration, and
the heads of such other Federal agencies and such public and private
organizations as he deems appropriate.
(b) Transmittal of plan to Congress
The Secretary shall transmit the comprehensive program management
plan to the Committee on Science and Technology of the House of
Representatives and the Committee on Energy and Natural Resources of the
Senate within nine months after July 17, 1980.
(c) Requisite provisions of plan
The detailed description of the comprehensive plan under this section
shall include, but need not be limited to --
(1) the anticipated research, development, and demonstration
objectives to be achieved by the program;
(2) the program strategies and technology application and market
development plans, including detailed milestone goals to be achieved
during the next fiscal year for all major activities and projects;
(3) a five-year implementation schedule for program elements with
associated budget and program management resources requirements;
(4) a detailed description of the functional organization of the
program management including identification of permanent test facilities
and of a lead center responsible for technology support and project
management;
(5) the estimated relative financial contributions of the Federal
Government and non-Federal participants in the pilot and demonstration
projects;
(6) supporting research needed to solve problems which may inhibit or
limit development of ocean thermal energy conversion systems; and
(7) an analysis of the environmental, economic, and societal impacts
of ocean thermal energy conversion facilities.
(d) Plan modifications
(1) Concurrently with the submission of the President's annual budget
for each subsequent year, the Secretary shall transmit to the Congress a
detailed description of modifications which may be necessary to revise
appropriately the comprehensive plan as then in effect, setting forth
any changes in circumstances which may have occurred since the plan or
the last previous modification thereof was transmitted in accordance
with this section.
(2) Such description shall also include a detailed justification of
any such changes, a detailed description of the progress made toward
achieving the goals of this chapter, a statement on the status of
interagency cooperation in meeting such goals, any comments on and
recommendations for improvements in the comprehensive program management
plan made by the Technical Panel established under section 9007 of this
title, and any legislative or other recommendations which the Secretary
may have to help attain such goals.
(Pub. L. 96-310, 3, July 17, 1980, 94 Stat. 942.)
42 USC -- 9003. Research and development
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Initiation of research
The Secretary shall initiate research or accelerate existing research
in areas in which the lack of knowledge limits development of ocean
thermal energy conversion systems in order to achieve the purposes of
this chapter.
(b) Evaluations, tests, and dissemination of information, data, and
materials
The Secretary shall conduct evaluations, arrange for tests, and
disseminate to developers information, data, and materials necessary to
support the design efforts undertaken pursuant to section 9004 of this
title. Specific technical areas to be addressed shall include, but not
be limited to --
(1) interface requirements between the platform and cold water pipe;
(2) cold water pipe deployment techniques;
(3) heat exchangers;
(4) control system simulation;
(5) stationkeeping requirements; and
(6) energy delivery systems, such as electric cable or energy product
transport.
(c) Consideration of new or improved technologies
The Secretary shall, for the purpose of performing his
responsibilities pursuant to this chapter, solicit proposals and
evaluate any reasonable new or improved technology, a description of
which is submitted to the Secretary in writing, which could lead or
contribute to the development of ocean thermal energy conversion system
technology.
(Pub. L. 96-310, 4, July 17, 1980, 94 Stat. 943.)
42 USC -- 9004. Pilot and demonstration plants
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Initiation of program
The Secretary is authorized to initiate a program to design,
construct, and operate well instrumented ocean thermal energy conversion
facilities of sufficient size to demonstrate the technical feasibility
and potential economic feasibility of utilizing the various forms of
ocean thermal energy conversion to displace nonrenewable fuels. To
achieve the goals of this section and to facilitate development of a
strong industrial basis for the application of ocean thermal energy
conversion system technology, at least two independent parallel
demonstration projects shall be competitively selected.
(b) Demonstration program goals
The specific goals of the demonstration program shall include at a
minimum --
(1) the demonstration of ocean thermal energy conversion technical
feasibility through multiple pilot and demonstration plants with a
combined capacity of at least one hundred megawatts of electrical
capacity or energy product equivalent by the year 1986;
(2) the delivery of baseload electricity to utilities located on land
or the production of commercially attractive quantities of energy
product; and
(3) the continuous operation of each pilot and demonstration facility
for a sufficient period of time to collect and analyze system
performance and reliability data.
(c) Financial assistance
In providing any financial assistance under this section, the
Secretary shall (1) give full consideration to those projects which will
provide energy to United States offshore States, its territories, and
its possessions and (2) seek satisfactory cost-sharing arrangements when
he deems such arrangements to be appropriate.
(Pub. L. 96-310, 5, July 17, 1980, 94 Stat. 943.)
42 USC -- 9005. Technology application
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Technology application and market development plan
The Secretary shall, in consultation with the Administrator of the
National Oceanic and Atmospheric Administration, the Administrator of
the Maritime Administration, the Administrator of the National
Aeronautics and Space Administration, and the Technical Panel
established under section 9007 of this title, prepare a comprehensive
technology application and market development plan that will permit
realization of the ten-thousand-megawatt national goal by the year 1999.
Such plans shall include at a minimum --
(1) an assessment of those Government actions required to achieve a
two-hundred- to four-hundred-megawatt electrical-commercial
demonstration of ocean thermal energy conversion systems in time to have
industry meet the goal contained in section 9001(b)(2) of this title
including a listing of those financial, property, and patent right
packages most likely to lead to early commercial demonstration at
minimum cost to the Federal Government;
(2) an assessment of further Government actions required to permit
expansion of the domestic ocean thermal energy conversion industry to
meet the goal contained in section 9001(b)(3) of this title;
(3) an analysis of further Government actions necessary to aid the
industry in minimizing and removing any legal and institutional barriers
such as the designation of a lead agency; and
(4) an assessment of the necessary Government actions to assist in
eliminating economic uncertainties through financial incentives, such as
loan guarantees, price supports, or other inducements.
(b) Transmittal of plan to Congress
The Secretary shall transmit such comprehensive technology
application and market development plan to the Congress within three
years after July 17, 1980, and update the plan on an annual basis
thereafter.
(c) Respondent proposals
As part of the competitive procurement initiative for design and
construction of the pilot and demonstration projects authorized in
section 9009(c) of this title, each respondent shall include in its
proposal (1) a plan leading to a full-scale, first-of-a-kind facility
based on a proposed demonstration system; and (2) the financial and
other contributions the respondent will make toward meeting the national
goals.
(Pub. L. 96-310, 6, July 17, 1980, 94 Stat. 944.)
42 USC -- 9006. Program selection criteria
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
The Secretary shall, in fulfilling his responsibilities under this
chapter, select program activities and set priorities which are
consistent with the following criteria:
(1) realization of energy production costs for ocean thermal energy
conversion systems that are competitive with costs from conventional
energy production systems;
(2) encouragement of projects for which contributions to project
costs are forthcoming from private, industrial, utility, or governmental
entities for the purpose of sharing with the Federal Government the
costs of purchasing and installing ocean thermal energy conversion
systems;
(3) promotion of ocean thermal energy conversion facilities for
coastal areas, islands, and isolated military institutions which are
vulnerable to interruption in the fossil fuel supply;
(4) preference for and priority to persons and domestic firms whose
base of operations is in the United States as will assure that the
program under this chapter promotes the development of a United States
domestic technology for ocean thermal energy conversion; and
(5) preference for proposals for pilot and demonstration projects in
which the respondents certify their intent to become an integral part of
the industrial infrastructure necessary to meet the goals of this
chapter.
(Pub. L. 96-310, 7, July 17, 1980, 94 Stat. 944.)
42 USC -- 9007. Technical Panel of Energy Research Advisory Board
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) Establishment
A Technical Panel of the Energy Research Advisory Board shall be
established to advise the Board on the conduct of the ocean thermal
energy conversion program.
(b) Membership
(1) The Technical Panel shall be comprised of such representatives
from domestic industry, universities, Government laboratories,
financial, environmental and other organizations as the Chairman of the
Energy Research Advisory Board deems appropriate based on his assessment
of the technical and other qualifications of such representative.
(2) Members of the Technical Panel need not be members of the full
Energy Research Advisory Board.
(c) Compliance with laws and regulations
The activities of the Technical Panel shall be in compliance with any
laws and regulations guiding the activities of technical and
fact-finding groups reporting to the Energy Research Advisory Board.
(d) Review and recommendations
The Technical Panel shall review and may make recommendations on the
following items, among others:
(1) implementation and conduct of the programs established by this
chapter;
(2) definition of ocean thermal energy conversion system performance
requirements for various user applications; and
(3) economic, technological, and environmental consequences of the
deployment of ocean thermal energy conversion systems.
(e) Report
The Technical Panel shall submit to the Energy Research Advisory
Board on at least an annual basis a written report of its findings and
recommendations with regard to the program. Such report, shall include
at a minimum --
(1) a summary of the Panel's activities for the preceding year;
(2) an assessment and evaluation of the status of the programs
mandated by this chapter; and
(3) comments on and recommendations for improvements in the
comprehensive program management plan required under section 9002 of
this title.
(f) Submittal of report to Secretary of Energy
After consideration of the Technical Panel report, the Energy
Research Advisory Board shall submit such report, together with any
comments such Board deems appropriate, to the Secretary.
(g) Cooperation by agency heads
The heads of the departments, agencies, and instrumentalities of the
executive branch of the Federal Government shall cooperate with the
Technical Panel in carrying out the requirements of this section and
shall furnish to the Technical Panel such information as the Technical
Panel deems necessary to carry out this section.
(h) Staff, funds, and other support from Secretary of Energy
The Secretary shall provide sufficient staff, funds, and other
support as necessary to enable the Technical Panel to carry out the
functions described in this section.
(Pub. L. 96-310, 8, July 17, 1980, 94 Stat. 945.)
Advisory panels established after Jan. 5, 1973, to terminate not
later than the expiration of the 2-year period beginning on the date of
their establishment, unless, in the case of a panel established by the
President or an officer of the Federal Government, such panel is renewed
by appropriate action prior to the expiration of such 2-year period, or
in the case of a panel established by the Congress, its duration is
otherwise provided for by law. See sections 3(2) and 14 of Pub. L.
92-463, Oct. 6, 1972, 86 Stat. 770, 776, set out in the Appendix to
Title 5, Government Organization and Employees.
42 USC -- 9008. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this chapter, the term --
(1) ''ocean thermal energy conversion'' means a method of converting
part of the heat from the Sun which is stored in the surface layers of a
body of water into electrical energy or energy product equivalent;
(2) ''energy product equivalent'' means an energy carrier including,
but not limited to, ammonia, hydrogen, or molten salts or an
energy-intensive commodity, including, but not limited to,
electrometals, fresh water, or nutrients for aquaculture; and
(3) ''Secretary'' means the Secretary of Energy.
(Pub. L. 96-310, 9, July 17, 1980, 94 Stat. 946.)
42 USC -- 9009. Authorization of appropriations
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) There is hereby authorized to be appropriated to carry out the
purposes of this chapter the sum of $20,000,000 for operating expenses
for the fiscal year ending September 30, 1981, in addition to any
amounts authorized to be appropriated in the fiscal year 1981
Authorization Act pursuant to section 7270 of this title.
(b) There is hereby authorized to be appropriated to carry out the
purposes of this chapter the sum of $60,000,000 for operating expenses
for the fiscal year ending September 30, 1982.
(c) Funds are hereby authorized to be appropriated for fiscal year
1981 to carry out the purposes of section 9004 of this title for plant
and capital equipment as follows:
Project 81-ES-1, ocean thermal energy conversion demonstration plants
with a combined capacity of at least one hundred megawatts electrical or
the energy product equivalent, sites to be determined, conceptual and
preliminary design activities only $5,000,000.
(d) Funds are hereby authorized to be appropriated for fiscal year
1982 to carry out the purposes of section 9004 of this title for plant
and capital equipment as follows:
Project 81-ES-1, ocean thermal energy conversion demonstration plants
with a combined capacity of at least one hundred megawatts electrical or
the energy product equivalent, sites to be determined, conceptual and
preliminary design activities only $25,000,000.
(Pub. L. 96-310, 10, July 17, 1980, 94 Stat. 946.)
42 USC -- CHAPTER 99 -- OCEAN THERMAL ENERGY CONVERSION
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
Sec.
9101. Congressional declaration of policy.
9102. Definitions.
9111. License for ownership, construction, and operation of ocean
thermal energy conversion facilities or plantships.
(a) License requirement.
(b) Documented plantships; documented facilities; facilities
located in territorial sea; facilities connected to United States by
pipeline or cable.
(c) License issuance prerequisites.
(d) Issuance conditions; written agreement of compliance; disposal
or removal requirements.
(e) License transfer.
(f) License eligibility.
(g) License term and renewal.
9112. Procedure.
(a) Rules and regulations.
(b) Site evaluation and preconstruction testing.
(c) Expertise or statutory responsibility descriptions.
(d) Application.
(e) Area description; additional license applications.
(f) Copies of application to other agencies.
(g) Notice, comments, and hearing.
(h) Administrative fee.
(i) Approval or denial of application; applications for same area;
factors determinative of facility selection.
9113. Protection of submarine electric transmission cables and
equipment.
(a) Prohibited acts; misdemeanor; penalty and fine.
(b) Culpable negligence; misdemeanor; penalty and fine.
(c) Exceptions.
(d) Suits for damages.
(e) Indemnity.
(f) Repair costs.
9114. Antitrust review.
(a) Review of applications by Attorney General.
(b) Issuance of license as constituting no defense for antitrust
violations.
9115. Adjacent coastal States.
(a) Designation of adjacent coastal State.
(b) State coastal zone management program.
(c) Agreements and compacts between States.
9116. Diligence requirements.
(a) Rules and regulations.
(b) Termination of license.
9117. Protection of the environment.
(a) Environmental assessment program.
(b) Program purposes.
(c) Plan submittal to Congress.
(d) Reduction of program to minimum necessary level.
(e) Environmental impact statement.
(f) Discharge of pollutants.
9118. Marine environmental protection and safety of life and
property at sea.
(a) Coast Guard operations.
(b) Promotion of safety of life and property.
(c) Marking components for protection of navigation.
(d) Safety zones.
(e) Rules and regulations; vessels; ''ocean thermal energy
conversion facility'' defined.
(f) Protection of navigation.
9119. Prevention of interference with other uses of high seas.
(a) License conditions.
(b) Rules and regulations.
(c) Coast Guard operations.
9120. Monitoring of licensees' activities.
9121. Suspension, revocation, and termination of licenses.
(a) Filing of action by Attorney General; automatic suspension.
(b) Immediate suspension of construction or operation pending
completion of proceedings.
9122. Recordkeeping and public access to information.
(a) Records and reports.
(b) Confidential information.
9123. Relinquishment or surrender of license.
(a) Relinquishment or surrender authority; continuation of
liability.
(b) Transfer of right of way.
9124. Civil actions.
(a) Jurisdiction.
(b) Notice.
(c) Right of Administrator or Attorney General to intervene.
(d) Award of costs.
(e) Other remedies not restricted.
9125. Judicial review.
9126. Exempt operations.
(a) Test platforms.
(b) Commercial demonstration ocean thermal energy conversion
facilities or plantships.
9127. Periodic review and revision of regulations.
9141. Determinations under Merchant Marine Act, 1936.
9151. Prohibited acts.
9152. Remedies and penalties.
(a) Issuance and enforcement of orders.
(b) Civil actions by Attorney General; equitable relief.
(c) Civil penalties.
(d) Criminal penalties.
(e) In rem liability of vessels.
9153. Enforcement.
(a) Enforcement responsibility of Administrator of National Oceanic
and Atmospheric Administration; Coast Guard.
(b) Enforcement activities of authorized officers.
(c) Jurisdiction; venue.
(d) Definitions.
9161. Law of the sea treaty.
9162. International negotiations.
9163. Relationship to other laws.
(a) Facilities and plantships as comparable to areas of exclusive
Federal jurisdiction located within a State.
(b) Responsibilities and authorities of States or United States
within territorial seas; applicability of State law to facilities
located beyond territorial seas.
(c) Customs laws.
9164. Submarine electric transmission cable and equipment safety.
(a) Standards and regulations.
(b) Report to Congress on appropriation and staffing needs.
9165. Annual report.
9166. Authorization of appropriations.
9167. Severability.
9168. Report to Congress on promotion and enhancement of export
potential of ocean thermal energy conversion components, facilities, and
plantships.
42 USC -- 9101. Congressional declaration of policy
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) It is declared to be the purposes of the Congress in this chapter
to --
(1) authorize and regulate the construction, location, ownership, and
operation of ocean thermal energy conversion facilities connected to the
United States by pipeline or cable, or located in whole or in part
between the highwater mark and the seaward boundary of the territorial
sea of the United States consistent with the Convention on the High
Seas, and general principles of international law;
(2) authorize and regulate the construction, location, ownership, and
operation of ocean thermal energy conversion plantships documented under
the laws of the United States, consistent with the Convention on the
High Seas and general principles of international law;
(3) authorize and regulate the construction, location, ownership, and
operation of ocean thermal energy conversion plantships by United States
citizens, consistent with the Convention on the High Seas and general
principles of international law;
(4) establish a legal regime which will permit and encourage the
development of ocean thermal energy conversion as a commercial energy
technology;
(5) provide for the protection of the marine and coastal environment,
and consideration of the interests of ocean users, to prevent or
minimize any adverse impact which might occur as a consequence of the
development of such ocean thermal energy conversion facilities or
plantships;
(6) make applicable certain provisions of the Merchant Marine Act,
1936 (46 U.S.C. 1177 et seq.) (46 App. U.S.C. 1101 et seq.) to assist in
financing of ocean thermal energy conversion facilities and plantships;
(7) protect the interests of the United States in the location,
construction, and operation of ocean thermal energy conversion
facilities and plantships; and
(8) protect the rights and responsibilities of adjacent coastal
States in ensuring that Federal actions are consistent with approved
State coastal zone management programs and other applicable State and
local laws.
(b) The Congress declares that nothing in this chapter shall be
construed to affect the legal status of the high seas, the superjacent
airspace, or the seabed and subsoil, including the Continental Shelf.
(Pub. L. 96-320, 2, Aug. 3, 1980, 94 Stat. 974; Pub. L. 98-623,
title VI, 602(a)(1), Nov. 8, 1984, 98 Stat. 3410.)
The Merchant Marine Act, 1936, referred to in subsec. (a)(6), is act
June 29, 1936, ch. 858, 49 Stat. 1985, as amended, which is classified
principally to chapter 27 ( 1101 et seq.) of Title 46, Appendix,
Shipping. For complete classification of this Act to the Code, see
section 1245 of Title 46, Appendix, and Tables.
1984 -- Subsec. (a)(1). Pub. L. 98-623 substituted ''located in
whole or in part between the highwater mark and the seaward boundary of
the territorial sea'' for ''located in the territorial sea''.
Section 1 of Pub. L. 96-320 provided: ''That this Act (enacting
this chapter and section 1279c of Title 46, Appendix, Shipping, amending
sections 1271, 1273, and 1274 of Title 46, Appendix, and enacting
provisions set out as a note under section 1273 of Title 46, Appendix)
may be cited as the 'Ocean Thermal Energy Conversion Act of 1980'.''
For extension of territorial sea of United States, see Proc. No.
5928, set out as a note under section 1331 of Title 43, Public Lands.
42 USC -- 9102. Definitions
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
As used in this chapter, unless the context otherwise requires, the
term --
(1) ''adjacent coastal State'' means any coastal State which is
required to be designated as such by section 9115(a)(1) of this title or
is designated as such by the Administrator in accordance with section
9115(a)(2) of this title;
(2) ''Administrator'' means the Administrator of the National Oceanic
and Atmospheric Administration;
(3) ''antitrust laws'' includes the Act of July 2, 1890, as amended
(15 U.S.C. 1 et seq.), the Act of October 15, 1914, as amended (15
U.S.C. 12 et seq.), and sections 73 and 74 of the Act of August 27,
1894, as amended (15 U.S.C. 8 and 9);
(4) ''application'' means any application submitted under this
chapter (A) for issuance of a license for the ownership, construction,
and operation of an ocean thermal energy conversion facility or
plantship; (B) for transfer or renewal of any such license; or (C) for
any substantial change in any of the conditions and provisions of any
such license;
(5) ''coastal State'' means a State in, or bordering on, the
Atlantic, Pacific, or Arctic Ocean, the Gulf of Mexico, Long Island
Sound, or one or more of the Great Lakes;
(6) ''construction'' means any activities conducted at sea to
supervise, inspect, actually build, or perform other functions
incidental to the building, repairing, or expanding of an ocean thermal
energy conversion facility or plantship or any of its components,
including but not limited to, piledriving, emplacement of mooring
devices, emplacement of cables and pipelines, and deployment of the cold
water pipe, and alterations, modifications, or additions to an ocean
thermal energy conversion facility or plantship;
(7) ''facility'' means an ocean thermal energy conversion facility;
(8) ''Governor'' means the Governor of a State or the person
designated by law to exercise the powers granted to the Governor
pursuant to this chapter;
(9) ''high seas'' means that part of the oceans lying seaward of the
territorial sea of the United States and outside the territorial sea, as
recognized by the United States, of any other nation;
(10) ''licensee'' means the holder of a valid license for the
ownership, construction, and operation of an ocean thermal energy
conversion facility or plantship that was issued, transferred, or
renewed pursuant to this chapter;
(11) ''ocean thermal energy conversion facility'' means any facility
which is standing, fixed or moored in whole or in part seaward of the
highwater mark and which is designed to use temperature differences in
ocean water to produce electricity or another form of energy capable of
being used directly to perform work, and includes any equipment
installed on such facility to use such electricity or other form of
energy to produce, process, refine, or manufacture a product, and any
cable or pipeline used to deliver such electricity, fresh water, or
product to shore, and all other associated equipment and appurtenances
of such facility, to the extent they are located seaward of the
highwater mark;
(12) ''ocean thermal energy conversion plantship'' means any vessel
which is designed to use temperature differences in ocean water while
floating unmoored or moving through such water, to produce electricity
or another form of energy capable of being used directly to perform
work, and includes any equipment installed on such vessel to use such
electricity or other form of energy to produce, process, refine, or
manufacture a product, and any equipment used to transfer such product
to other vessels for transportation to users, and all other associated
equipment and appurtenances of such vessel;
(13) ''plantship'' means an ocean thermal energy conversion
plantship;
(14) ''person'' means any individual (whether or not a citizen of the
United States), any corporation, partnership, association, or other
entity organized or existing under the laws of any nation, and any
Federal, State, local or foreign government or any entity of any such
government;
(15) ''State'' means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, American Samoa, the United
States Virgin Islands, Guam, the Commonwealth of the Northern Marianas,
and any other Commonwealth, territory, or possession over which the
United States has jurisdiction;
(16) ''test platform'' means any floating or moored platform, barge,
ship, or other vessel which is designed for limited-scale, at sea
operation in order to test or evaluate the operation of components or
all of an ocean thermal energy conversion system and which will not
operate as an ocean thermal energy conversion facility or plantship
after the conclusion of such tests or evaluation;
(17) ''thermal plume'' means the area of the ocean in which a
significant difference in temperature, as defined in regulations by the
Administrator, occurs as a result of the operation of an ocean thermal
energy conversion facility or plantship; and
(18) ''United States citizen'' means (A) any individual who is a
citizen of the United States by law, birth, or naturalization; (B) any
Federal, State, or local government in the United States, or any entity
of any such government; or (C) any corporation, partnership,
association, or other entity, organized or existing under the laws of
the United States, or of any State, which has as its president or other
executive officer and as its chairman of the board of directors, or
holder of similar office, an individual who is a United States citizen
and which has no more of its directors who are not United States
citizens than constitute a minority of the number required for a quorum
necessary to conduct the business of the board.
(Pub. L. 96-320, 3, Aug. 3, 1980, 94 Stat. 975; Pub. L. 98-623,
title VI, 602(a)(2), (e)(7), Nov. 8, 1984, 98 Stat. 3410, 3412.)
Act of July 2, 1890, as amended, referred to in par. (3), is act
July 2, 1890, ch. 647, 26 Stat. 209, as amended, known as the Sherman
Act, which is classified to sections 1 to 7 of Title 15, Commerce and
Trade. For complete classification of this Act to the Code, see Short
Title note set out under section 1 of Title 15 and Tables.
Act of October 15, 1914, as amended, referred to in par. (3), is act
Oct. 15, 1914, ch. 323, 78 Stat. 730, as amended, known as the
Clayton Act, which is classified generally to sections 12, 13, 14 to 19,
20, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title 29,
Labor. For further details and complete classification of this Act to
the Code, see References in Text note set out under section 12 of Title
15 and Tables.
Sections 73 and 74 of the Act of August 27, 1894, as amended,
referred to in par. (3), are sections 73 and 74 of act Aug. 27, 1894,
ch. 349, 28 Stat. 570. Sections 73 to 77 of such Act are known as the
Wilson Tariff Act. Sections 73 to 76 enacted sections 8 to 11 of Title
15. Section 77 is not classified to the Code. For complete
classification of this Act to the Code, see Short Title note under
section 8 of Title 15 and Tables.
1984 -- Par. (11). Pub. L. 98-623, 602(a)(2), substituted
''standing, fixed or moored in whole or in part seaward of the highwater
mark'' for ''standing or moored in or beyond the territorial sea of the
United States''.
Pub. L. 98-623, 602(e)(7), substituted ''fresh water'' for
''freshwater''.
For extension of territorial sea of United States, see Proc. No.
5928, set out as a note under section 1331 of Title 43, Public Lands.
42 USC -- SUBCHAPTER I -- REGULATION OF OCEAN THERMAL ENERGY CONVERSION
FACILITIES AND PLANTSHIPS
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
42 USC -- 9111. License for ownership, construction, and operation of
ocean thermal energy conversion facilities or plantships
TITLE 42 -- THE PUBLIC HEALTH AND WELFARE
(a) License requirement
No person may engage in the ownership, construction, or operation of
an ocean thermal energy conversion facility which is documented under
the laws of the United States, which is located in whole or in part
between the highwater mark and the seaward boundary of the territorial
sea of the United States, or which is connected to the United States by
pipeline or cable, except in accordance with a license issued pursuant
to this chapter. No citizen of the United States may engage in the
ownership, construction or operation of an ocean thermal energy
conversion plantship except in accordance with a license issued pursuant
to this chapter, or in accordance with a license issued by a foreign
nation whose licenses are found by the Administrator, after consultation
with the Secretary of State, to be compatible with licenses issued
pursuant to this chapter.
(b) Documented plantships; documented facilities; facilities
located in territorial sea; facilities connected to United States by
pipeline or cable
The Administrator shall, upon application and in accordance with the
provisions of this chapter, issue, transfer, amend, or renew licenses
for the ownership, construction, and operation of --
(1) ocean thermal energy conversion plantships documented under the
laws of the United States, and
(2) ocean thermal energy conversion facilities documented under the
laws of the United States, located in whole or in part between the
highwater mark and the seaward boundary of the territorial sea of the
United States, or connected to the United States by pipeline or cable.
(c) License issuance prerequisites
The Administrator may issue a license to a citizen of the United
States in accordance with the provisions of this chapter unless --
(1) he determines that the applicant cannot or will not comply with
applicable laws, regulations, and license conditions;
(2) he determines that the construction and operation of the ocean
thermal energy conversion facility or plantship will not be in the
national interest and consistent with national security and other
national policy goals and objectives, including energy self-sufficiency
and environmental quality;
(3) he determines, after consultation with the Secretary of the
department in which the Coast Guard is operating, that the ocean thermal
energy conversion facility or plantship will not be operated with
reasonable regard to the freedom of navigation or other reasonable uses
of the high seas and authorized uses of the Continental Shelf, as
defined by United States law, treaty, convention, or customary
international law;
(4) he has been informed, within 45 days after the conclusion of
public hearings on that application, or on proposed licenses for the
designated application area, by the Administrator of the Environmental
Protection Agency that the ocean thermal energy conversion facility or
plantship will not conform with all applicable provisions of any law for
which he has regulatory authority;
(5) he has received the opinion of the Attorney General, pursuant to
section 9114 of this title, stating that issuance of the license would
create a situation in violation of the antitrust laws, or the 90-day
period provided in section 9114 of this title has not expired;
(6) he has consulted with the Secretary of Energy, the Secretary of
Transportation, the Secretary of State, the Secretary of the Interior,
and the Secretary of Defense, to determine their views on the adequacy
of the application, and its effect on programs within their respective
jurisdictions and determines on the basis thereof, that the application
for a license is inadequate;
(7) the proposed ocean thermal energy conversion facility or
plantship will be documented under the laws of a foreign nation;
(8) the applicant has not agreed to the condition that no vessel may
be used for the transportation to the United States of things produced,
processed, refined, or manufactured at the ocean thermal energy
conversion facility or plantship unless such vessel is documented under
the laws of the United States;
(9) when the license is for an ocean thermal energy conversion
facility, he determines that the facility, including any submarine
electric transmission cables and equipment or pipelines which are
components of the facility, will not be located and designed so as to
minimize interference with other uses of the high seas or the
Continental Shelf, including cables or pipelines already in position on
or in the seabed and the possibility of their repair;
(10) the Governor of any adjacent coastal State with an approved
coastal zone management program in good standing pursuant to the Coastal
Zone Management Act of 1972 (16 U.S.C. 1451 et seq.) determines that, in
his or her view, the application is inadequate or inconsistent with
respect to programs within his or her jurisdiction;
(11) when the license is for an ocean thermal energy conversion
facility, he determines that the thermal plume of the facility is
expected to impinge on so as to degrade the thermal gradient used by any
other ocean thermal energy conversion facility already licensed or
operating, without the consent of its owner;
(12) when the license is for an ocean thermal energy conversion
facility, he determines that the thermal plume of the facility is
expected to impinge on so as to adversely affect the territorial sea or
area of national resource jurisdiction, as recognized by the United
States, of any other nation, unless the Secretary of State approves such
impingement after consultation with such nation;
(13) when the license is for an ocean thermal energy conversion
plantship, he determines that the applicant has not provided adequate
assurance that the plantship will be operated in such a way as to
prevent its thermal plume from impinging on so as to degrade the thermal
gradient used by any other ocean thermal energy conversion facility or
plantship without the consent of its owner, and from impinging on so as
to adversely affect the territorial sea or area of national resource
jurisdiction, as recognized by the United States, of any other nation
unless the Secretary of State approves such impingement after
consultation with such nation; or
(14) if a regulation has been adopted which places an upper limit on
the number or total capacity of ocean thermal energy conversion
facilities or plantships to be licensed under this chapter for
simultaneous operation, either overall or within specific geographic
areas, pursuant to a determination under the provisions of section
9117(b)(4) of this title, issuance of the license will cause such upper
limit to be exceeded.
(d) Issuance conditions; written agreement of compliance; disposal
or removal requirements
(1) In issuing a license for the ownership, construction, and
operation of an ocean thermal energy conversion facility or plantship,
the Administrator shall prescribe conditions which he deems necessary to
carry out the provisions of this chapter, or which are otherwise
required by any Federal department or agency pursuant to the terms of
this chapter.
(2) No license shall be issued, transferred, or renewed under this
chapter unless the applicant, licensee or transferee first agrees in
writing that (A) there will be no substantial change from the plans,
operational systems, and methods, procedures, and safeguards set forth
in his application, as approved, without prior approval in writing from
the Administrator, and (B) he will comply with conditions the
Administrator may prescribe in accordance with the provisions of this
chapter.
(3) The Administrator shall establish such bonding requirements or
other assurances as he deems necessary to assure that, upon the
revocation, termination, relinquishment, or surrender of a license, the
licensee will dispose of or remove all components of the ocean thermal
energy conversion facility or plantship as directed by the
Administrator. In the case of components which another applicant or
licensee desires to use, the Administrator may waive the disposal or
removal requirements until he has reached a decision on the application.
In the case of components lying on or below the seabed, the
Administrator may waive the disposal or removal requirements if he finds
that such removal is not otherwise necessary and that the remaining
components do not constitute any threat to the environment, navigation,
fishing, or other uses of the seabed.
(e) License transfer
Upon application, a license issued under this chapter may be
transferred if the Administrator determines that such transfer is in the
public interest and that the transferee meets the requirements of this
chapter and the prerequisites to issuance under subsection (c) of this
section.
(f) License eligibility
Any United States citizen who otherwise qualifies under the terms of
this chapter shall be eligible to be issued a license for the ownership,
construction, and operation of an ocean thermal energy conversion
facility or plantship.
(g) License term and renewal
Licenses issued under this chapter shall be for a term of not to
exceed 25 years. Each licensee shall have a preferential right to renew
his license subject to the requirements of subsection (c) of this
section, upon such conditions and for such term, not to exceed an
additional 10 years upon each renewal, as the Administrator determines
to be reasonable and appropriate.
(Pub. L. 96-320, title I, 101, Aug. 3, 1980, 94 Stat. 976; Pub. L.
98-623, title VI, 602(a)(3)-(5), (b), (e)(8)-(11), Nov. 8, 1984, 98
Stat. 3410-3412.)
The Coastal Zone Management Act of 1972, referred to in subsec.
(c)(10), is title III of Pub. L. 89-454 as added by Pub. L. 92-583,
Oct. 27, 1972, 86 Stat. 1280, and amended, which is classified
generally to chapter 33 ( 1451 et seq.) of Title 16, Conservation. For
complete classification of this Act to the Code, see Short Title note
set out under section 1451 of Title 16 and Tables.
1984 -- Subsecs. (a), (b)(2). Pub. L. 98-623, 602(a)(3), (4),
substituted ''located in whole or in part between the highwater mark and
the seaward boundary of the territorial sea'' for ''located in the
territorial sea''.
Subsec. (c)(1). Pub. L. 98-623, 602(b)(1), substituted ''cannot or
will not'' for ''cannot and will not''.
Subsec. (c)(4). Pub. L. 98-623, 602(e)(8), substituted ''regulatory
authority'' for ''enforcement authority''.
Subsec. (c)(5). Pub. L. 98-623, 602(b)(2), substituted ''has not
expired'' for ''has expired''.
Subsec. (c)(6). Pub. L. 98-623, 602(e)(9), substituted ''application
for a license'' for ''application for license''.
Subsec. (c)(7). Pub. L. 98-623, 602(a)(5), substituted ''will be
documented under the laws of a foreign nation'' for ''will not be
documented under the laws of the United States''.
Subsec. (c)(10). Pub. L. 98-623, 602(b)(3), (5), substituted ''any
adjacent'' for ''each adjacent'' and ''(16 U.S.C. 1451 et seq.)'' for
''(33 U.S.C. 1451 et seq.)''.
Subsec. (c)(13). Pub. L. 98-623, 602(b)(4), substituted ''or'' for
''and'' after the semicolon at the end.
Subsec. (c)(14). Pub. L. 98-623, 602(e)(10), substituted ''if a
regulation'' for ''when a regulation''.
Subsec. (d)(2). Pub. L. 98-623, 602(e)(11), substituted ''applicant,
licensee'' for ''licensee''.
For extension of territorial sea of United States, see Proc. No.
5928, set out as a note under section 1331 of Title 43, Public Lands.