United States Office of Enforcement
Environmental Protection and Compliance Monitoring Revised 1987
Agency . Washington DC 20460
Stationary Source Compliance Series
/EPA The Clean Air Act
Compliance/Enforcement
Guidance Manual
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1987 Revision
The Clean Air Act
Compliance/Enforcement Guidance Manual
U.S. ENVIRONMENTAL PROTECTION AGENCY
Office of Enforcement and Compliance Monitoring
Washington DC 20460
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Table of Contents
Chapter One Overview
1 Introduction 1"!
2 A Short History 1-3
3 The Clean Air Act 1-7
4 Overview 1-201
Chapter Two General Operating Procedures
Chapter Three Compliance Monitoring Procedures
1 Introduction 3-1
2 CAA Section 114 Requests for Information 3-3
3 Inspections 3-7
4 Warrants 3-15
Chapter Four Documentation of Evidence
1 Introduction 4-1
2 Inspection File Review 4-3
3 Review of Adequacy of Evidence 4-9
Chapter Five Responding to Noncompliance
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Chapter Six Administrative Enforcement Actions;
Notice of Violation and Administrative Orders
1 Introduction 5-1
2 Administrative Enforcement Procedures 6-3
Chapter Seven Civil Judicial Enforcement
1 Introduction 7-1
2 Pre-Trial Stage 7-3
3 Injunctive and Penalty Actions 7-11
Chapter Eight Section 120 Noncompliance Penalties
1 Introduction 8-1
2 Section 120 Noncompliance Penalties 8-3
Chapter Nine Criminal Enforcement
Chapter Ten Enforcement of Court Orders
1 Introduction 10-1
2 Consent Decree Tracking 10-3
3 Basic Considerations Underlying Choice of Responses 10-5
4 Types of Enforcement Responses 10-11
Chapter Eleven Special Considerations
1 Introduction 11-1
2 Additional Provisions of the Clean Air Act 11-3
3 The Freedom of Information Act 11-13
4 Protection of Confidential Business Information 11-17
CAA Conpllance/Enforceaentii Guidance Manual 1986
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1 Overview
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Chapter One
Overview
Contents Page
1 Introduction 1-1
2 A Short History 1-3
3 The Clean Air Act 1-7
4 Overview 1-201
National Ambient Air Quality Standards 1-201
Air Quality Control Regions (Section 107) 1-203
State Implementation Plans (Section 110) 1-204
Parts C and D: PSD and Nonattainment
New Source Review 1-205
Part C: Prevention of Significant Deterioration
(Sections 160-169) 1-206
Continuing Obligations of the Permit Holder 1-209
Applicability of PSD or "Who Needs a PSD Permit?" 1-210
Part D: Plan Requirements for Nonattainment Areas
(Sections 171-178) 1-212
Standards of Performance for New Stationary Sources
(Section 111) 1-217
National Emission Standards for Hazardous Air Pollutants
(Section 112) 1-228
Federal Enforcement (Sections 113 and 120) 1-231
Inspections, Monitoring, and Entry (Section 114) 1-233
Exhibit 1-1: National Ambient Air Quality Standards 1-235
Exhibit 1-2: Comparison of PSI Values, Pollutant Levels,
and General Health Effects 1-236
CAA Cospliance/Bnforcemaotl^i Guidance Manual 1986
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Chapter One Contents
CAA Coapllance/Bnforceaent 1-11 Guidance Manual 1986
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Chapter One
1 Introduction
The Clean Air Act, 42 U.S.C. §§7401, et seq., as amended, is intended to
foster the protection and enhancement of the nation's air quality and to
safeguard public health and welfare, and the productive capacity of the
population. The Act is divided into three titles. Title I (Sections 101
through 178) deals with control of pollution from stationary sources,
Title II (Sections 201 through 234) deals with control of pollution from
mobile sources, and Title III (Sections 301 through 327) addresses general
and administrative matters. In addition, Public Law 93-95 established
certain authorities that are related to, but did not amend, the Act. This
guidance manual is aimed at providing an Introductory understanding of the
Act and EPA procedures for Agency personnel involved in compliance and
enforcement activities associated with the control of air pollution from
stationary sources.
The Act is quite complex—so complex that a summary overview necessitates
resort to generalizations that are, in fact and practice, fraught with
exceptions and detailed distinctions. But, with that caveat in mind, we
will proceed with a general description of the Act's framework pertaining
to stationary sources.
The Act directs the Administrator to promulgate national ambient air qual-
ity standards (NAAQS) for certain pollutants to protect the public health
with an adequate margin of safety (primary NAAQS) and to protect the public
welfare (secondary NAAQS). Each state Is required to adopt a plan, called
a State Implementation Plan (SIP), that provides for emissions reductions
from air pollution sources to the extent necessary to achieve and maintain
the NAAQS. States are also required to adopt measures to prevent signifi-
cant deterioration of air quality (PSD) in "clean air areas."
Following state adoption, the SIP Is submitted to EPA for approval before
becoming effective. Disapproved plans, or portions of plans, require revi-
sions by states or, as a last resort, promulgation by the Administrator.
When a SIP is approved by the Administrator, it is enforceable by both the
federal and state governments.
In addition to the SIP regulatory scheme, the Act establishes two other
major regulatory programs for stationary sources. First, the New Source
Performance Standards (NSPS) program establishes stringent emissions limi-
tations applicable to "new" sources in designated Industrial categories
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Chapter One Introduction
nationwide, regardless of the state in which the source is located or the
air quality associated with the area. The second program, the National
Emissions Standards for Hazardous Air Pollutants (NESHAP), regulates emis-
sions of pollutants for which no NAAQS is applicable and which endanger
human health.
The Act establishes various authorities underpinning EPA's compliance and
enforcement activities. In order to obtain information for purposes of
rulemaking, enforcement, and determining compliance status, EPA is vested
with the authority to enter and inspect air pollution sources, and to
gather other types of information. To remedy violations of regulations
adopted pursuant to the Act and to deter future noncompliance by the vio-
lating source and the rest of the regulated community, EPA is authorized to
seek civil and criminal relief in federal district courts. Civil relief
may take the form of an injunction requiring compliance with applicable
regulations by a certain date, and penalties may also be assessed. Crim-
inal conduct may result in a prison sentence and monetary penalties for
willful and Intentional violations of the Act.
The Act also provides for certain administratively Issued orders and
notices to remedy instances of noncompliance. EPA may also administra-
tively assess monetary penalties for noncompliance which assessment is
designed to remove any economic benefit accruing to a violator from
noncompliance.
Finally, the Act provides for public participation at various stages in the
regulatory development and enforcement process, both at the state and
federal levels. The Act also provides for funding for various research and
development programs, for periodic review of standards, and for cooperation
among state, local, and federal governments.
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Chapter One
2 A Short History
The federal air pollution control effort began with the Air Pollution
Control Act of 1955. The 1955 Act essentially authorized research into the
effects of air pollution, but it also established the authority of the
Surgeon General of the United States to investigate particular air pollu-
tion problems. However, the law restricted the Surgeon General's authority
by requiring that he act only upon request of a state or local government.
In 1963, Congress enacted the Clean Air Act. Instead of requiring a
request from a state or local government, this Act empowered the Surgeon
General to investigate specific air pollution problems if he determined
that the pollution originating In one state affected another. The 1963
Act, however, still hampered effective abatement action by the federal
government because it required that the Secretary of the Department of
Health, Education and Welfare determine that the pollution endangered the
health or welfare in the state adjacent to the state of the polluting
source. Further encumbering the abatement process was the requirement that
the federal government hold a series of meetings with the state and local
officials, as well as with the polluter. If the federal government then
determined that an enforceable abatement scheme was necessary, recourse was
limited to obtaining a Judicial compliance order for which the government
carried the burden of showing both the "practicability" of compliance as
well as the "physical and economic feasibility" of the abatement project.
[P.L. 88-206, Section 5(g)(1963)] Both of those requirements presented
burdensome evidentiary hurdles to the government. Very little abatement
resulted.
The immediate predecessor to the modern Clean Air Act was the Air Quality
Act of 1967, which for the first time required the designation of Air
Quality Control Regions (AQCRs), a requirement carried over to the present
Act. AQCRs were to be "based on jurisdictional boundaries, urban-
industrial concentrations, and other factors including atmospheric areas
necessary to provide adequate implementation of air quality standards."
Under the Air Quality Act of 1967, states were required to establish
ambient air quality standards. These state air quality standards were the
forerunners to the National Ambient Air Quality Standards (NAAQS) that form
the backbone of the present-day law. With respect to enforcement, the
conference procedures established by the 1963 Act survived under the 1967
Act with the net result that (by 1970) the government had filed only one
case in a federal court.
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Chapter One A Snort History
The modern approach to air pollution control was born in 1970 with the
enactment of the Clean Air Act Amendments of 1970. A critical difference
between the 1970 Act and previous law was the increased authority of the
federal government in air pollution control. The 1970 Act provided for the
adoption of National Ambient Air Quality Standards and the requirement that
each state adopt legislation and regulations, called State Implementation
Plans (SIPs), that Include adequate measures necessary to achieve and main-
tain the NAAQS. If a state did not adopt such measures, then EPA was
empowered to do so for the state. This approach clearly recognized that
pollution generated in one state may cause or contribute to unhealthful or
undesirable air quality in another state or states.
The designers of the 1970 Act also recognized that air pollution controls
are generally more effective and less costly when designed as part of the
original production facility, rather than retrofitted to an existing facil-
ity. As well-controlled new facilities come into operation, replacing
older and more polluting facilities, a net air quality benefit would be
realized over time. Thus, the 1970 Act established the New Source Perfor-
mance Standards (NSPS), which assigned stringent technology-based emission
limitations on "new" sources of air pollution in certain designated indus-
trial categories. These federal standards apply in every state and so
avoid the problem of "pollution havens" being created by disparities in the
stringency of emission limitations from state to state. The uniformity of
the NSPS discourages owners from locating new Industrial sources In partic-
ular states to avoid pollution control costs associated with other states.
Also enacted in the 1970 Act were provisions directing the federal
regulation of hazardous air pollutants. The National Emission Standards
for Hazardous Air Pollutants (NESHAPs) regulate pollutants for which there
is no applicable NAAQS and that may cause or contribute to air pollution
reasonably anticipated to result In mortality or an increase in serious
Irreversible, or incapacitating reversible, illness.
The 1970 Amendments discarded, for most cases, the Byzantine enforcement
procedures of the preceding enactments and substituted a straightforward
approach authorizing the Administrator to issue an administrative compli-
ance order or to commence a civil action in U.S. district court for appro-
priate relief, including a permanent or temporary injunction against a
violator. The 1970 Amendments also authorized criminal prosecutions of
"knowing" violators. Moreover, to further strengthen the drive against
sources of air pollution, the 1970 Amendments authorized citizen suits
against violators of the Act, including government agencies, and against
the Administrator for failure to perform nondiscretionary duties.
The authority of EPA to enter and inspect sources of air pollution for the
purposes of regulatory development, determination of whether a standard is
being violated and to carry out the Act's emergency powers, is a product of
the 1970 Act. The air pollution emergency powers were also enacted in
1970. The Administrator is empowered to seek to restrain promptly, either
by administrative order or court order, a polluting source or combination
of sources from presenting an imminent and substantial endangerment to the
health of persons.
CAA Compliance/Enforcement 1-4 Guidance Manual 1986
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Chapter One A Short History
The Clean Air Act was amended again in 1974 in the wake of the energy
crisis spawned by the Organization of Petroleum Exporting Countries' oil
embargo. The 1974 Amendments, known as the Energy Supply and Environmental
Coordination Act of 1974 (ESECA), were Intended to provide for means to
deal with energy- shortages by providing for, among other things, temporary
suspensions of air pollution control requirements in certain emergency cir-
cumstances and delayed compliance orders to permit fuel conversions from
oil to coal.
The Clean Air Act underwent a major overhaul in the 1977 Amendments.
Significant additional enforcement powers were granted to EPA including a
federal district court cause of action for civil penalties of up to $25,000
per day of violation and administratively assessed noncompliance penalties
to remove the economic benefit of delayed compliance.
Importantly, the 1977 Amendments added more stringent minimum requirements
for State Implementation Plans to prevent significant deterioration of air
quality in "clean air areas" (Part C) and stringent requirements for major
"new" sources locating in areas not achieving the NAAQS (Part 0). The 1977
Amendments established December 31, 1982, as the final date for attainment
of the primary NAAQS, except for certain areas particularly affected by
mobile source pollution for which the possibility of a 1987 attainment
deadline was established.
Other significant features of the 1977 Amendments were the requirement of a
"percentage reduction" of emissions for fossil fuel-fired stationary
sources subject to NSPS, provisions for the issuance of delayed compliance
orders in certain narrowly defined types of cases, and provisions for the
Issuance of orders to qualifying nonferrous smelters to defer compliance
with sulfur dioxide limitations to no later than January 1, 1988.
Most recently, Congress responded to the deteriorating economic conditions
of the domestic iron and steel industry by enacting the Steel Industry
Compliance Extension Act of 1981 (SICEA), which permitted the Administrator
to exercise discretion to agree to court orders allowing qualifying iron
and steel sources up to the end of 1985 to comply with SIP requirements.
The capital savings realized from the deferral of pollution control costs
were required to be invested in iron and steel facilities to Improve their
efficiency and productivity.
With the exception of SICEA and certain technical amendments, a host of
other legislative initiatives, supported by various groups from industry,
environmental groups, and the federal government has since 1977 failed to
result in additional amendments to the Act.
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Chapter One A Short Bistory
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Chapter One
3 The Clean Air Act
97th Congrema 1
lit Session J
COMMITTEE PRINT
THE CLEAN AIR ACT AS AMENDED
THROUGH JULY 1981
SEPTEMBER 1981
SERIAL NO. 97-4
Printed for the use of the Senate
Committee on Enrironment and Public Works
O.S. GOVERNMENT PRINTING OPTTCE
WASHINGTON : 1031
CAA Conpliance/Enforceacat
1-7
Guidance Manual 1986
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Chapter One The Clean Air Act
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ROBERT T. STAFFORD. Vermont. Chairman
HOWARD H. BAKER. J« , Tenneue* JENNINGS RANDOLPH. Welt Virginia
PETE V. DOMENICI. New Meileo LLOYD BENTSEN, Teias
JOHN II. CHAFEE. Rhode Island QUENTIN N. BURDICK. North Dakota
ALAN K. SIMPSON, Wyoming OARY HART. Colorado
JAMES ABDNOR. South Dakota DANIEL PATRICK MOYNIHAN. New York
STEVE SYMMS. Idaho GEORGE J. MITCHELL. Maine
SLADE GORTON. Washington MAX BAUCU8, Montana
FRANK H. HURKOW8KI. Alaska
BAILET OOABD, Staff Dlreelor
JOHN W. YAOO, Jr.. Minority Staff Director
(II)
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Chapter One The Clean Air Act
CONTENTS
NOTE : This contents Is solely for tbe convenience of tbe reader and
la not part of the act.
TITLE I— AIR POLLUTION PREVENTION AND CONTROL
PART A — AIR QUALITY AND EMISSION LIMITATIONS
Section :
101— Findings and purposes -------------------------------- ...... 1
102 — O'ooperntlve activities and uniform Inws __________ .......... .. 2
103 — Research, Investigation, training, and other activities ........ - 2
104 — Research relating to fuels and vehicles _________________ ..... .. B
105— Ornnts for support of air pollution planning and control pro-
grams ----- ......... ... ................. . ............... 7
106 — Interstate air quality apenr-fes or commissions ___________ ..... 0
107 — Air quality control regions __________________________________ 10
108 — Air quality criteria and control techniques ________________ ..... 12
109— National ambient nlr quality standards ________ ........ _ ..... 15
110 — Implementation plans _____________________ ...... .. . ........ 17
111 — Standards of performance for now stationary sources _________ 29
112 — National emission standards for hazardous air |H>lliitnnts ...... 37
113— Federal enforcement ................ . ............... ________ 30
114 — Inspections, monitoring, and entry __________ ................. 81
115 — International air pollution _______________________ 33
110 — Retention of State authority .............. . ........ !!-!!!!!! 54
117 — President's air quality advisory board nnd ndvlsory com mi Mew 54
118— Control of pollution from Federal facilities... ............ 55
HO — Primary non ferrous smelter orders _________ _ QH
120— Noncompllance penalty ......... ____ ............ an
121— Consultation ........................ " ........ <£•
122— Listing of certain unregulated p* :iutants.-!!! ............. """ BT
123— Stack heights ____ ........ ____ .. ..... ............ SI
124— Assurance of adequacy of State plans ...... " ...... "" an
]«» , eflsurM to Prevent economic disruption or unemploTinont " TO
120— Interstate pollution abatement ...... ...... i,
128— State boards ...... . ....... ................ ------ U
-------- - . — yjj
„„.. ***** B — OZONE PROTCCTION
section :
150— Purposes .......
151— Findings and definitions!"!!" .......... " .................. I,
152— Definitions ....... ..... " ...................... ~*
"" '
Agency "
in 1nd mon»or«nB by other agencies _____ ....... ...... „
155— Progress of regulation... .......... "
150— International cooperation ... ....................... ~ ..... '*
157— Regulations ........... " ...... ........ - ..... 78
158 — Other provisions unaffected .............. " ............... 70
159 — State authority .......... " ........ ----- ..... '»
......... ~ ......... - ............. - ..... so
CUD
CAA Compliance/Enforcement 1-9 Guidance Manual 1986
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Chapter One The Clean Air Act
rv
I'ART C— PRKVr.NTION or SlON IKICAMT DETERIORATION nr AlR (Jl'AI.ITT
SI'nPART I
Spot Ion : Pat*
I CO — riir|)nsp.j
I (VI — Arcn reilpslgiuitlnii ________ _________ •_ ........... _ ...... ^o
I OT — ('reconstruction requirements.. ............... "" oa
ir,rfore plnn npprovnl.. ...... no
l(i!>— Definitions ............................ """""I" ........ no
Sl'BPART I
Section :
!•'•!* -i— Visibility protection for Frdernl clnss r nrrn* ............... 04
PART I>— I-I.AN URQUIMEMCNTS FOR NONATTAIMMF.NT
171—
172— NiMinttnliinirnt plnn provisions _________________ "" ...... 99
17.1* — I'prinlt. rfH|iilrenients ___________ ..... ____ 1.11111111" ....... 101
J 74 — I 'In n nine procedures ___________________ ...... J~~ ....... JQ.
1" — Knviroiiiiienfnl I'mtertlon A(tenry (jrnnts ..... "" ............. 10o
1T<1 — Mniitntlons W """"r relllcle ^mission stnmlnnlN in '"
178 — Ouidnnoe document!).
TITI-R IF— EMISSION STANDARDS FOR MMVINO S
Soclion :
201— Short title ......................................... 104
I'.MIT A — Moron Vr.iiirLK KMIMHIOH ANI> Ki n. STANHARIK;
Soot I on :
2»K>— Rstnhllshinpnt of atandflrds... mi
203— Prohibited nets ..... ........ " .............. ---- „„
2(M— injunction proceeding ............ .................. "" iln
205— ronnltles ............................. '."."."". ........... " \\»
200— Motor vehicle nnd motor reblrle enVlne "compnnnre""tesfrnB
nnd certification ....... _____ lin
207— Compllnnce l>y vehicles nnd en«lnes"fn"nctunr"use ............ 121
208— Record.* nnd reports.. ...... ...... },o
200— Stnte standards ....... ................ ..... .XX
210— Stnte crnnts ........ ..................... ' ..... !£!
211— Itpfrulnlltm of fuels ......... . ...... ~~"~ ............... ------ j*
•2l'Z— Drvelopinent »f low-emlssion vehlVles"!" ................... ]«n
213— Fuel economr iniprovemenf from new motor veMrli-s .......... \*n
211 — Study of pnrflculnti- emissions from motor vehicles ..... 141
.1.1— Illch nltltude pcrformnm-e odlustments ,A,
•-'10— Di-nnlllons for (.nrt A .................. """""111""""" 542
PART II — AIRCRAFT EMISSION STANDARDS
Section:
231— Rstnhllshment of standards
232— Fiiforcemetit of standards
233- Stnte standards and controls
234— Definitions ____
CAA Coapllance/Boforceaent 1-10 Guidance Manual 1986
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Chapter One
The Clean Air Act
TITLE III—GENERAL
Section: Pmf*
301—Administration 145
302—Definitions 145
303—Emergency powers 147
304—Citizen suits - — 148
305—Representation In litigation.. - - 150
306—Federal procurement 151
307—General provisions relating to administrative proceedings and
judlclnl review 151
308—Mandatory licensing 157
3«>—Policy review -.- 15R
310—Otner authority not affected 168
311—Records and andlt - *™>
312—Comprehensive economic cost studies and studies of cost-effec-
tiveness analysis 150
313—Additional reports to Congress. ~ 180
3H—Labor standards Ifll
31!>—Separability ._ - 161
310—Sewage treatment gra/its — - 161
317—Economic Impact assessment 182
318—Financial disclosure: conflicts of interest _ 164
319—Air quality monitoring 166
320— Standardised air quality modeling _ 166
321—Employment effects 107
322—Employee protection - 16S
303—Cost of emission control for certain vapor recovery to ho home
liy owner of retail outlet -- 171
3-J4—Vnpor recovery for small business marketers of petroleum
products 171
.12fi—Construction of certain clauses - 172
320—Appropriation* - '72
Provisions i>f I'tiMIc I-aw Iffi-IKi which do not amend the Clean Air Act 175
National Commission on Air Quality (repealed) 1R6
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<:ii.ii>i.:i tine The Clean Air Act
NOTE
Amendments made by the 1981 amendments, Public
Law 97-23, are shown as follows: Language to be
omitted is struck through; new language is printed
in italic.
THE CLEAN AIR ACT1
TITLE I—AIR POLLUTION PREVENTION AND
CONTROL
PART A—AIR QUALITY AND EMISSION LIMITATIONS
FINDINGS AND PURPOSES
SEC. 101. (a) The Congress finds—
(1) that the predominant part of the Nation's
population is located in its rapidly expanding metro-
politan and other urban areas, which generally cross
the boundary lines of local jurisdictions and often
extend into two or more States;
(2) that the growth in the amount and complex-
ity of air pollution brought about by urbanization,
industrial development, and the increasing use of
motor vehicles, has resulted in mounting dangers to
the public health and welfare, including injury to
agricultural crops and livestock, damage to and the
deterioration ot property, and hazards to air and
ground transportation;
(3) that the prevention and control of air pollu-
tion at its source is the primary responsibility of
States and local governments; and
(4) that Federal financial assistance and leader-
ship is essential for the development of cooperative
Federal, State, regional, and local programs to pre-
vent and control air pollution.
(b) The purposes of this title are—
(1) to protect and enhance the quality of the Na-
tion's air resources so as to promote the public
health and welfare and the productive capacity of
its population;
(2) to initiate and accelerate a national research
and development program to achieve the prevention
and control of air pollution;
(3) to provide technical and financial assistance
to State and local governments in connection with
the development ana execution of their air pollution
prevention and control programs; and
(4) to encourage and assist the development and
operation of regional air pollution control programs.
,o.'f«,.A2J** u'8-c 188T •* ••»> 'ndodw »ne Clean Air Act of
1983—P.L. 80-206. and amendment* mad* by tbt Motor Vehicle Air
Pollution Control Act—P.L. 89-272 (October 20. 1965). the Clean Air
Act Amendmentiof 1988—P.L. 89-675 (October IB. 1966). tbe Air
Quality Act at 1967—P.L. 90-148 (NoT*»ber 81. 1967), the Clean Air
Amendment! of 1970— P.L. 91-604 (December 31. 1»TO). tbe Compreben-
•«»• H*»l«n*«npow«r Trmlnln« Act of 1971—P.L. 92-157 (November l«.
L9?I>x.tlLe..£MT*' 8"PP'7 and Environmental Coordination Act of 1974—
P.L. 93-819 (June 2t 1974). Clean Air Act Amendment* of 1977—P.L.
95-95 (Auanit 7. 1977). Safe Drinking Water Act of 1977—P.L. 95-190
(November 16. 1977). Public Law 96-300 (July 2. 1980). and Public
Law 97-23 (July 17. 1981). /»
CAA Conpliance/Soforceaent 1-12 . Guidance Manual 1986
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Chapter One The Clean Air Act
COOPERATIVE ACTIVITIES AND t'NIFOnM I.AWR
SPC. 102. (a) The Administrator shnll encourage co-
operative activities by the States and local governments
for the prevention nnd control of nir pollution; encour-
age the enactment of improved and, so fnr as practicable
in the light of varying conditions and needs, uniform
State and local laws relating to the prevention and con-
trol of air pollution; and encourage the making of
agreements and compacts between States for the pre-
vention and control of air pollution.
(b) The Administrator shall cooperate with and en-
conrnge cooperative activities by all Federal depart-
ments and agencies having functions relating to Hie
prevention and control of air pollution, so as to assure
the, utilization in the Federal air pollution control pro-
gram of all appropriate and available facilities and
resources within the Federal Government.
(c) The consent of the Congress is hereby given to
two or more States to negotiate and enter into agree-
ments or compacts, not in conflict with anv law or treaty
of the United States, for (1) cooperative effort anil
mutual assistance for the prevention and control of Rir
pollution and the enforcement of their respective laws
relating thereto, and (2) the establishment of such agen-
cies, joint or otherwise, as they may deem desirable for
making effective such agreements or compacts. No such
agreement or compact shall be binding or obligatory
upon any State a party thereto unless and until it has
been approved by Congress. It is the intent of Congress
that no agreement or compact entered into between
States after the date, of enactment of the Air Quality
Act of 10B7, which relates to the control and abatement
of air pollution in an air quality control region, shall
provide for participation by a State which is not in-
cluded (in whole or in part) in such air quality control
region.
RESEARCH, INVESTIGATION, TRAINING, AM) OTIIKK
ACTIVITIES
SRC. 103. (a) The Administrator shall establish a na-
tional research and development program for the pre-
vention and control of air pollution and as part of such
program shall—
(1) conduct, and promote the coordination nnd
acceleration of, research, investigations, experi-
ments, demonstrations, surveys, and studies relating
to the causes, effects, extent, prevention, and control
of air pollution;
(2) encourage, cooperate with, and render tech-
nical services and provide financial assistance to air
pollution control agencies and other appropriate
CAA Compliaace/Eaforceaent 1-13 Guidance Manual 1986
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Chapter One The Clean Air Act
public or private nancies, institutions, nnd orga-
nizations, and individuals in tlio conduct of such
activities;
(3) conduct investigations nnd research nnd make
surveys concerning any specific problem of nir pol-
lution in cooperation with any air pollution control
agency with a view to recommending a solution of
such problem, if he is requested to do so by surh
agency or if, in his judgment, such problem may af-
fect any community or communities in a State other
than that in which the source of the matter causing
or contributing to the pollution is lornted:
(4) establish technical advisory committees com-
posed of recognized ex|>erts in various aspects of nil-
pollution to assist in the examination and evaluation
of research progress and proposals and to avoid du-
plication of research; and
(5) conduct and promote coordination nnd accel-
eration of training for individuals relating to the
causes, effects, extent, prevention, and control of air
pollution.
(b) In carrying out the provisions of the preceding
subsection the Administrator is authorized to—
(1) collect and make available, through publica-
tions and other appropriate means, the results of nnd
other information, including appropriate recom-
mendations by him in connection therewith, per-
taining to such research and other activities:
(2) cooperate with other Federal departments nnd
agencies, with air pollution control agencies, with
other public and private agencies, institutions, and
organizations, and with any industries involved, in
the preparation and conduct of siu-h research nnd
other activities;
(3) make grants to air pollution control agencies.
to other public or nonprofit private agencies, insti-
tutions, and organizations, and to individunls. for
purposes stated in subsection (n) (I) of this section :
(4) contract with public or private agencies, in-
stitutions, and organizations, and with individuals,
without regard to sections :W4H nnd :»"•>!> of the Re-
vised Statutes (31 U.S.('. .VJO; 41 I'.S.C. 5):
(5) establish and mnintnin research fellowships.
in the Environmental Protection Agency nnd at
public or nonprofit, private educational institutions
or research organizations:
(6) collect and disseminate, in cooperation with
other Federal departments and agencies, nnd with
other public or private agencies, institutions, ami
organizations having relnted responsibilities, basic
data on chemical, physical, and biological effects of
vary ing air quality and other in format ion perl :i in ing
to air pollution and the prevention and control there-
of; and
CAA Coapllance/Boforceaent 1-14 Guidance Manual 1986
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Chapter One The Clean Air Act
(7) develop effective find practical processes, meth-
ods, and prototype devices for the prevention or
control of air pollution.
In carrying out the provisions of subsection (a), the Ad-
ministrator shall provide training for, nncl make training
grants to, personnel of air pollution control agencies and
other persons with suitable qualifications and make
grants to such agencies, to otlior public or nonprofit
private agencies, institutions, and organizations for the
purposes stated in subsection (a) (5). Reasonable fees
may be charged for such training provided to persons
other than personnel of air pollution control agencies but
such training shall be provided to .such personnel of air
pollution control agencies withoutcharge.
(c) In carrying out the provisions or subsection (a) of
this section the Administration shall conduct research on,
and survey the results of other scientific studies on, the
harmful effects on the health or welfare of persons by the
various known air pollutants.
(d) The Administrator is authorized to construct such
facilities and staff and equip them as he determines to be
necessary to carry out his functions under this Act.
(e) If, in the judgment of the Administrator, an air
pollution problem of substantial significance may result
from discharge or discharges into the atmosphere, he may
cnll a conference concerning this potential air pollution
problem to be held in or near one or more of the places
where such discharge or discharges are occurring or will
occur. All interested persons shall be given an opportu-
nity to l>e heard at such conference, either orally or in
writing, and shall be permitted to appear in person or by •
representative in accordance with procedures prescribed
by the Administrator. If the Administrator finds, on tho
basis of evidence, presented at such conference, that the
discharge or discharges if permitted to take place or con-
tinue are likely to cause or contribute to air pollution
subject to abatement under section 115, he shall send such
findings, together with recommendations concerning the
measures which he finds reasonable and suitable, to pre-
vent such pollution, to the person or persona whose ac-
tions will result in the discharge or discharges involved;
to air pollution agencies of the State or States and of
the municipality or municipalities where such discharge
or discharges will originate; and to the interstate air
pollution control agency, if any, in the jurisdictions! area
of which any such municipality is located. Such findings
and recommendations shall be advisory only, but shall be
admitted together with the record of the conference, as
port of the proceedings under subsections (b), (c), (d),
(e).and (f) of section 115.
(f) (1) In carrying out. research pursuant to this Act,
the Administrator shall give special emphasis to research
on the short- and long-term effects of air pollutants on
public health and welfare. In the furtherance of such
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Chapter One The Clean Air Ace
research, he shall conduct an accelerated research
program—
(A) to improve knowledge of the contribution
of air pollutants to the occurrence of adverse effects
on health, including, but not limited to, behavioral
physiological, lexicological, and biochemical effects;
and
(13) to improve knowledge of the short- and long-
term effects of air pollutants on welfare.
(2) In carrying out tiie provisions of this subsection
(lie Administrator may—
(A) conduct epidcniiological studies of the effects
of air pollutants on mortality and morbidity;
(B) conduct clinical and laboratory studies on the
immunologic, biochemical, physiological, and the
toxicological effects including carcinogenic, terato-
genic, and mutagenic effects of air pollutants;
(C) utilize, on a reimbursable basis, the facilities
of existing Federal scientific laboratories and re-
search centers;
(D) utilize the authority contained in paragraphs
(1) through (4) of subsection (b); and
(E) consult with other appropriate Federal agen-
cies to assure that research of studies conducted pur-
suant to this subsection will be coordinated with re-
search and studies of such other Federal agencies.
(3) In entering into contracts under this subsection,
the Administrator is authorized to contract for a term
not to exceed 10 years in duration. For the purposes of
this paragraph, there are authorized to be appropriated
$15,000,000. Such amounts as are appropriated shall re-
main available until expended and shall be in addition
to any other appropriations under this Act.
RESEARCH RELATING TO FUELS AND VEHICLES
SF.C. 104 (a) The Administrator shall give special em-
phasis to research and development into new and im-
proved methods, having industrywide application, for
the prevention and control of air pollution resulting from
the combustion of fuels. In furtherance of such research
and development he shall—
(1) conduct and accelerate research programs
directed toward development of improved, low-cost
techniques for—
(A) control of combustion byproducts of
fuels,
(B) removal of potential air pollutants from
fuels prior to combustion,
(C) control of emissions from the evapora-
tion of fuels,
(D) improving the efficiency of fuels combus-
tion so as to decrease atmospheric emissions, and
(E) producing synthetic or new fuels which,
CAA CoapLiance/Baforceaeat 1-16 Guidance Manual 1986
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Chapter One . The Clean Air Act
6
used, result in den-cased atmospheric
emissions.
(2) provide for Federal grants tn public or non-
profit agencies, institutions, and organizations and
to individimls. nnd contracts with public or private
agencies, institutions or persons, for payment of (A)
part of the- cost of acquiring, constructing, or other-
wise securing for research tind development, pur-
poses, now or improved devices or methods having
industrywide application of preventing or control-
ing discharges into (he air of various types of pol-
lutnnts; (B) part of the cost of programs to develop
low emission alternatives to the present internal com-
bustion engine; ((') the cost to purchase vehicles
and vehicle engines, or portions thereof, for research,
development, and testing purposes; and (D) carry-
ing out the other provisions of this section, without
regard to sections :U!48 and :i70fl of the Kevised Stat-
utes (.11 U.S.C1. ft-_»!>: 11 T.S.r. ft) : rrnrMrtt, That.
research or demonstration contracts awarded pur-
suant to this subsection or demonstration contracts
awarded pursuant to this subsection (including con-
tracts for construction) may be made in accordance
with, and subject to the limitations provided with
respect to research contracts of the military deport-
ments in, section 23ft3 of title 10. United States Code,
except that the determination, approval, and cer-
tification required thereby shall be made by the Ad-
ministrator : I'witted further. That no grant, may be
made under this paragraph in excess of $1,500.000;
(3) determine, by laboratory and pilot plant test-
ing, the. results of air pollution research and studies
in order to develop new or improved processes and
plant designs to the point where they can be demon-
strated on n large nun practical scale:
(4) construct, operate, and maintain, or assist in
meeting the cost of the construction, operation, and
maintenance of new or improved demonstration
plants or processes which have promise of accom-
plishing the purposes of this Act;
(5) study new or improved methods for the re-
covery and marketing of commercially valuable by-
products resulting from the rcmoval'of pollutants.
(b) In carrying out the provisions of this section, the
Administrator may—
(1) conduct" and accelerate research and develop-
ment of low-cost instrumentation techniques to facil-
itate determination of quantity ami quality of air
pollutant, emissions, including! but not limited to.
automotive, emissions:
(2) utilize, on a reimbursable busis. the facilities
of existing Federal scientific laboratories;
CAA Compliance/Enforcement 1-17 Guidance Manual 1986
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Chapter One The Clean Air Act
(3) establish nnd operate necessary facilities and
test sites at which to carry on the research, le-ring.
development, and programing nccessarv to cH'cc-
tuate the purposes of this section;
(4) acquire secret processes, technical (Into, in-
ventions, patent, applications, patents, licenses. :md
an interest in Inmfs,-plants, and facilities, nnd other
property or rights by purchase, license, lease, or
donation; and
(51 cause on-site inspections to lie made of promis-
ing domestic and foreign projects, and cooperate and
participate in their development in instances in
which the purposes of the Act will be served thereby.
(c) For the purposes of this section there nn- author-
ized to IKS appropriated $75.000.000 for the fiscal year
ending June 30, 1!»71. $125,000.000 for the fiscal ve:»r end-
ing June 30, 1072, and $150.000.000 for the fiscal veal-
ending Juno 30, 1973. $150.0011,000 for the fiscal vear end-
ing June 30, 1974, and $150.000.000 for the fiscal year
ending June 30, 1075. Amounts appropriated pursuant.
to this subsection shall renmin available until expended.
GRANTS FOR SUPPORT OF AIR POLLUTION PLANNING!
AND CONTROL PROGRAMS
SEC. 105. (a)(l)(A) The Administrator may make
grants to air pollution control agencies in an amount
up to two-thirds of the cost of planning, developing,
establishing, or improving, and up to one-half of the
cost of maintaining, programs for the prevention ami
control of a4r pollution or implementation of nation;)!
primary and secondary ambient air quality standards.
(B) Subject tosubparagraph (C). the Administrator
may make grants to air pollution control agencies within
the meaning of paragraph (1), (2). or (4) of section
302(b) in an amount, up to three-fourths of the cost of
planning, developing, establishing, or improving, and
up to three-fifths of the cost of maintaining, any pro-
gram for the prevention and control of air pollution or
implementation of national primary and secondary am-
bient air quality standards in an area that includes two
or more municipalities, whether in the same or different
States.
(C) With respect to any air quality control region or
portion thereof for which there is an applicable imple-
mentation plan under section 110, grants under subpara-
graph (B) may be made only to air pollution control
agencies which have substantial responsibilities for
carrying out such applicable implementation plan.
(2) Before approving any grant under this subsection
to any air pollution control agency within the meaning
of sections 302(b)(2) and 302(b)(4) the Administrator
shall receive assurances that such agency provides for
CAA Coopllance/Bnforceaent 1-18 Guidance Manual 1986
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Chapter One The Clean Air Act
8
adenuate representation of appropriate State, interstate,
local, and (when appropriate) international, interests in
the air quality control region. >
(3) Before approving any planning grant under this
subsection to any air pollution control agency within
the meaning of sections 302(b)(2) and 302(h)(4), the
Administrator shall receive assurances thnt such agency
has the capability of developing a comprehensive air
quality plan for the air quality control region, which
plan shall include (when appropriate) a recommended
system of alerts to avert and reduce the. risk of situations
in which there may be, imminent and serious danger to
the public health or welfare from air pollutants and the
various aspects relevant to the establishment of air
quality standards for such air quality control region, in-
cluding the concentration of industries, other commercial
establishments, population and naturally occurring
factors which shall affect such standards.
(b) From the sums available for the purposes of sub-
section (a) of this section for any fiscal year, the Admin-
istrator shall from time to time make grants to nir pollu-
tion control agencies upon such terms and conditions as
the Administrator may find necessary to carry out the
purpose of this section. In establishing regulations for
the granting of such funds the Administrator shall, so
far as practicable, give due consideration to (1) the
population. (2) the extent of the. actual or potential air
pollution problem, and (3) the financial need of the re-
spective agencies. No agency shall receive any grant un-
der this section during any fiscal year when its expendi-
tures of non-Federal funds for other than nonrecurrent
expenditures for air pollution control programs will be
less than its expenditures were for such programs during
the preceding fiscal year, unless the Administrator, after
notice and opportunity for public hearing, determines
that a reduction in expenditures is attributable to a non-
selective reduction in expenditures in the programs of all
executive branch agencies of the applicable unit of Gov-
ernment; and no agency shall receive any grant under
this section with respect to the maintenance, of a pro-
gram for. the prevention and control of air pollution
unless the Administrator is satisfied that such grant will
he so used to supplement and, to the extent practicable,
increase the level of State, local, or other non-Federal
funds that would in the absence of such grant be made
available for the maintenance of such program, and will
in no event supplant such State, local, nr other non-
Federal funds. No grant shall be made under this sec-
tion until the Administrator has consulted with the
appropriate official as designated bv the Governor or
Governors of the State or States affected.
(c) Not more than 10 per centum of the total of funds
appropriated or allocated for the purposes of subsection
CAA Coapllance/Enforceaent 1-19 Guidance Manual 1986
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Chapter One The Clean Air Act
9
(a) of this section shall be granted for air pollution con-
trol programs in any one Stnte. In the rnso of n ginut
for a program in an area crossing State boundaries, the
Administrator shall determine the portion of such grant
thnt is chargeable to the |x>rcpiita>re limitation under this
subsection for each State into which such area extends.
In fiscal year 1978 and subsequent fiscal years, subject
to the provisions of subsection (b) of this section, no
State shall receive less than one-half of 1 per centum of
the annual appropriation for grants under this section
for grants to agencies within such State.
(d) The Administrator, with the concurrence of any
recipient of a grant under this section may reduce the
payments to such recipient by the amount of Hie pny,
allowances, traveling expenses, and any other costs in
connection with the detail of any officer or employee to
the recipient under section 301 of this Act, when such de-
tail is for the convenience of, and at the request of, such
recipient and for the purpose of carrying out the provi-
sions of this Act. The amount by which such payments
have been reduced shall be available for payment of such
costs by the Administrator, but shall, for the purpose of
determining the amount of any grant to a recipient under
subsection (a) of this section, be deemed to have lieen
paid to such agency.
(e) No application by n State for n grant under this
section may be disapproved by the Administrator with-
out prior notice and opportunity for a public hearing in
the affected State, and no commitment or obligation of
any funds under any such grant may be revoked or re-
duced without prior notice and opportunity for a public
hearing in the affected State (or in one of the affected
States if more than one State is affected).
INTERSTATE AIR QUAUTT AGENCIES OR COMMISSIONS
SEC. 106. For the purpose of developing implementa-
tion plans for any interstate air quality control region
designated pursuant to section 107, the Administrator is
authorized to pay, for two years, up to 100 per centum
of the air quality planning program costs of any agency
designated by the Governors of the affected States, which
agency shall be capable of recommending to the Gover-
nors plans for implementation of national primary and
secondary ambient air quality standards and shall in-
clude representation from the States and appropriate
political subdivisions within the air quality control re-
gion. After the initial two-year period the Administrator
is authorized to make grants to such agency in an amount
tip to three-fourths of the air quality planning program
costs of such agency.
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Chapter One The Clean Air Act
10
A in QOAMTY CONTROL REGIONS
SKC. 107. (a) Kncli State shall have the primary respon-
sibility for assuring air quality within tho entire geo-
graphic, area comprising such State by submitting an
implementation plan for such State which will specify
(he manner in which national primary and .secondary
ambient air quality standards will ho achieved and main-
tained within each ail'quality control region in such State.
(h) Kor purposes of developing and carrying out im-
plementation plans under section 110—
(I) an air quality control region designated under
this sod ion lie fore I lie dn I e of enactment of the Clean
Air Amendments of 1070, or a region designated
after such d ile under subsection (c), shall be an air
quality control region; and
(ii) the portion of such State which is not part of
any such designated region shall ho an air quality
control region, hut such portion may be subdivided
by the State into two or more air quality control
regions with the approval of the Administrator.
(c) The. Administrator shall, within 90 days after the
dnte of enactment of the Clean Air Amendments of 1970,
after consultation with appropriate State and Ircal au-
thorities, designate as an air quality contr~l region any
interstate area or major intrastate area which he deems
necessary or appropriate for the attainment and mainte-
nance of ambient air quality standards. The Administra-
tor shall immediately notify the fiovcrnors of the affected
States of any designation made under this subsection.
(d) (I) For the purpose of transportation control plan-
ning, part D (relating to nonnttninment), part C (relat-
ing to prevention of significant deterioration of air
quality), and for other purposes, each State, within one
hundred and twenty days after the date of enactment of
I lie Clean Air Act Amendments of 1077. shall submit to
the Administrator a list, together with a summary of the
available information, identifying those air quality con-
trol regions, or portions thereof, established purusant to
this section in such State which on the date of enactment
of the Clean Air Act Amendments of 1077—
(A) do not meet a national primary ambient air
quality standard for any air pollutant other than
sulfur dioxide, or particnlntc matter;
(R) do not meet, or in the. judgment of the State
may not in the time period required by an applicable
implementation plan attain or maintain, any national
primary ambient air quality standard for sulfur di-
oxide, or participate matter;
(C) do not meet a national secondary ambient air
quality standard;
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Chapter One The Clean Air Act
11
(O) cnnnot IKS classified under subparagrnph (B)
or ((!) of this paragraph on the Imsis of available in-
formation, for ambient nir quality levels for sulfur
oxides or partir.ulatc mutter; or
(10) have ambient air quality levels better than
any national primary or secondary air quality stand-
ard oilier Hum for sulfur dioxide or participate mat-
ter, or for which there is not sufficient data to be
classified under Hibparapraph (A) or (C) of this
paragraph.
(2) Not later than sixty days after submittal of the list
under paragraph (1) of this subsection the Administra-
tor shall promulgate each such list with such modifica-
tions as he deems necessary. Whenever the Administra-
tor proposes to modify a list submitted by a State, he
shall notify (he State and request all available data relat-
ing to such region or portion, and provide such State
with an opportunity to demonstrate why any proposed
modification is inappropriate.
(4) Any region or portion thereof which is not classi-
fied under subparagraph (B) or (C) of paragraph (1)
of this subsection for sulfur dioxide or particulate mat-
ter within one hundred and eighty days after enactment
of the. Clean A«r Act Amendments of 1977 shall be
deemed to be a region classified under subparagraph (D)
of paragraph (1) of this subsection.2
(f>) A State may from time to time review, and as ap-
propriate revise and rcmibmit, the list required under this
subsection. The Administrator shall consider and promul-
gate such revised list in accordance with this subsection.
(e)(l) Except as otherwise provided in paragraph
(2), the Governor of each State is authorized, with the
approval of the Administrator, to redesignate from time
to time the air quality control regions within such State
for purposes of efficient and effective air quality manage-
ment. Upon such redesignation, the list under subsection
(d) shall l>o modified accordingly.
(2) In the case of an air quality control region in a
State, or part of such region, which the Administrator
finds may significantly affect air pollution concentrations
in another State, the Governor of the State in which such
region, or part of a region, is located may redesignate
from time to time the boundaries of so much of such air
quality control region as is located within such State
only with the approval of the Administrator and with
the consent of all Governors of all States which the Ad-
ministrator determines may be significantly affected.
(.'I) No compliance date extension granted under sec-
tion 113(d)(.r>) (relating to conl conversion) shall cease
to 1)0. effective l>y reason of the regional limitation pro-
'Thli paragraph vaa apparent]/ Intended to be numbered paragraph
(3). See section 103 of Public Law 85-05.
CAA Coapliance/Enforceaent 1^22 Guidance Manual 1986
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Chapter One The Clean Air Act
12
vidcd in section 113(d) (5) if the violation of such limita-
tion is clue solely to a rcdcsignation of u region under this
subsection.
AIR QUALITY CRITERIA AND CONTROL TECHNIQUES
SEC. 108. (a) (1) For the purpose of establishing na-
tional primary and secondary ambient air quality stand-
ards, (tic Administrator shall within 30 days after the
date of enactment of the Clean Air Amendments of 1970
publish, and shall from time to time thereafter revise, a
list which includes i-ach air pollutant—
(A) emissions of which, in his judgment, cause or
contribute to nir pollution which may reasonably be
anticipated to endanger public health or welfare;
(B) the presence of which in the ambient air re-
sults from numerous or diverse mobile or stationary
sources; and
(C) for which air quality criteria had not been
issued l>eforc the date of enactment of the Clean Air
Amendments of 1070, but for which he plans to issue
air quality criteria under this sect ion.
(2) The Administrator shall issue air auality criteria
for an air pollutant within 12 months after he has in-
cluded such pollutant in a list under paragraph (1). Air
quality criteria for an air pollutant shall accurately re-
flect the latest scientific knowledge useful in indicating
the kind and extent of all identifiable effects on public
health or welfare which may be expected from the pres-
ence of such pollutant in the ambient air, in varying
quantities. The criteria for an air pollutant, to the extent
practicable, shall include information on—
(A) those variable factors (includingatmospheric
conditions) which of themselves or in combination
with other factors may alter the effects on public
health or welfare of such air pollutant;
(B) the types of air pollutants which, when pres-
ent in the Atmosphere,may interact with such pollut-
ant to produce an adverse effect on public health or
welfare; and
(C) any known or anticipated adverse effects on
welfare.
(b)(l) Simultaneously with the issuance of criteria
under subsection (a), the Administrator shall, after con-
sultation with appropriate advisory committees and Fed-
eral departments and agencies, issue to the States and.
appropriate air pollution control agencies information on
air pollution control techniques, which information shall
include data relating to the cost of installation and opera-
tion, energy requirements, emission reduction benefits,
and environmental impact of the emission control tech-
nology. Such information shall include such data as are
CAA Coapllance/Enforceaent 1-23 Guidance Manual 1986
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Chapter One The Clean Air ACL
13
available on available technology and alternative meth-
ods of prevention and control or air pollution. Such in-
formation shall also include data on alternative fuels,
processes, and operating methods which will result in
elimination or significant reduction of emissions.
(2) In order to assist in the development of informa-
tion on pollution control techniques, the Administrator
may establish a standing consulting committee for each
air pollutunt included in a list published pursuant to sub-
section (a) (1), which shall be comprised of technically
qualified individuals representative of State, and local
governments, industry, and the economic community.
Each such committee shall submit, as appropriate, to the
Administrator information related to that required by
paragraph (1).
(c) The Administrator shall from time to time review,
and, as appropriate, modify, and reissue any criteria or
information on control techniques issued pursuant to
this section. Not later than six months after the date of
the enactment of the Clean Air Act Amendments of 1077,
the Administrator shall revise and reissue criteria relat-
ing to concentrations of NO, over such period (not more
than three hours) as he deems appropriate. Such criteria
shall include a discussion of nitric and nitrous acids,
nitrites, nitrates, notrosamines, and other carcinogenic
and potentially carcinogenic derivatives of oxides of
nitrogen.
(d) The issuance of nir quality criteria and informa-
tion on air pollution control techniques shall be an-
nounced in the Federal Register and copies shall be mude
available to the general public.
(e) The Administrator shall, after consultation with
the Secretary of Transportation and the Secretary of
Housing and Urban Development and State and local of-
ficials and within 180 days after the enactment of this
subsection, and from time to time thereafter, publish
guidelines on the basic program elements for the plan-
ning process assisted under section 175 of part I). Such
guidelines shall include information on—
(1) methods to identify and evaluate alternative
planning and control activities;
(2) methods of reviewing plans on a regular basis
as conditions change or new information is
presented;
(3) identification of funds and other resources
necessary to implement the plan, including inter-
agency agreements on providing such funds and
resources;
(4) methods to assure participation by the public
in all phases of the planning process; ana
(5) such other methods as the Administrator de-
termines necessary to carry out a continuous plan-
ning process.
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Chapter One
The Clean Air Act
14
(f)(l) The Administrator shall publish nncl make
available to appropriate Federal agencies. States, and air
pollution control agencies, including agencies assisted
under section 175 within fl months after enactment of this
subsection for clauses (i), (ii), (iii).nnd (iv) of subpar-
agraph (A) and within one year after the enactment of
this subsection for the balance of this subsection (and
from time to time thereafter).
(A) information, prepared, as appropriate, in co-
operation with the Secretary of Transportation, re-
garding processes, procedures, and methods to re-
duce or control each such pollutant, including but
not limited to—
(i) motor vehicle emission inspection and
maintenance programs;
(ii) proprams to control vapor emissions
from fuel transfer and storage operations and
operations using solvents;
(iii) proprams for improved public transit;
(iv) proprams to establish exclusive, bus and
carpool lanes and area wide carpool programs:
(v) proprams to limit portions of road sur-
faces or certain sections of the metropolitan
areas to the use of common carriers, both as to
time and place;
(vi) programs for long-range transit improve-
ments involving new transportation policies ;ind
transportation facilities or major changes in ex-
isting facilities:
(vii) programs to con)ml oil-street parking:
(viii) programs to construct new parking
facilities and o^rate existing parking facilities
for the purpose of park and ride lots and fringe.
parking:
(ix) programs to limit portions of road sur-
faces or certain sections of the- metropolitan aren
to the use of nonmotomcd vehicles or pedestrian
use, l>oth as to time and place:
(x) provisions for employer participation in
programs to encourage cat-pooling, vanpool'mg,
mass transit, bicycling, and walking;
(xi) programs for secure bicycle storage fa-
cilities and other facilities, including bicycle
lanes, for the convenience and protection of bi-
cyclists, in Itoth public and private areas:
(xii) programs of staggered hours of work ;
(xiii) programs to institute road user charges.
tolls, or differential rates to discourage single
occupancy automobile trips;
(xiv) programs to control extended idling of
vehicles;
(xv) programs to reduce emissions by im-
provements in traflic flow;
CAA Coapllance/Eoforceaent1-25Guidance Manual 1986
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Chapter One The Clean Air Act
15
(xvi) programs for the conversion of fleet ve-
hicles to cleaner engines or fuels, or to otherwise
control fleet vehicle operations;
(xvii) programs for retrofit of emission de-
vices or controls on vehicles and engines, other
than light duty vehicles, not subject to regula-
tions under section 202 of title II of this Act;
and
(xviii) programs to reduce motor vehicle
emissions which arc caused by extreme cold start
conditions;
(B) information on additional methods or stra-
tegies that will contribute to the reduction of mobile
source related pollutants during periods in which
any primary ambient air quality standard will be
exceeded and during episodes for which an air pol-
lution alert, warning, or emergency has been
declared;
(C) information on other measures which may be
employed to reduce the impact on public health or
protect the health of sensitive or susceptible individ-
uals or groups; and
(D) information on the extent to which any proc-
ess, procedure, or method to reduce or control such
air pollutant may cause, an increase in the emissions
or formation of any other pollutant.
(2) In publishing such information the Administrator
shall also include an assessment of—
(A) the relative effectiveness of such processes,
procedures, and methods;
(B) the potential effect of such processes, proce-
dures, and methods on transportation system and the
provision of transj>ortation services; and
(C) the environmental, energy, and economic im-
pact of such processes, procedures, and methods.
NATIONAL AMBIENT AIR QTJAMTT STANDARDS
SEC. 109. (a) (1) The Administrator—
(A) within 30 days after the date of enactment of
the Clean Air Amendments of 1970, shall publish
proposed regulations prescribing a national pri-
mary ambient air quality standard and a national
secondary ambient air quality standard for each air
pollutant for which air quality criteria have been
issued prior to such date of enactment; and
(B) after a reasonable time for interested per-
sons to submit written comments thereon (but no
later than 00 days after the, initial publication of such
proposed standards) shall hy regulation promulgate
such proposed national primary and secondary am-
bient, nir quality standards with such modifications as
ho deems appropriate.
Co«pli«nce/Kiiforce«enc 1=26Guidance Manual 1986
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Chapter One The Clean Air Act
16
(2) With respect to any air pollutant for which air
qunlity criteria are issued after the date, of enactment of
the ("lean Air Amendments of 1070, the Administrator
shall publish, simultaneously with the issuance of such
criteria and information, proposed national primary and
secondary ambient air quality standards for any such pol-
lutant. Tne procedure provided for in paragraph (1) (B)
of this subsection shall apply to the promulgation of such
standards.
(h)(l) National primary ambient air quality stand-
ards, prescribed, under subsection (a) shall be ambient
air quality standards the attainment and maintenance
of winch in the judgment of the Administrator, based on
such criteria and allowing an adequate margin of safety,
are requisite to protect the public health. Such pri-
mary standards may be revised in the same manner as
promulgated.
(2) Any national secondary ambient air quality stand-
ard prescribed, under subsection (a) shall specify a level
of air quality the attainment and maintenance of which
in the judgment of the Administrator, based on such cri-
teria, is requisite to protect the public welfare from any
known or anticipated adverse effects associated with the
presence of such air pollutant in the ambient air. Such
secondary standards may be revised in the same manner
as promulgated.
(c) The Administrator shall, not later than one year
after the date of the enactment of the Glenn Air Act
Amendments of 1077, promulgate a national primary
ambient air quality standard for NO, concentrations
over a period of not more than 3 hours unless, based on
the criteria issued under section 108(c), he finds that
there is no significant evidence that such a standard for
such a period is requisite to protect public health.
(d) (1) Not later than December 31. 1080, and at five-
year intervals thereafter, the Administrator shall com-
plete, a thorough review of the criteria published under
section 108 and the national ambient air quality stand-
ards promulgated under this section and shall make such
revisions in such criteria and standards and promulgate
such new standards as may be appropriate in accordance
with section 108 and subsection (h) of this section. The
Administrator mav review and revise criteria or promul-
gate new standards earlier or mom frequently than re-
quired under this paragraph.
(2) (A) The Administrator shall appoint an inde-
pendent scientific review committee composed of seven
members including at least one member of the National
Academy of Sciences, one physician, and one person rep-
resenting State air pollution control agencies.
(H) Not later than January 1, 1080. and at five-year
intervals thereafter, the committee referred to in sub-
paragraph (A) shall complete, a review of the, criteria
CAA Coapliance/Eoforceoeat 1-27 Guidance Manual 1986
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Chapter One The Clean Air Act
17
published under section 108 and the national primnry
and secondary ambient air quality standards promul-
gated under tnis section and shall recommend to the Ad-
ministrator any new national ambient air quality
standards and revisions of existing criteria and standards
as may be appropriate under section 108 and subsection
(b) or this section.
(C) Such committee shall also (i) advise the Adminis-
trator of areas in which additional knowledge is required
to appraise the adequacy and basis of existing, new, or
revised national ambient air quality standards, (ii) de-
scribe the research efforts necessary to provide the re-
quired information, (iii) advise the Administrator on the
relative contribution to air pollution concentrations of
natural as well as anthropogenic activity, and (iy) advise
the Administrator of any adverse public health, welfare,
social, economic, or energy effects which may result from
various strategies for attainment and maintenance of
such national ambient air quality standards.
IMPLEMENTATION PLANS
SEC. 110. (a) (1) Each State shall, after reasonable no-
tice and public hearings, adopt and submit to tlie Ad-
ministrator, within nine months after the promulgation
of a national primary ambient air quality standard (or
any revision thereof) under section 109 for any air pol-
lutant, a plan which provides for implementation, main-
tenance, and enforcement of such primary standard in
each air quality control region (or portion thereof)
within such State. In addition, such State shall adopt
and submit to the Administrator (either as a part of a
plan submitted under the preceding sentence or sep-
arately) within nine months after the promulgation of.
a national ambient air quality secondary standard (or
revision thereof), a plan which provides for implemen-
tation, maintenance, and enforcement of such secondary
standard in each air quality control region (or portion
thereof) within such State. Unless a separate public
hearing is provided, each State shall consider its plan
implementing such secondary standard at the hearing
required by tne first sentence of this paragraph.
(2) The Administrator shall, within four months
after the date required for submission of a plan under
paragraph (1), approve or disapprove such plan for
each portion thereof. The Administrator shall approve
such plan, or any portion thereof, if he determines that it
was adopted after reasonable notice and hearing and
that—
(A) except as may be provided in suhparagraph
(I)(i) in the case, of a plan implementing a na-
tional primary ambient air quality standard, it pro-
CAA Goapllance/Eaforceaeat 1-28 Guidance Manual 1986
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Chapter One The Clean Air Act
18
vides for the attainment of sucli primary standard
as ezpeditiously as practicable but (subject to sub-
section (e)) in no case later than three years from
the date of approval of such plan (or any revision
thereof to take account of a revised primary stand-
ard) ; and (ii) in the case of a plan implementing
a national secondary ambient air quality standard,
it specifies a reasonable time at which such second-
ary standard will be attained;
(B) it includes emission limitations, schedules,
and timetables for compliance with such limitations,
and such other measures as may be necessary to in-
sure tiltainment and maintenance of such primary
or secondary standard, including, but not limited to
tniu.sportation controls, air quality maintenance
plans, and p reconstruct ion review of direct sources
of air pollution as provided in subparagraph (D);
(C) it includes provision for establishment and
operation of appropriate devices, methods, systems,
and procedures necessary to (i) monitor, compile,
and analyze data on ambient air quality and, (ii)
upon request, make such data available to the Ad-
ministrator;
(D) it includes a program to provide for the en-
forcement of emission limitations and regulation of
the modification, construction, and operation of any
stationary source, .including a permit program as
required in parts C and D and a permit or equivalent
program for any major emitting facility, within
such region as necessary to assure (i) that national
ambient air quality standards are achieved and main-
tained, and (ii) a procedure, meeting the require-
ments of paragraph (4), for review (prior to con-
struction or modification) of the location of new
sources to which a standard of performance will
apply;
(E) it contains adequate provisions (i) prohibit-
ing any stationary source within the State from
emitting any air pollutant in amounts which will
(T) prevent attainment or maintenance by any other
State of any such national primary or secondary
ambient air quality standard, or (IT) interfere with
measures required to 1m included in the applicable
implementation plan for any other State under part
C to prevent significant deterioration of air quality
or to protect visibility, and (ii) insuring compliance
with the requirements of section 126, relating to in-
terstate pollution abatement;
(F) it provides (i) necessary assurances that the
State will have adequate personnel, funding, and
authority to carry out such implementation plan,
(ii) requirements for installation of equipment by
owners or operators of stationary sources to monitor
CAA Coapliance/Enforceoent 1-29 Guidance Manual 1986
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Chapter One The Clean Air Act
19
emissions from such sources, (iii) for periodic re-
ports on the nature and amounts of such emissions;
(iv) that such reports shall be correlated \>y the
State agency with any emission limitations or stand-
ards established pursuant to this Act, which reports
shall be available at reasonable times for public in-
spection; (v) for authority comparable to that
in section 3(KJ, and adequate contingency plans to
implement such authority; and (vi) requirements
that the State comply with the requirements respect-
ing State boards under section 1*28;
(G) it provides, to the extent necessary and prac-
ticable, for periodic inspection and testing of motor
vehicles to enforce compliance with applicable emis-
sion standards;
(II) it provides for revision, after public hearing,
of such plan (i) from time to time as may bo. nec-
essary to take account of revisions of such national
primary or secondary ambient air quality standard
or the availability of improved or more expeditious
methods of achieving such primary or secondary
standard; or (ii) except as provided in paragraph
(3)(C), whenever the Administrator finds on the
basis of information available to him that the plan
is substantially inadequate to achieve the national
ambient air quality primary or secondary standard
which it implements or to otherwise comply with any
additional requirements established under the Clean
Air Act Amendments of 1977;
(I) it provides that after June 30, 1070, no major
stationary source shall be constructed or modified in
any nonattainment area (as defined in section 171
('2)) to which such plan applies, if the emissions
from such facility will cause or contribute to con-
centrations of any pollutant for which a national
ambient air quality standard is exceeded in such area,
unless, as of the time of application for a permit for
such construction or modification, such plan meets
the requirements of part I) (relating to nonattain-
ment areas);
(J) it meets the requirements of section 121 (re-
lating to consultation), section 127 (relating to pub-
lic notification), pail C (relating to prevention of
significant deterioration of air quality and visability
protection); and
(K) it requires the owner or operator of each ma-
jor stationary source to pay to the permitting au-
thority as a condition of any permit required under
this Act a fee sufficient to cover—
(i) the reasonable costs of reviewing and act-
ing upon any application for such a permit, and
CAA Compliance/Enforcement 1-30 Guidance Manual 1986
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Chapter One The Clean Air Act
20
(ii) if the owner or operator receives a per-
mit for such source, whether before or after the
(lute of enactment of this subparapraph, the
reasonable costs (incurred after such date of
enactment) of implementing and enforcing the
terms and conditions of any such permit (not
including any court costs or other costs asso-
ciated with any enforcement action).
(A) (A) The Administrator shall approve revision of
any implementation plan applicable to an air quality con-
trol region if he determines mat it meets the requirements
of paragraph (2) and has l>een adopted by the State after
reasonable not ire aiul public hearings.
(B) As soon as practicable, the Administrator shall,
consistent with the purposes of this Act and the Energy
Supply and Environmental Coordination Act of 1974,
review each State's applicable implementation plans and
report to the State on whether such plans can be revised
in relation to fuel burning stationary sources (or persons
supplying fuel to such sources) without interfering with
the attainment and maintenance of any national ambient
air quality standard within the period permitted in this
section. It the Administrator determines that any such
plan can be revised, he shall notify the State that a plan
revision may be submitted by the State. Any plan revision
which is submitted by the State shall, after public notice
and opportunity for public hearing, be approved by the
Administrator if the revision relates only to fuel burning
stationary sources (or persons supplying fuel to such
sources), and the plan as revised complies with para-
graph (2) of this subsection. The Administrator shall ap-
prove or disapprove any revision no later than three
months after its submission.
(C) Neither tho Stato, in the ooeo of ft plan (or portion
thereof) approved under thio oubocctiont nor the Ad
miniatratof in the caoo ol n plan (or portion thereof)
promulgated under cubcootion (o)f chall bo required to
rovino nn applicable implementation plan booaufio ono or
moro onamptionfi under coot ion 118 (relating to Federal
facilities) t enforcement ordoro undo ncotion 113(d)t out)
ponr.iono undor cootion 110(f) or (p) (relating to tempo
r*ry onargy or economic outhority) OP ordom undoP nofl"
tion 110 (relating to primary nonforrouo emoltcro) have
l)con granted; if on oh plan would have mot tho require-
monto of thin ncotinn if no ouch OMomptionnj ordorot en-
^AMt<'^^ ^^ •»<» •! > <* •* *w>g» I* J ItAj* (wanfrArl
(C) Neither the State, in the case of a plan (or
portion thereof) approved under this subsection, nor
the Administrator, in the case of a plan (or portion there-
of) promulgated under subsection (c), shall be required
to revise an applicable implementation plan because one
or more exemptions under section 118 (relating to Fed-
eral facilities), enforcement orders under section 113(d),
siapcntions under section 110 (f\ or (g) (relating to
CAA Compllance/BnforceiBeat 1-31 Guidance Manual 1986
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Chapter One The Clean Air Act
21
temporary energy or economic authority), orders under
section 119 (relating to primary non/errous smelters'),
or extensions of compliance in decrees entered under sec-
tion ll,i(e) (relating to iron- and steel-producing opera-
tions) have been granted, if such plan would have met
the requirements of this section if no such exemptions,
orders, or extensions had been granted.
(D) Any applicable implementation plan for which
an attainment date later than December 31, 1982, is pro-
vided pursuant to section 172(a)(2) shall be revised by
July 1, 1979, to include the comprehensive measures and
requirements referred to in subsection (c)(5)(B).
(4) The procedure referred to in paragraph (2)(D)
for review, prior to construction or modification, of the
location of new sources shall (A) provide for adequate
authority to prevent the construction or modification of
any new source to which a standard of performance un-
der section 111 will apply at any location which the
State determines will prevent the attainment or main-
tenance within any air quality control region (or portion
thereof) within such btate of a national ambient air
quality primary or secondary standard, and (13) require
that prior to commencing construction or modification
of any such source, the owner or operator thereof shall
submit to such State such information as may be neces-
sary to permit the State to make a determination under
clause (A).
(5)(A)(i) Any State may include in a State imple-
mentation plan, but the Administrator may not require as
a condition of approval of such plan under this section,
any indirect source review program. The Administrator
may approve and enforce, as part of an applicable imple-
mentation plan, an indirect source review program which
the State chooses to adopt and submit as part of its
plan.
(ii) Except as provided in subparagraph (B), no plan
promulgated by the Administrator shall include any in-
direct source review program for any air quality con-
trol region, or portion thereof.
(iii) Any State may revise an applicable implementa-
tion plan approved under section 110(a) to suspend or
revoke any such program included in such plan, provided
that such plan meets the requirements of this section.
(B) The Administrator shall have the authority to
promulgate, implement and enforce regulations under
section 110(c) respecting indirect source review pro-
grams which apply only to federally assisted highways,
airports, and other major federally assisted indirect
sources and federally owned or operated indirect sources.
(C) For purposes of this paragraph, the term "in-
direct source" means a facility, building, structure, instal-
lation, real property, road, or highway which attracts,
or may attract, mobile sources of pollution. Such term
includes parking lots, parking garages, and other facil-
CAA CoBpliance/Bnforceoeae~~1-32Guidance Manual 1986
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Chapter One The Clean Air Act
22
itics subject to any measure for management of parking
supply (within the. moaning of section 110(c)(2)(D)
(ii)), including regulation of existing off-street parking
but such term does not include new or existing cm-street
parking. Direct omissions sources or facilities at, within,
or associated with, any indirect source shall not be deemed
indirect sources for the purpose of this paragraph.
(D) For purposes of this paragraph the term "in-
direct source review program" means the facility-by-
facility review of indirect sources of air pollution,
including such measures as are necessary to assure, or
assist in assuring, that a new or modified indirect source
will not attract mobile sources of air pollution, the emis-
sions from which would cause or contribute to aii pollu-
tion concentrations—
(i) exceeding any national primary ambient air
quality standard for a mobile source-related air pol-
lutant after the primary standard attainment date,
or
(ii) preventing maintenance of any such standard
after such date.
(E) For purposes of this paragraph and paragraph
(2) (B), the term "transportation control measure does
not include any measure which is an "indirect source re-
view program."
(6) No State plan shall be treated as meeting the re-
quirements of tins section unless such plan provides that
in the case of any source which uses a supplemental, or
intermittent control system for purposes of meeting the
requirements of an order under section 113(d) or section
119 (relating to primary nonferrous smelter orders), the
owner or operator of such source may not temporarily
reduce the pay of any employee by reason of the use of
such supplemental or intermittent or other dispersion
dependent control system.
(b) The Administrator may, wherever he determines
necessary, extend the period for submission of any plan
or portion thereof which implements a national second-
ary ambient air-quality standard for a period not to ex-
ceed eighteen months from the date otherwise required
for submission of such plan.
(c)(l) The Administrator shall, after consideration
of any State hearing record, promptly prepare find pub-
lish proposed regulations setting forth an implementation
plan, or portion thereof, for a State if—
(A) the State fails to submit an implementation
plan which meets the requirements of this section,
(R) the plan, or any portion thereof, submitted
for such State is determined by the Administrator
not to be in accordance with the requirements of this
section, or
(C) the State fails, within 60 days after notifica-
tion by the Administrator or such longer period as
he may prescribe, to revise an implementation plan
CAA Compliance/Enforcement 1-33 Guidance Manual 1986
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Chapter One The Clean Air Act
23
as required pursuant to n provision of its plnn re-
ferred to in subsection (n) (2) (II).
If such State held no public hearing associated with re-
spect to such plan (or revision thereof), the Administra-
tor shall provide opportunity for siirh hearing within
such State on any proposed regulation. The Adminis-
trator shall, within six months after the date required
for submission of such plnn (or revision thereof), pro-
mulgate any such regulations unless, prior to such pro-
mulgution, such State has adopted and submitted a plan
(or revision) which the Administrator determines to be
in accordance with the requirements of this section. Not-
withstanding the preceding sentence, any portion of a
plan relating to any measure described in the first sen-
tence of section 121 (relating to consultation) or the
consultation process required under such section 121
shall not be required to be promulgated before the date
eight months after such date required for submission.
(2) (A) The Administrator shall conduct a study and
shall submit a report to the Committee on Interstate and
Foreign Commerce of the United States House of Repre-
sentatives and the Committee on Public Works of the
United States Senate not later than three months after
date of enactment of this paragraph on the necessity of
parking surcharge, management of parking supply, and
preferential bus/carpool lane regulations as part of the
applicable implementation plans required under this sec-
tion to achieve and maintain national primary ambient
air quality standards. The study shall include an assess-
ment of the economic impact of such regulations, consid-
eration of alternative means of reducing total vehicle
miles traveled, and an assessment of the impact of such
regulations on other Federal and State programs dealing
with energy or transportation. In the course of such
study, the Administrator shall consult with other Federal
officials including, but not limited to, the Secretary of
Transportation, the Federal Energy Administrator, and
the Chairman of the Council on Knvironmcntnl Quality.
(B) No parking surcharge regulation may be required
by the Administrator under paragraph (1) of this sub-
section as a part of an applicable implementation plan.
AH parking surcharge regulations previously required by
the Administrator shall be void upon the date of enact-
ment of this subparagraph. This subparagraph shall not
prevent the Administrator from approving parking sur-
charges if they are adopted and submitted by a State as
part of an applicable implementation plan. The Admin-
istrator may not condition approval of any implementa-
tion plan submitted by a State on such plan's including
a parking surcharge regulation.
(C) The Administrator is authorized to suspend until
January 1, 1075, the effective date or applicability of
any regulations for the management of parking supply
CAA Conpllance/Baforceaent 1-34 Guidance Manual 1986
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Chapter One The Clean Air Act
24
or any requirement (lint such regulations l>e a part of an
npplirnl>lr implementation plan approved or promul-
gated under tliis section. The exercise of the authority
un
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Chapter One The clean Air Ace
(R) gas rationing which HIP. Administrator finds
would have seriously disruptive and widespread eco-
nomic or social effects, or
(C) (he reduction of the supply of on-strcct park-
mg spaces,
tin1, Governor of the State inny, after notice and oppor-
tunity for public hearing, temporarily stipend Midi
measurers notwithstanding the requirements of this section
until January 1, 11)71), or the date on which a plan revision
under section 110(u) (-J) (I) is suluuitted. whichever is
earlier. No such suspension shall he granted unless the
State agrees to prepare, adopt, and Milmiit sucli plan re-
vision as determined by the Administrator.
(5) (A) Any measure in an applicable implementation
plan which requires a toll or other charge for the use of
a bridge located entirely within one city shall Im elimi-
nated from such plan by the Administrator upon appli-
cation by the (iovcrnor of the Slate, which application
shall include a certification by the Governor that lit; will
revise such plan in accordance with subparugraph (B).
(B) In the case of any applicable implementation plan
with respect to which a measure hus been eliminated un-
der subpuragrapli (A), such plan shall, not later than
one year after the date of the. enactment of this subpara-
gruph, he revised to include comprehensive measures
(including the written evidence required by part D), to:
(i) establish, expand, or improve public transpor-
tation measures to meet basic, transportation needs,
us exneditiously as is practicable; und
(ii) implement transportation control measures
necessary to attain and maintain national ambient
air quality standards,
and such revised plan shall, for the purpose of implement-
ing such comprehensive public transportation measures,
include requirements to use (insofar as is necessary)
Federal grants, State or local funds, or nny combination
of such grants and funds us may be consistent with the
terms of the legislation providing such grants and funds.
Such measures shall, us a substitute for the tolls or
charges eliminated under subparagruph (A), provide
for emissions reductions equivalent to the reductions
which may reasonably be expected to be achieved through
the use of the tolls or charges eliminated.
(("') Any revision of any implementation plan for
purposes of meeting the requirements of subparagraph
(B) shall IK; siihmitti'd in coordination with any plan
revision required under part 1).
(d) For purposes of this Act, an applicable imple-
mentation plan is the implementation plan, or most recent
revision thereof, which has been approved under subsec-
tion (u) or promulgated under subsection (c) and which
implements the requirements of this section.
(«'•) (1) lrpon application of a Governor of a State at
the time of Mihmission of any plan implementing a
CAA co«piiance/EQforce«eatpjg Guidance kaoual
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Chapter One
The Clean Air Act
26
national ambient air Quality primary standard, the Ad-
ministrator nmy (subject to paragraph (2)) extend the
three-year period referred to in subsection (a) (2) (A)
(i) for not more than two years for an air quality control
region if after review of such plan the Administrator
determines that—
(A) one or more emission sources (or classes of
moving sources) are unable to comply with the re-
quirements of such plan which implement such pri-
mary standard because the necessary technology or
other alternatives are not available or will not be
available soon enough to permit compliance within
such three-year period, and
(B) the State has considered and applied as a
part of its plan reasonably available alternative
means of attaining such primary standard and has
justifiably concluded that attainment of such pri-
mary standard within the three years cannot be
achieved.
(2) The Administrator may grant an extension under
paragraph (1) only if he determines that the State plan
provides for—
(A) application of the requirements of the plan
which implement such primary standard to all emis-
sion sources in such region other than the sources
(or classes) described in paragraph (1)(A) within
the three-year period, and
(B) such interim measures of control of the
sources (or classes) described in paragraph (1)(A)
as the Administrator determines to be reasonable
under the circumstances.
(f) (1) TTpon application by the owner or operator of
a fuel burning stationary source, and after notice and
opportunity for public hearing, the Governor of the
State in which such source is located may petition the
President to determine that a national or regional energy
emergency exists of such severity that—
(A) a temporary suspension of any part of the
applicable implementation plan may be necessary,
and
(B) other means of responding to the energy
emergency may be inadequate.
Such determination shall not be delegable by the Presi-
dent to nny other person. If the President determines
that a national or regional energy emergency of such
severity exists, a temporary emergency suspension of
any part of an applicable implementation plan adopted
by the State mav be issued by the Governor of any State
covered by the President's determination under the con-
dition specified in paragraph (2) and may take effect
immediately.
(2) A temporary emergency suspension under this
subsection shnll be issued to a source only if the Governor
of such State finds that—
CAA Compliance/Enforcement 1-37 Guidance Manual 1986
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Chapter One __ _,
' . The Clean Air Act
27
(A) there exists in the vicinity of such source a
temporary energy emergency involving high levels
of unemployment or loss of necessary energy sup-
plies for residential dwellings; nnd
(B) such unemployment or loss can he totally or
partially alleviated by such emergency suspension.
Mot more than one such suspension may be issued for any
source on the basis of the snme set of circumstances or on
the hasis of the snme emergency.
(3) A temporary emergency suspension issued by a
Governor under this subsection shall remain in effect for
a maximum of four months or such lesser period as may
he specified in a disapproval order of the Administrator,
if nny I he Administrator may disapprove such suspen-
sion if he determines that it does not meet the require-
ments of paragraph (2).
(4) This subsection shall not apply in the case of a plan
provision or requirement promulgated by the Adminis-
trator under subsection (c) of this section, but in any
such case the President may grant a temporary emer-
gency suspension for a four month period of any such
provision or requirement if he makes the determinations
^.^'"g3 specified in paragraphs (1) and (2).
(5) I he Governor may include in any temporary
emergency suspension issued under this subsection a pro-
vision delaying for a period identical to the period of
such suspension any compliance schedule (or increment
of progress) to which such source is subject under section
110, os in effect More the date of the enactment of this
paragraph or section 113(d) of this Act, upon a find-
l?Lr. /su°k source 1S unable to comp'y with s»cf»
schedule (or increment) solely because of the conditions
on the basis of which a suspension was issued under this
subsection.
=,,i(g)• L1 \\n fte C^f °-f ?n* Stftte which ha8 adopted and
subm.tted to the Administrator a proposed plan revision
which the State determines—
(A) meets the requirements of this section, and
(H) is necessary (i) to prevent the closing for
one year or more of any source of air pollution, and
(11) to prevent substantial increases in unemploy-
ment which would result from such closing, and
which the Administrator has not approved or disap-
proved under this section within the required four month
period, the Governor may issue a temporary emergency
suspension of the part of the applicable implementation
plan for such State which is proposed to be revised with
respect to such source. The determination under subpara-
graph (B) may not be made with respect to a source
which would closo without regard whether or not the pro-
posed plan revision is approved.
CAA Coapllance/Bnforceaent1-38
Guidance Manual 1986
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Chapter One The Clean Air Act
28
(2) A temporary emergency suspension issued hy a
Governor under tins subsection shall remain in effect for
a intixiiniiin of four moulds or such lesser period as may
be specified in n disapproval order of the Administrator.
The Administrator may disapprove such suspension if
hi- determines that it does not meet, the requirements of
this subsection.
(,'i) The (iovcinor may include in any temporary
emergency suspension issued under this subsection a pro-
vision delaying for n period identical to the period of
such suspension any compliance schedule (or increment
of progress) to which such source is subject under section
II!) us in elicet before the dale of (he enactment of this
paragraph, or under section 113(d) upon n finding that
sui-li si.imi: is unalilc to comply with such schedule (or
increment) solely because of the conditions on the basis
of which n suspension was issued under this subsection.
(h) (1) Not Inter thnn one year after the date of en-
actment of the rican Air Act Amendments of 1977 and
annually thereafter, the Administrator shall assemble
and publish a comprehensive document for each State
setting forth all requirements of the applicable imple-
mentation plan for such State and shall publish notice
in the Federal Register of the availability of such docu-
ments. Each such document shall be revised as frequently
as practicable but not less often than annually.
(•2) The Administrator may promulgate such regula-
tions as may be reasonably necessary to carry out the
purpose of this subsection.
(i) Except for a primary nonferrous smelter order
under section 119, a suspension under section 110 (f) or
(g) (relating to emergency suspensions), an exemption
under section 118 (relating to certain Federal facilities),
nn order under section 113(d) (relating to compliance
orders), a plan promulgation under section 110(c), or a
plan revision under section 110(a) (3), no order, suspen-
sion, plan revision, or other action modifying any re-
quirement, of an applicable implementation plan may be
taken with respect to any stationary source by the State
or by the Administrator.
(]') As a condition for issuance of any permit required
under tliis title, the owner or operator of each new or
modified stationary source which is required to obtain
such n permit must show to the satisfaction of the per-
mitting authority that the technological system of con-
tinuous emission reduction which is to be used will en-
able such source to comply with the standards of per-
formance which are to apply to such source and that the
construction or modification and operation of such source
will be in compliance with all other requirements of this
Act.
CAA Coopllance/EnforceoenC 1-39 Guidance Manual 1986
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Chapter One The Clean Air Ace
29
STANDARDS OF I'EKFORMANCE FOR NEW STATIONARY SOURCES
Stc. 111. (a) For purposes of this section:
(1) The term "standard of performance" means—
(A) with respect to any air pollutant emitted
from a category of fossil fuel fired stationary
sources to which subsection (L>) applies, a
standard—
(i) establishing allowable emission limi-
tations for such category of sources, and
(ii) requiring the achievement of a per-
centage reduction in the emissions from
such category of sources from the emissions
which would have resulted from the use of
fuels which are not subject to treatment
prior to combustion,
(B) with respect to any air pollutant emitted
from a category of stationary sources (other
than fossil fuel fired sources) to which subsec-
tion (b) applies, a standard such as that referred
to in subparagraph (A) (i); and
(C) with respect to any air pollutant emitted
from a particular source to which subsection (d)
applies, a standard which the State (or tlm Ad-
ministrator under the conditions specified in
subsection (d)(2)) determines is applicable to
(hat source and which reflects the decree of
emission reduction achievable through the ap-
plication of the best system of continuous emis-
sion reduction which (taking into consideration
the cost of achieving such emission reduction,
and any nonair quality health and environmen-
tal impact and energy requirements) the Ad-
ministrator determines has been adequately
demonstrated for that category of sources.
tor the purpose of subparagraphs (A)(i) and (ii) and
(l»), a standard of performance shall reflect the degree
of emission limitation and the percentage reduction
achievable through application of the best technological
system of continuous emission reduction which (taking
into consideration the cost of achieving such emission
reduction, any nonair quality health and environmental
impact and energy requirements) the Administrator de-
termines has been adequately demonstrated. For the pur-
pose of subparapraph (l)(A)(ii), any cleaning of the
fuel or reduction in the pollution characteristics of the
fuel after extraction and prior to combustion may be
credited, as determined under regulations promulgated
by the Administrator, to a source which burns such fuel.
(2) The term "new source" means any stationary
source, the construction or modification of which is
commenced after the publication of regulations (or.
CAA Conpliance/Koforceaeat 1-40 Guidance Manual 1986
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Chapter One The Clean Air Act
30
if earlier, proposed reputations) prescribing a
standard of performance under this section which
will ho applicable to such source.
(3) The term "stationary source" means any build-
ing, structure, facility, or installation which emits
or inny emit nny nir pollutant.
(4) The term "modification" means nny physical
change, in, or change in the method of operation of,
a stationary source which increases the amount of
any air pollutant emitted hy snch source or which
results in the emission of any air pollutant not pre-
viously emitted.
(5) The term "owner or operator" means any per-
son who owns, leases, operates, controls, or supervises
a stationary source.
(6) The term "existing source" means nny station-
ary source other than a new source.
(7) The term "technological system of continuous
emission reduction" means—
(A) a technological process for production or
operation by any source which is inherently low-
polluting or nonpolluting. or
(B) a technological system for continuous re-
duction of the pollution generated by a source.
before such pollution is omitted into the ambient
air, including precombnstion cleaning or treat-
ment of fuels.
(fi) A conversion to coal (A) by reason of an order
under section 2(a) of the Energy Supply and En-
vironmental Coordination Act of 1074 or any amend-
ment thereto, or any subsequent enactment which
supersedes such Act. or (B) which qualifies under
section 113(d)(5)(A)(ii) of this Act. shall not !>c
deemed to Iw a modification for purposes of para-
graphs (2) and (4) of this subsection.
(b)(1)(A) The Administrator shall, within 90 days
after the date of enactment of the Clean Air Amend-
ments of 1070. publish (and from time to time thereafter
shall revise) a list of categories of stationary sources. He
shall include a category of sources in such list if in his
judgment it causes, or contributes significantly to, air
pollution which may reasonably be anticipated to en-
danrrer nublic health or welfare.
(B) Within 120 davs after the inclusion of a catecrory
of stationary sources in a list under subparagraph (A),
the. Administrator shall publish proposed regulations.
establishing Federal standards of performance for new
sources within such category. The Administrator shall
afford interested persons an opportunity for written
comment on such proposed regulations. After consider-
ing such comments, he shall promulgate, within 90 davs
after such publication, such standards with such modi-
CAA Coapliance/Enforceaent 1-41 Guidance Manual 1986
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Chapter One The Clean Air Act
31
fications as he. deems appropriate. The Administrator
shall, at least every four years, review and, if appro-
priate, revise such standards following the procedure
required by this subsection for promulgation of such
standards. Standards of performance or revisions thereof
shall become effective upon promulgation.
(2) The Administrator may distinguish among classes,
types, and sizes within categories of new sources for the
purpose of establishing such standards.
(3) The Administrator shall, from time to time, issue
information on pollution control techniques for cnte-
gories of new sources and air pollutants subject to the
provisions of this section.
(4) The, provisions of this section shall apply to any
new source owned or operated by the United States.
(5) Except as otherwise authorized under subsection
(h). nothing in this section shall be construed to require.
or to authorize, the Administrator to require, any new or
modified source to install and operate any particular
technological system of continuous emission reduction to
comply with any new source standard of performance.
(6) The revised standards of performance required
by enactment of subsection (a)(l)(A) (i) and (ii) shall
be promulgated not later than one year after enact-
ment of this paragraph. Any new or modified fossil fuel
fired stationary source which commences construction
prior to the date of publication of the proposed revised
standards shall not he required to comply with such
revised standards.
(c) (1) Each Stntc may develop and submit to the Ad-
ministrator a procedure for implementing and enforcing
standards of performance for new sources located in such
State. If the Administrator finds the State procedure is
adequate, he shall delegate to such State any authority
he has under this Act to implement and enforce such
standards.
(2) Nothing in this subsection shall prohibit the Ad-
ministrator from enforcing nny applicable standard of
performance under this section.
(d)(l) The Administrator shall prescribe regulntions
which shall establish a procedure similar to that provided
by section 110 under which each State shall submit to
the Administrator a plan which (A) establishes stand-
ards of performance for any existing source for any air
pollutant (i) for which air quality criteria have not'been
issued or which is not included on a list published under
section 108(a) or 112(b)(l)(A) but (ii) to which a
standard of performance under subsection (b) would
apply if such existing source were a new source, and
(B) provides for the implementation and enforcement
of such standards of performance. Regulations of the
Administrator under this paragraph shall permit the
CAA Coapllance/Koforceaeat 1-42 Guidance Manual 1986
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Chapter One The Clean Air Act
32
State in applying n standard of porforrnnnro to any
particular source under a plan submitted under this
paragraph to take into consideration, among other fac-
tors, the remaining useful life of the existing source to
which such standard applies.
(2) The Administrator shall have the snino authority—
(A) to prescribe a plan for a State in cnsos wh'cre
the State fails to submit, a satisfactory plan ns he
would have, under section 110(c) in the case of fail-
ure to submit an implementation plan, nnd
(B) to enforce the provisions of such plan in cases
where the. State fails to enforce them as he would
have under sections 11.1 and 114 with respect to an
implementation plan. In promulgating a standard of
performance under a plan prescribed under this
paragraph, the Administrator shall take into con-
sideration, among other factors, remaining useful
lives of the sources in the category of sources to
which such standard applies.
(e) After the effective date of standards of perform-
ance promulgated under this section, it shall be unlawful
for any owner or operator of any new source to operate
such source in violation of any standard of performance
applicable to such source.
(f) (1) Not later than one year after the date of enact-
ment of this subsection, the Administrator shall promul-
gate regulations listing under subsection (b) (1) (A) the
categories of major stationary sources which are not on
the date of the enactment of this subsection included on
the list required under subsection (b)(l)(A). The Ad-
ministrator shall promulgate regulations establishing
standards of performance for the percentage of such
categories of sources set forth in the following table
before the expiration of the corresponding period set
forth in such table:
Prrlnrt hy which stand
Percentage of uonrce categories re- S'lMTrV.^!?""".^
quired to he Hated for which stand- is rrquirrd to h<> pro.
ards must be established: muicntwi:
26 2 years.
75 3 years.
100 4 years.
(2) In determining priorities for promulgating stand-
ards for categories of major stationary sources for the
purpose of paragraph (1), the Administrator shall con-
sider—
(A) the quantity of air pollutant emissions which
each such category will emit, or will be designed to
emit;
(B) the extent to which each such pollutant may
reasonably be anticipated to endanger public health
or welfare; and
CAA Compliance/Enforcement 1-43 Guidance Manual 1986
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Chapter One The Clean Mr Act
33
(C) the mobility and competitive nature of i-ach
such category of sources and the consequent, need
for nationally applicable new source standards of
performance.
(3) Before promulgating any regulations under this
subsection or listing any category of major stationary
sources as required tinder this subsection, the Adminis-
trator shall consult with appropriate representatives of
the Governors and of State air pollution control agen-
cies.
(g) (1) Upon application hy the Governor of a State
showing that the Administrator has failed to specify in
regulations under subsection (f)(l) any category of
major stationary sources required to be specified under
such regulations, the Administrator shall revise such
regulations, to specify any such category.
(2) Upon application of the Governor of a State.
showing that any category of stationary sources which
is not included in the list under subsection (b)(l)(A)
contributes significantly to air pollution which may
reasonably be anticipated to endanger public health or
welfare (notwithstanding that such category is not a
category of major stationary sources), the Administrator
shall revise such regulations to sjnicify such category of
stationary sources.
(3) Upon application of the Governor of a State
showing that the Administrator has failed to npply
properly the criteria required to be considered under sub-
section (f)(2), the Administrator shall revise the list,
under subsection (b)(l)(A) to apply properly such
criteria.
(4) Upon application of the Governor of a State
showing that—
(A) a new, innovative, or improved technology or
process which achieves greater continuous emission
reduction has been adequately demonstrated for any
category of stationary sources, and
(H) as a result of such technology or process, the
new source standard of performance in effect under
subsection (b) for such category no longer reflects
the greatest degree of emission limitation achiev-
able through application of the best technological
system of continuous emission reduction which (tak-
ing into consideration the cost of achieving such
emission reduction, and any non-air quality hcnlth
and environmental impact and energy requirements)
has been adequately demonstrated.
the Administrator shall revise such standard of perform-
ance for such category accordingly.
(5) Upon application by the Governor of a State show-
ing that the Administrator has failed to list any air pol-
lutant which causes, or contributes to, air pollution which
CAA Coapllance/Bnforceaent 1^44 Guidance Manual 1986
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Chapter One
The Clean Air Act
34
may reasonably bo anticipated to result in an increase
in mortality or an increase in serious irreversible, or in-
capacitating reversible, illness as a hazardous air pollu-
tant under section 112, the Administrator shall revise the
list of hazardous air pollutants under such section to in-
clude such pollutant.
(6) Upon application by the Governor of a State show-
ing that any category of stationary sources of a hazard-
ous air pollutant listed under section 112 is not subject
to emission standards under such section, the Admin-
istrator shall propose and promulgate such emission
standards applicable to such category of sources.
(7) Unless later deadlines for action of the Adminis-
trator are otherwise prescribed under this section or sec-
tion 112, the Administrator slinll. not later than three
months following the date of receipt of any application
by a Governor of a State, either—
(A) find that such application does not contain
the requisite showing and deny such application, or
(B) grant such application and take the action
required under this subsection.
(8) Before taking any action required by subsection
(f) or by this subsection, the Administrator shall pro-
vide notice nnd opportunity for public hearing.
(h) (1) For purposes of this section, if in the judgment
of the Administrator, it is not feasible to prescribe or en-
force a standard of performance, he inny instead promul-
gate a design, equipment, work practice, or operational
standard, or combination thereof, which reflects the best
technological system of continuous emission reduction
which (taking into consideration the cost of achieving
such emission reduction, and any non-air quality health
and environmental impact and energy requirements) the
Administrator determines has been adequately demon-
strated. In the event the Administrator promulgates a
design or equipment standard under this subsection, ho
shall include as part of such standard such requirements
as wil] assure the proper operation and maintenance of
any such element or design or equipment.
(2) For the. purpose, of this subsection, the phrase "not
feasible t'o prescribe or enforce, a standard of perform-
ance" means any situation in which the. Administrator
determines that (A) a pollutant or pollutants cannot be
emitted through a conveyance designed and constructed
to emit or capture such 'pollutant, or that any require-
ment for, or use of. such a conveyance would be incon-
sistent, with any Federal. State, or local law, or (B) the
application of measurement methodology to a particular
class of sources is not practicable due to technological or
economic limitations.
(3) Tf after notice and opportunity for public hearing,
any person establishes to the satisfaction of the Adminis-
CAA CoiBpllance/Bnforceaent 1-45 Guidance Manual 1986
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Chapter One The Clean Air Ace
35
trator that an alternative means of emission limitation
will achieve a reduction in emissions of any air pollutant
at least equivalent to the reduction in emissions of
such air pollutant achieved under the requirements of
paragraph (1), the Administrator shall permit the use
of such alternative by the source for purposes of com-
pliance with this section with respect to such pollutant.
(4) Any standard promulgated under paragraph (1)
shall be promulgated in terms of standard of perform-
ance whenever it becomes feasible to promulgate and en-
force such standard in such terms.
(i) Any regulations promulgated by the Administrator
under this section applicable to grain elevators shall not
apply to country elevators (as defined by the Adminis-
trator) which have a storage capacity of less than two
million five hundred thousand bushels.
(j) (1) (A) Any person proposing to own or operate a
new source may request the Administrator for one or
more waivers from the requirements of this section for
such source or any portion thereof with respect to any air
pollutant to encourage the use of an innovative techno-
logical system or systems of continuous emission reduc-
tion. The Administrator may, with the consent of the
Governor of the State in which the source is to be located,
grant a waiver under this paragraph, if the Administra-
tor determines after notice and opportunity for public
hearing, that—
(i) the proposed system or systems have not been
adequately demonstrated,
(ii) the proposed system or systems will operate
effectively and thorp is a substantial likelihood that
such system or systems will achieve prcatcr con-
tinuous emission reduction than that required to
be achieved under the standards of performance
which would otherwise apply, or achieve at least an
equivalent reduction at lower cost in terms of energy,
economic, or nonair quality environmental impact,
(iii) the owner or operator of the proposed source
has demonstrated to the satisfaction of the Admin-
istrator that the proposed system will not cause or
contribute to an unreasonable risk to public he.-iltli,
welfare, or safety in its operation, function, or mal-
function, and
(iv) the granting of such waiver is consistent with
the requirements of suhparagraph (C).
In making any determination under clause (ii). the Ad-
ministrator shall take into account nnv previous failure.
of such system or systems to operate effect ivi-ly or to meet
any requirement of the new source performance stand-
ards. In determining whether an unreasonable risk exists
under clause (iii), the Administrator shall consider,
among other factors, whether and to what extent the
CAA Conpllance/Boforceaent 1-46 Guidance Manual 1986
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Chapter One
The Clean Air Act
36
use of the proposed technological system will cause, in-
cren.se. reduce, or eliminate emissions of nny unregulated
pollutants; available metlio
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Chapter One The Clean Air Act
37
(i) seven years lifter the dnte on which nny waiver
is granted to such source, or portion thereof, or
(ii) four years nfter the date on which such source
or portion thereof commences operation,
whichever is earlier.
(F) No waiver under this subsection shall apply to any
portion of a source other than the portion on winch the
innovative technological system or systems of continuous
emission reduction is used.
(2) (A) If a waiver under paragraph (1) is terminnte.d
under clause (ii) of paragraph (1)(D), the Adminis-
trator shall grant an extension of the requirements of this
section for such source for such minimum period ns may
be necessary to comply with the. applicable standard of
performance under subsection (b) of this section. Such
period shall not extend beyond the date three years from
the time such waiver is terminated.
(B) An extension granted under this paragraph shall
set forth emission limits and a compliance schedule con-
taining increments of progress whicn require compliance
with the applicable standards of performance as exprdi-
tiously as practicable and include such measures as are
necessary and practicable in the interim to minimize
emissions. Such schedule shall bo. treated ns a standard of
performance for purposes of subsection (c) of this sec-
tion and section 113.
NATIONAL EMISSION STANDARDS FOR HAZARDOUS Ala
rOIATTTANTS
SEC. 112. (a) For purposes of this section—
(1) The term "hazardous air pollutant" means
an air pollutant to which no ambient air quality
standard is applicable and which in the judgment of
the Administrator causes, or contributes to, nir pol-
lution which may reasonably be anticipated to result.
in an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness.
(2) The term "new source'' means n stationary
source the construction or modification of which is
commenced after the Administrator proposes regula-
tions under this section establishing an emission
standard which will be applicable to such souirc.
(3) The terms "stationary source,'' "modification,"'
"owner or operator" and "existing source" shall have
the same meaning as such terms have under section
lll(a).
(b)(l)(A) The Administrator shall, within 90 days
after the date of enactment of the ('lean Air Amend-
ments of 1970, publish (and shall from time to time
thereafter revise) a list which includes each hazardous air
pollutant, for which he intends to establish an emission
standard under this section.
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Chapter One The Clean Air Act
38
(B) Within 180 days after the inclusion of nny air pol-
lutant in such list, the Administrator shall publish pro-
posed regulations establishing emission standards for
such pollutant together with a notice of a public hearing
within thirty days. Not later than 180 days after such
publication, the Administrator shall prescribe an emis-
sion standard for such pollutant, unless he finds, on the
basis of information presented at such hearings, that such
pollutant clearly is not a hazardous air pollutant. The
Administrator shall establish any such standard at the
level which in his judgment provides hn ample margin of
safety to protect the public health from such hazardous
air pollutant.
(C) Any emission standard established pursuant to
this section shall become effective upon promulgation.
(2) The Administrator shall, from time to time, issue
information on pollution control techniques for air pol-
lutants subject to the provisions of this section.
(c) (1) After the effective date of any emission stand-
ard under this section—
(A.) no person may construct any new source or
modify anv existing source, which, in the Adminis-
trator's judgment, will emit an air pollutant to which
such standard applies unless the Administrator finds
that such source, if properly operated will not cause
emissions in violation of such standard, and
(B) no air pollutant to which such standard ap-
plies may be emitted from any stationary source in
violation of such standard, except that in the. case of
an existing source—
(i) such standard shall not apply until 00
days after its effective date, and
(ii) the Administrator may grant a waiver
permitting such source a period of up to two
years after the effective date of a standard to
comply with the standard, if he finds that such
period is necessary for the installation of con-
trols and that steps will be token during the
period of the waiver to assure that the henlth
of persons will be protected from imminent
endangerment.
(2) The President may exempt any stationary source
from compliance with paragraph (1) for a period of not
more than two years if he finds that the technology to
implement such standards is not available and the oper-
ation of such source is required for reasons of notional
security. An exemption under this paragraph may be ex-
tended for one or more additional periods, each period
not to exceed two years. The President shall make a re-
port to CougH1** 'vi-'.i respect to each exemption (or ex-
tension thereof) iiidilf ui'lcr this paragraph.
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Chapter One The Clean Air Act
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(d)(l) Encli State may develop and submit to the
Administrator a procedure for implementing juul enforc-
ing emission stnndnnls for hazardous nir pollutants for
stationary sources located in such State. If the Adminis-
trator finds the State procedure is adequate, he shall dele-
gate to such State any authority he has under this Act to
implement and enforce such standards.
(2) Nothing in this subsection shall prohibit the Ad-
ministrator from enforcing any applicable emission
standard under this section.
(e) (1) For purposes of this section, if in the. judgment
of the Administrator, it is not feasible to prescribe or en-
force an emission standard for control of a hazardous air
pollutant or pollutants, he may instead promulgate a de-
sign, equipment, work practice, or operational standard,
or combination thereof, which in his judgment is ade-
quate to protect the public health from such pollutant or
pollutants with an ample margin of safety. In the event
the Administrator promulgates a design" or equipment
standard under this subsection, he shall include ns part of
such standard such requirements as will assure the proper
operation and maintenance of any such element of design
or equipment.
(2) For the purpose of this subsection, the phrase "not
feasible to prescribe or enforce an emission standard''
means any situation in which the Administrator deter-
mines that (A) a hazardous pollutant or pollutants can-
not be emitted through a conveyance designed and
constructed to emit or capture such pollutant, or that
any requirement for, or use of, such a conveyance would
be inconsistent with any Federal, State, or local law. or
(B) the application of measurement methodology to a
particular class of sources is not practicable due to tech-
nological or economic limitations.
(3) If after notice and opportunity for public hearing,
any person establishes to the satisfaction of the Adminis-
trator that an alternative means of emission limitation
will achieve a reduction in emissions of any air pollutant
at least equivalent to the reduction in emissions of such
air pollutant achieved under the requirements of para-
graph (1), the Administrator shall permit the use of such
alternative by the source, for purfwses of compliance with
this section with respect to such pollutant.
(4) Any standard promulgated under paragraph (1)
shall be promulgated in terms of an emission standard
whenever it Incomes feasible to promulgate and enforce
such standard in such terms.
FEDERAL KNPOKCEMENT
SEC. 113. (a) (1) Whenever, on the basis of any infor-
mation available to him. the Administrator rinds that any
person is in violation of any requirement of an applicable
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Chapter One The Clean Air Act
40
implementation plnn. the Administrator shall notify the
person in violntion of I he |>lnn nnil the State in which the
plan applies of surli finding- If such violntion extends,
l>eyond the 3(>th day nfter the date.of the Administrator's
notiKration, the Administrator nmy issue nn order requir-"
ing snrh person to comply with the requirements of such
plnn or lie nmy bring a civil action in accordance with
subsection (b).
(2) Whenever, on the bnsis of information available to
him. the Administrator finds thnt violntionsof nn appli-
cable implementation plnn nre so widespread thnt such
violations appear to result from n fnilure of the State in
which the plnn applies to enforce the. plnn effectively, he
shall so notify the State. If the Administrator finds such
failure extends beyond the thirtieth day after such notice,
he shall give public notice of such finding. During the
period beginning with such public notice and ending
when such State satisfies the Administrator that it win
enforce such plan (hereafter referred to in this section as
''period of federally assumed enforcement"), the Ad-
ministrator may enforce any requirement of such plnn
with respect to any person-
Ox) by issuing an order to comply with such re-
quirement, or
(B) by bringing a civil action under subsection
(b).
(3) Whenever, on the basis of any information avail-
able to him, the Administrator finds that nny person is in
violntion of section lll(o) (relating to new source per-
formance standards), 112(c) (relating to standards for
hazardous emissions), or 119(g) (relating to energy-
related authorities), or is in violntion of any require-
ment of section 114 (relating to inspections, etc.), he may
issue an order requiring such person to comply with such
section or requirement, or he may bring n civil nction in
accordance with subsection (b).
(4) An order issued under this subsection (other thnn
an order relating to a violntion of section 112) shall not
take effect until the person to whom it is issued hns hnd
nn opportunity to confer with the Administrator con-
cerning the alleged violation. A copy of nny order issued
under this subsection shall he sent to the State air pollu-
tion control agency of any State in which the violation
occurs. Any order issued under this subsection shall state
with reasonnble specificity the nature of the violation,
specify n time for complinnce which the Administrator
determines is reasonable, tnking into account the serious-
ness of the violntion and any good fnith efforts to com-
ply with applicable requirements. Tn nny case in which nn
order under this subsection (or notice to n violntor under
paragraph (1)) is issued to a corporation, n copy of such
order (or notice) shnll be issued to npproprinte corporate
officers.
CAA Compliance/Enforcement 1-51 Guidance Manual 1986
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Chanter One The Clean Air Act
41
(5) Whenever, on the basis of information available
to him, the Administrator finds that a State is not acting
in compliance with any requirement of the regulation
referred to in section 129(a)(l) of the Clean Air Art
Amendments of 1977 (relating to certain interpretative
regulations) or any plan provisions required tinder sec-
tion 110(a)(2)(I) and part D, he may issue an order
prohibiting the construction or modification of any major
stationary source in any area to which such provisions
apply or he may bring n civil action under subsection
(b)f5).
(b^ The Administrator shall in the case of any person
which is the owner or operator of a major stationary
source, and may, in the case of any other person, com-
mence a civil action for a permanent or temporary in-
junction, or to assess and recover a civil penalty of not
more than $25,000 per day of violation, or both, whenever
such person—
(1) violates or fails or refuses to comply with any
order issued under subsection (a); or
(2) violates any requirement of an applicable im-
plementation plan (A) during any period of Fed-
erally assumed enforcement, or (B) more than .10
days after having been notified by the Administra-
tion under subsection (a)(l) that such person is vio-
lating such requirement; or
(3) violates sect ion lll(e),'112(c),section 110(p)
(as in effect before the date of the enactment of the
Clean Air Act Amendments of 1977), subsection
(d)(5) (relating to coal conversion), section 3'20
(relating to cost of certain vapor recovery), section
119 (relating to smelter orders), or any regulation
under part B (relating to ozone); or
(4) fails or refuses to comply with any require-
ment of section 114 or subsection (d) of this sec-
tion ; or
(5) attempts to constrict or modify a major sta-
tionary source in any area with respect to which a
finding under subsection (n)(.r>) has lieen made.
The Administrator may commence a civil action for
recovery of any noncompliance penalty under section 120
or for recovery of any nonpayment penalty for which
any person is liable under section 120 or for l>oth. Any
action under this subsection may be brought in the dis-
trict court of the United States for the district in which
the violation occurred or in which the defendant resides
or has his principal place of business, and such court shall
have jurisdiction to restrain such violation, to require
compliance, to assess such civil penalty and to collect any
noncompliance penalty (and nonpayment penalty) owed
under section 120. In determining the amount of any civil
penalty to be assessed under this subsection, the court
• The word "section" wti apparently omitted following the comma.
CAA Conpliance/Enforceaeat 1-52 Guidance Manual 1986
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Chapter One . The Clean Air Act
42
shall take into consideration (in addition toother factors)
the size of the business, the economic impact of the penal-
ty on the business, and the seriousness of the violation.
Notice of the commencement of such action shall be given
to the appropriate State air pollution control agency. In
the case of any action brought by the Administrator
under this subsection, the court mny award costs of litiga-
tion (including reasonable attorney and expert witness
fees) to the party or parties against whom such action
was brought in any case where the court finds that such
action was unreasonable.
(c)(l) Any person who knowingly—
(A) violates any requirement of an applicable im-
plementation plan (i) during any period of Fed-
erally assumed enforcement, or (ii) more than 30
days after having been notified by the Administra-
tion under subsection (a) (1) that such person is vio-
lating such requirement, or
(H) violates or fails or refuses to comply with
any order under section 11$) or under subsection (a)
or (d) of this section, or
(0) violates section lll(e). section 112(c). or
(D) violates any requirement of section 110(g)
(as in effect be fore" the dnte of the enactment of this
Act, subsection (b)(7) or (d)(.r.) of section 120 (re-
lating to noncompliance penalties), or any require-
ment of part It (relating to ozone).shall be punished
by a fine of not more than $-2fi.O(K) per day of viola-
tion, or by imprisonment for not more than one vrar.
or by both. If the. conviction is for a violation com-
mitted after the first conviction of such pel-son under
this paragraph, punishment shall be by a fine of not
more than $50.000 ppr day of violation, or by im-
prisonment for not more tfian two years, or by both.
(2) Any person who knowingly makes any false state-
ment, representation, or certification in any application.
record, report, plan, or other document filed or required
to be maintained under this Act or who falsifies, tampers
with, or knowingly renders inaccurate nny monitoring
device or method required to be maintained under tins
Act, shall upon conviction, Iw punished by a fine of not
more than $10,000. or by imprisonment for not more than
six months, or by both.
(3) For the purpose of this subsection, the term "per-
son" includes, in addition to the entities referred to in sec-
tion 302(e), any responsible corporate officer.
(d)(l) A State (or, after thirty days notice to tho
State, the Administrator) may issue to any stationary
source which is unable to comply with any requirement
of an applicable implementation plan nn order which
specifies a date for final compliance with such require-
ment later than the date for attainment of any national
ambient air quality standard specified in such plan if—
CAA Coopllance/Bnforceaent 1-53 Guidance Manual 1986
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Chapter One The Clean Air Act
43
(A) such order is issued after notice to tlio |>ul>lir.
(and, as appropriate, to tlic Administrator) contain-
ing the content of the proposed order and opportu-
nity for public hearing;
(H) the order contains ti sclicdulc and timotnMo
for compliance;
(C) tlie order requires compliance witli applicable
interim requirements ns provided in pnrogrnpli (.r>)
(B) (relating to sources converting to conl). nnd
paragraphs (6) and (7) (relating to all sources re-
ceiving such orders) and requires the emission moni-
toring and reporting by the source authorized to l>e
required under sections 110(a)(2)(F) and 114(n)
(i);
(D) the order provides for final compliance with
the requirement of the applicable implementation
plan as expeditiously as practicable, but (except as
provided in paragraph (4) or (5)) in no event later
than July 1, 1079, or three yenrs after the date for
final compliance with such requirement specified in
such plan, whichever is later; and
(E) in the case of a major stationary source, the
order notifies the source thnt, unless exempted under
section 120(a)(2) (B) or (C), it will be required
to pay a noncompliance penalty effective July 1,
1979, ns provided under section 120 or by such later
date as is set forth in the order in accordance, with
section 120 (b)(3) or (g), in the event such source
fails to achieve final compliance by July 1, 1970.
(2) In the case of nny major stationary source, no
sucli order issued hy the State shall take effect until the
Administrator determines thnt such order has been issued
in accordance with the requirements of this Act. The Ad-
ministrator shall determine, not later thnn 90 days after
receipt of notice of the issuance of an order under this
subsection with respect to any major stationary source,
whether or not any State order under this subsection is
in accordance with the requirements of this Act. In the
case of any source other thnn a major stationary source,
such order issued by the Stntc shall cense to l>e'effective.
upon ft determination by the Administrator that it wns
not issued in accordance with the requirements of this
Act. If the Administrator so objects, he shall simultane-
ously proceed to issue an enforcement order in accord-
ance with sirt>sectiou (n) or an order under this subsec-
tion. Nothing in this section shall be construed as limiting
the authority of n State, or (toliticnl subdivision to adopt
and enforce a more stringent emission limitation or more
expeditious schedule or timetable for compliance than
that contained in an order by the Administrator.
(3) If any source not in compliance with any require-
ment, of an applicable implementation plan gives written
notification to the State, (or the Administrator) that such
CAA Covpllance/EaforceaeaC 1-54 Guidance Manual 1986
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Chapter One The Clean Air Act
44
source intends to comply by means of replacement of the
facility, a complete change, in production process or a
termination of operation, the State (or the Administra-
tor) may issue, nn order under paragraph (I) of this
sulisection permitting the source to operate until July 1,
1970, without any interim schedule of compliance: Pro-
ridfd. That as a condition of the issuance of any such
order, the owner or operator of such source shall post
a bond or other surety in an amount equal to the cost
of actual compliance by such facility and. any economic
value which may accrue to the owner or operator of such
source by reason of the failure to comply. If n source for
which the l>ond or other surety required by this para-
graph has been posted fails to replace the facility, change
the production process, or terminate the operations as
specified in the order by the required date, me owner or
operator shall immediately forefit on the bond or other
surety and the State (or the Administrator) shall have
no discretion to modify the order under this paragraph
or to compromise the bond or other surety.
(4) An order under paragraph (1) of this subsection
may be issued to an existing stationary source if—
(A) the source will expeditious! v use new means of
emission limitation which the Administrator deter-
mines is likely to be adequately demonstrated (within
the meaning of section lll(a)(l)) upon expiration
of the order,
(B) such new means of emission limitation is not
likely to be used by such source unless an order is
granted under this subsection,
(C) such new means of emission limitation is
determined by the Administrator to have a sub-
stantial likelihood of—
(i) achieving greater continuous emission re-
duction than the means of emission limitation
which, but for such order, would be required;
or
(ii) achieving an equivalent, continuous reduc-
tion at lower cost in terms of energy, economic,
or nouair quality environmental impact; and
(D). compliance by the source, with the require-
ment of the. applicable implementation plan would
bo impracticable prior to, or during, the installation
of such new means.
Such an order shall provide, for final compliance with
the requirement in the applicable implementation plan
ns expeditiously as practicable, but in no event later
than five years after the date on which the source would
otherwise be required to be in full compliance with the
requirement.
(.r>) (A) In the case, of a major stationary source which
is burning petroleum products or natural gas, or both
nnd which—
CAA Conpllance/Bnforceaeat 1-55 Guidance Manual 1986
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Chapter One The Clean Air Act
45
(i) is prohibited from doing so under an order
nni-snnnl. to tin- provisions of section 2(a) of ll«%
Energy Supply nnd Environmental Coordination
Act of 1974 or any amendment thereto, or any sub-
sequent enactment which supersedes such provisions,
or
(ii) within one, year after enactment of the Clean
Air Act Amendments of 1977 gives notice of intent
to convert to coal as its primary energy source be-
cause of actual or anticipated curtailment of natural
gas supplies under any curtailment plan or sched-
ule approved by the Federal Power Commission (or,
in the case of intrastatc natural gas supplies, ap-
proved by the appropriate State regulatory com-
mission),
and which thereby would no longer be in compliance with
any requirement under an applicable implementation
plan, an order may be issued by the Administrator under
paragraph (1) of this subsection for such source which
specifies a date for final compliance with such require-
ment as expeditiously as practicable, but not later than
December 31, 1980. The Administrator may issue an ad-
ditional order under paragraph (1) of this subsection for
such source providing an additional period for such
source to come into compliance with the requirement in
the applicable implementation plan, which shall be as
expeditious! y as practicable, but in no event later than
five years after the date required for compliance under
the preceding sentence.
(6) In issuing an order pursuant, to subparagrnph
(A), the Administrator shall prescril>e (and may from
time to time modify) emission limitations, requirements
respecting pollution characteristics of coal, or other en-
forceable measures for control of emissions for each
source to which such an order applies. Such limitations,
requirements, and measures shall be those which the
Administrator determines must be complied with by tho
source in order to assure (throughout the period before
the date for final compliance, established in the order)
that the burning, of coal by such source will not result
in emissions which cause or contribute to concentrations
of any air pollutant in excess of any national primary
ambient air quality standard for such pollutant.
(C) The Administrator may, by regulation, establish
priorities under which manufacturers of continuous'
emission reduction systems necessary to carry out this
paragraph shall provide such systems to users thereof,
if he finds, after consultation with tho States, that pri-
orities must be unused in order to assure that such sys-
tems are first provided to sources subject to orders under
this paragraph in air quality control regions in which
national primary ambient air quality standards have not
been achieved. No regulation under this subparagraph
may impair the obligation of any contract entered into
CAA Compliance/Enforcement 1-56 Guidance Manual 1986
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Chapter One The Clean Air Act
46
before the date of enactment of the Clean Air Act Amend-
ments of 1977.
(D) No order issued to a source under this paragraph
with respect to an nir pollutant shall be effective if the
national primary umbient air quality standard with re-
spect to such pollutant is being exceeded at any time in the
air quality control region in winch such source is located.
The preceding sentence shall not apply to a source if, upon
submission by any person of evidence satisfactory to the
Administrator, the Administrator determines (after
notice and public hearing) —
(i) that emissions of such nir pollutant from such
source will affect only infrequently the air quality
concentrations of such pollutant in each portion
of the region where such standard is being exceeded
at any time;
(ii) that emissions of such air pollutant from
such source will have only insignificant effect on
the air quality concentration of such pollutant
in each portion of the region where such standard
is being exceeded at any time; and
(iii) with reasonable statistical assurance that
emissions of such air pollutant from such source, will
not cause or contribute to air quality concentrations
of such pollutant in excess of the national primary
ambient air quality standard for such pollutant.
(6) An order issued to a source under this subsection
shall set forth compliance schedules containing incre-
ments of progress which require compliance with the re-
quirement postponed as expeditiously as practicable.
(7) A source to which an order is issued under para-
graph (1), (3), (4), or (5) of this subsection shall me
the best practicable system or systems of emission reduc-
tion (as determined by the Administrator taking into
account the requirement with which the source must ulti-
mately comply) for the period during which such order
is in effect and shall comply with such interim require-
ments as the Administrator determines are reasonable
and practicable. Such interim requirements shall
include—
(A) such measures as the Administrator deter-.
mines are necessary to avoid au imminent and sub-
stantial endangerment to health of persons, and
(B) a requirement that the source comply with
the requirements of the applicable implementation
plan during any such period insofar as such source
is able to do so (as determined by the Adminis-
trator).
(8) Any order tinder parajrraph H) of this suhoction
shall l>e terminated if the Administrator determines on
the record, after notice and hearing, that the, inability of
tho source to comply no longer exists. If the owner or
operator of the source to which the order is issued demon-
CAA Goapllance/Knforceaent1-57 Guidance Manual 1986
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Chapter One The Clean Air Act
47
strates that prompt termination of such order would
result in undue hardship, the termination shall become
effective at the earliest practicable date on which such
undue hardship would not result, but in no event later
than the date required under this subsection.
(9) If the Administrator determines that a source to
which an order is issued under this subsection is in viola-
tion of any requirement of this subsection, he shall—
(A) enforce such requirement under subsections
(a), (b),or (c) of this section,
(B) (after notice and opportunity for public
hearing) revoke such order and enforce compliance
with the requirement with respect to which such
order was granted,
(C) give notice of noncompliance and commence
action under section 120, or
(D) take any appropriate combination of such
actions.
(10) During the period of the order in effect under
this subsection and where the owner or operator is in
compliance with the terms of such order, no Federal en-
forcement action pursuant to this section and no action
under section 304 of this Act shall be pursued apninst
such owner or operator based upon noncompliance dur-
ing the period the order is in effect with the requirement
for the source covered by such order.
(11) For the purposes of sections 110, 304, and 307 of
this Act, any order issued by the State and in effect pur-
suant to this subsection shall become part of the appli-
cable implementation plan.
(12) Any enforcement order issued under subsection
(a) of this section or any consent decree in an enforce-
ment action which is in effect on the day of enactment of
the Clean Air Act Amendments of 1077 shall remain in
effect to the extent that such order or consent decree is
(A) not inconsistent with the requirements of this sub-
section and section 119 or (B) the administrative orders
on consent issued by the Administrator on November 5,
1975 and February 26, 1976 and requiring compliance
with sulfur dioxide emission limitations or standards
at least as stringent as those promulgated under section
111. Any such enforcement order issued under subsection
(a) of this section or consent decree which provides for
nn extension beyond July 1, 1979, except such adminis-
trative orders on consent, is void unless modified under
this subsection within one year after the enactment of the
Clean Air Act Amendments of 1977 to comply with the
requirements of this subsection.
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Chapter One
The Clean Air Act
48
(e) ( /) The A fim inistrator may, in. his (fi.orrf.twti .in the
case of any person irhich is the owner or operator of a.
stationary source in
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Chapter One The Clean Air Act
49
contain^ at a minimum-, (i) requirements for interim
controls (which may include operation and mainte-
nance procedure*).- (U) increment.* of compliance.
sufficient to assure com.pliance by the final compli-
ance deadlines; (Hi) requirement.(s) that the amount
referred to in subpapragraph (B) above, is to be. in-
vested in proiecU representing additional capital in-
vestments in the iron- and steel-producing operations
owned or operated by such person for the purpose*
specified in such subparagraph and shall contain
schedule (s) specifying when each such project, (or
specified alternative project) is to be commenced and
completed, as well as increments of progress toirard
completion; (iv) stipulated monetary penal tie-i
covering completion of the air pollution control
projects required by the decree, the projects referred
to under (Hi) above, and such other items a* appro-
priate; (v) monitoring requirements; (iv) reporting
requirements (including provision for periodic re-
ports to be. filed with the court); and (mi) provision*
for preventing increases of emissions from each sta-
tionary source ;
(D) the. Administrator finds, on the basii of infor-
mation submitted by the applicant and other infor-
mation available to him, that such person will have
sufficient fund* to comply with au applicable re-
quirements by the times 'set forth in the judicial
decree(s) entered into pursuant to subparagraph
(C) of this subsertion;
(E) the Administrator find*, on the basis of infor-
mation submitted by the applicant and other infor-
mation available to him, that the applicant is in. com-
pliance with existing Federal judicial dearer* (if
any) entered under section 11-1 of this Act applicable,
to its iron- and. steel-producing operations 01- that
any violations of such decrees am de minimu* in na-
ture : and
(F) the. Administrator finds, on the. ba*is of infor-
mation submitted by the appplicant and other infor-
mation available to him, that any extension, of com-
pliance, granted pursua/nt. to this xi/h*ccft'on iriff not
result in degradation of air quality during the term
of the extension.
(£) For the purpose of this subsection, uiron- and steel-
producing operation*" include production facilities foi"
iron and steel, as well as associated processing, coke mak-
ing and sintering facilities. For the purpose of. this sub-
section, "phased program of compliance" means a pro-
gram assuring, to ths extent possible, that capital ex-
penditures for achieving compliance at all sources owned
or operated by such person in iron- and steel-producing
CAA CoBpliance/Bnforceaeat 1-60 Guidance Manual 1986
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Chapter One The Clean Air Act
50
operations must be made during the second and ench xuc-
ceeding year of the period covered by the decree (a) in an
amount such that at the end of ea-ch such year the cumu-
lative expenditures under the decree(s) will be at lea.it
equal to the amount which would have been spent, if the
total expenditures to be made under the decree(s) were
made in equal increments during each year of the de-
cree (s). For the purpose of this subsection, "additional
capital investments in iron- and steel-producing opera-
tions" means investments which the Administrator finds
would -not be made during the same time period if ex-
tension (s) of time for compliance with clean air require-
ments were not granted under this subsection. The decree
entered into pursuant to subparagraph (C) of paragraph
(1) of this subsection shall specify the projects which
represent additional capital investment in iron- and
steel-producing operations, but may also contain specified
alternative projects. The decree may also be modified to
substitute equivalent projectt for those specified. The
owner or operator of iron- and steel-producing operations
seeking an extension of compliance under this subsection
has the burden of satisfying the Administrator with re-
gard to the findings required in paragraphs (A), (#)»
(Z?), (E), and (F). A person which is subject to a judi-
cial decree entered or modified pursuant to this subsec-
tion shall not be assessed a noncompliance penalty under
section 120 of the Act for any source with an extension of
compliance under such decree for the period of time
covered by the decree only if such source remains in com-
pliance with all provisions and requirements of such
decree.
(3) Any records, reports, or information obtained by
the Administrator under this subsection shall be avail-
able, to the public, except that upon a showing satisfac-
tory to the Administrator by any person that records, re-
ports, or information, or particular part thereof (other
than emission data) to which the Administrator has ac-
cess under this section if made public, is likely to cause
substantial harm to the person's competitive position, the
Administrator shall consider such record, report, or in-
formation or particular portion thereof confidential in
accordance irith the purposes of section 1905 of title 18 of
the TJnited States Code, except that *uch record, report,
or information may be disclosed to other officers, employ-
ees, or authorized representatives of the United States
concerned with carrying out this Act or when relevant in
any proceeding under this Act. Any regulations promul-
gated under section 1H of this Act apply with equal force
to thin mbscction, subject, however, to any changes that
the. Administrator shall determine are. necessary. This
paragraph does not constitute authority to withhold
records, reports, or information from the Congre**.
CAA Compliance/Enforcement 1-61 Guidance Manual 1986
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Chapter One The Clean Air Act
51
(4) Nothing in tkis subsection shall preclude or deny
the right of any State or political subdivision to enforce
any air pollution requirements in any State judicial or
administrative forum.
(6) The provisions of this subsection shall be self-ex-
ecuting, and no implementing regulations shall be re-
quired.
(6) Upon receipt of an application for an extension of
time under this subsection with respect to any stationary
source the Administrator shall promptly—
(i) publish notice of such receipt in the Federal
Register;
(ii) notify the Governor of the State in which the
stationary source is located; and
(Hi) notify the chief elected official of the political
subdivision m which the source is located.
(7) (A) The Administrator shall publish in the Fed-
eral Register notice of any finding made, or other action
taken, by him in connection with the entry of any consent
decree or modification of an existing consent decree pur-
suant to this subsection or in connection with the Admin-
istrator^ failure or refusal to consent to such a decree.
(B) (i) Except as provided in clause (ii), any finding
or other action of the Administrator under this subsection
with respect to any stationary source, and any failure or
refusal of the Administrator to make any sucn finding or
to take any such action under this subsection, shall be re.-
viewable only by a court in which a civil action under sec-
tion 113 of this Act is brought against the owner or ope-
rator of such stationary source.
(ii) Where, before the date of the enactment of the
Steel Industry Compliance Extension Act of 1981, a
civil action was brought under this Aft against the owner
or operator of such stationary xmtrce, any finding nr other
action of the Administrator under this subsection with
respect to such stationary source, and any failure nr re-
fusal: of the Administrator to make any mch finding or
£0 take any such action under this subsection, shall be re-
viewable only by the court in which the civil action was
brought.
(8) The provisions of section W4(b)(l)(B) of this
Act shall be applicable to this subsection.
(9) For a source which receives an rxfen*ion under
thi* subsection, air pollution requirement* specified in
Federal judicial fferre.es entered into or modified unde.r
this subsection that involves such source, may not be mod-
ified to extend beyond December 31. 1985.
INSPECTIONS, MONITORING, AND ENTRY
SEC. 114. (a) For the purpose (i) of developing or as-
sisting in the development of any implementation plan
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Chapter One The Clean Air Act
52
under section 110 or lll(d), any standard of perform-
ance under section 111, or any emission standard under
section 1124 (ii) of determining whether any person is in
violation of any such standard or any requirement of such
a plan, or (iii) carrying out any provision of this Act
(except a provision of title II with respect to a manu-
facturer of new motor vehicles or new motor vehicle
engines) —
(1) the Administrator may require any person
who owns or operates any emission source or who is
subject to any requirement of this Act (other than a
manufacturer subject to the provisions of section
206(c) or 208) with respect to a provision of title II
to (A) establish and maintain such records, (B)
make such reports, (C) install, use. and maintain
such monitoring equipment or methods, (D) sample
such emissions (in accordance with such methods, at
such locations, at such intervals, and in such manner
as the Administrator shall prescribe), and (E) pro-
vide such other information, as he may reasonably
require: and
(2) the Administrator or his authorized repre-
sentative, upon presentation of his credentials—
(A) shall have a right of entry to, upon, or
through any premises of such person or in
which any records required to he maintained
under paragraph (1) of this section are located,
and
(B) may at reasonable times have access to
and copy any records, inspect nny monitoring
equipment and method required under para-
graph (1), and sample any emissions which such
person is required to sample under paragraph
(b) (1) Each State may develop and submit to the Ad-
ministrator a procedure for carrying out this section in
such State. If the Administrator finds the. State pro-
cedure, is adequate, he may delegate to such State any
authority he has to carry out this section.
(2) Nothing in this subsection shall prohibit the Ad-
ministrator from carrying out this section in a State.
(c) Any records, reports, or information obtained
under subsection (a) shall he available to the public, ex-
cept that, upon a showing satisfactory to the Administra-
tor by any person that records, reports, or information,
or particular part thereof, (other than emission data) to
which the Administrator has access under this section if
made, public, would divulge methods or processes en-
titled to protection as trade secrets of such person, the
Administrator shall consider such record, report, or in-
* A comma wai apparently omitted following "section 113."
CAA Compliance/Bnforcenent 1-63 Guidance Manual 1986
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Chapter One The Clean Air ACc
53
formation or particular portion thereof confidential in
accordance with the purposes of section 1905 of title 18
of the United States Code, except, that such record, re-
port, or information may he disclosed to other officers,
employees, or authorized representatives of the United
States concerned with carrying out this Act or when
relevant in any proceeding under this Act.
(d) (1) In the case of any emission standard or limita-
tion or other requirement which is adopted by a State, ns
part of an applicable, implementation plan or ns part of
an order under section 113(d), before carrying out an
entry, inspection, or monitoring under paragraph (2)
of subsection (a) with respect to such standard, limita-
tion, or other requirement, the. Administrator (or his rep-
resentatives) shall provide the State air pollution con-
trol agency with reasonable prior notice of such action,
indicating the purpose of such action. No State agency
which receives notice under this paragraph of an action
proposed to be taken may usp the information contained
in the notice to inform the person whose property is pro-
posed to be affected of the proposed action. If the. Ad-
ministrator has reasonable basis for believing that a State
agency is so using or will so use such information, notice
to the agency under this paragraph is not required until
such time as the Administrator determines the agency
will no longer so use information contained in a notice
under this paragraph. Nothing in this section shall be
construed to require notification to any State agency of
any action tnken by the Administrator with respect to
any standard, limitation, or other requirement which is
not part of an applicable implementation plan or which
was promulgated by the Administrator under section
llO(c).
(2) Nothing in paragraph (1) shall be construed to
provide that any failure of the Administrator to comply
with the requirements of such paragraph shall he a de-
fense in any enforcement action brought by the Adminis-
trator or shall make inadmissible as evidence in any such
action any information or material obtained notwith-
standing such failure to comply with such requirements.
IXTFWNATIONAT. AIR POLLUTION
SF.C. 115. (a) Whenever the Administrator, upon re-
ceipt, of reports, surveys or studies from any duly con-
stituted international agency has reason to believe that
nny air pollutant or pollutants emitted in the United
States cause or contribute, to air pollution which may
reasonably he anticipated to endanger public health or
welfare in a foreign country or whenever the Secretary
of State requests him to do so with respect to such pol-
lution which the Secretary of State alleges is of such a
nature, the Administrator shall give formal notification
CAA Coapliao.ee/Baforceaeat T^5 Guidance Manual 1986
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Chapter One The Clean Air Act
54
thereof to the Governor of tlic State in which such emis-
sions originate.
(h) The notice of Hie A a finding under section 110(n) ('2) (II) (ii) which
requires n plan revision with respect to so much of the
applicable implementation plan ns is inadequate to pre-
vent or eliminate the cndangcrnient referred to in subsec-
tion (a). Any foreign country so affected by such emis-
sion of pollutant or pollutants shall be invited to appear
at any public hearing associated with any revision or the
appropriate portion of the applicable implementation
plan.
(c) This section shall apply only to a foreign coun-
try which the Administrator determines has given the
United States essentially the same rights with respect to
the prevention or control of air pollution occurring in
that country us is given that country by this section.
(d) Recommendations issued following any abate-
ment conference conducted prior to the. enactment of the
Clean Air Act Amendments of 1077 shall remain in effect
with respect to any pollutant for which no national ambi-
ent air quality standard has been established under sec-
tion 100 of this Act unless the Administrator, after
consultation with all agencies which were party to the
conference, rescinds any such recommendation on grounds
of obsolescence.
RETENTION OF STATE AUTHORITY
SEC. llfi. Except as otherwise provided in sections 110
(c), (e),and (f) (as in effect before the date of the enact-
ment of the Clean Air Act Amendments of lf>77). '200,
211 (c) (4).and 233 (preemptingcertain State regulation
of moving sources) nothing in this Act shall preclude or
deny the right of any State or political subdivision there-
of to adopt or enforce (1) any standard or limitation
respecting emissions of air pollutants or (2) any require-
ment res|)ccting control or abatement of air pollution;
except that if an emission standard or limitation is in
effect under an applicable implementation plan or under
section 111 or 112. snch State or political subdivision may
not adopt or enforce any emission standard or limitation
which is less stringent than the standard or limitation
under such plan or section.
PRESIDENT'S AIR QI'AUTT ADVISORY BOARD AND
ADVISORY COMMITTKKS
SEP. 117. (a) Tn order to obtain assistance in the de-
velopment and implementation of the purposes of this
Act including air quality criteria, recommended control
techniques, standards, resenrch and development, and to
encourage the continued efforts on the part of industry
CAA Conpliance/EnforceaeaC 1-65 Guidance Manual 1986
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Chapter One The Clean Air Act
55
to improve nir quality and to develop economically feas-
ible methods for the control nnd abatement of air'|mllu-
tion, the Administrator shall from time to time establish
advisory committees. Committee members shall include,
lint not l>e limited to, persons who nre knowledgeable
concerning air quality from the standpoint of health,
wel fare, economics, or technology.
(b) The members of any other advisory committees
appointed pursuant to this" Act who are not officers or
employees of the United States while attending confer-
ences or meetings or while otherwise serving at the re-
quest of the Administrator, shall be entitled to receive
compensation at a rate to be fixed by the Administrator,
but not exceeding $100 per diem, including traveltime,
and while away from their homes or regular places of
business they may be allowed trafel expenses, including
per diem in lieu of subsistence, as authorized by section
5703 of title 5 of the United States Code for persons in
the Government service employed intermittently.
(c) Prior to—
(1) issuing criteria for an air pollutant under
section 108 (a) (2),
(2) publishing any list under section lll(b)(l)
(3) publishing any standard under section 111
(b)(l)(B) or section 112(b)(l)(B),or
(4) publishing any regulation under section 202
(a),
the Administrator shall, to the maximum extent prac-
ticable within the time provided, consult with appropri-
ate advisory committees, independent experts, nnd Fed-
eral departments and agencies.
CONTROL OF POLLUTION FROM FEDERAL FACILITIES
SEC. 118. (a) Each department, agency, nnd instru-
mentality of executive, legislative, and judicial
branches of the Federal Government. (1) having jurisdic-
tion over any property or facility, or (2) engaged in any
activity resulting, or which may result, in the discharge
of air pollutants, nnd each officer, ngent, or employee
thereof, shall IMS subject to, and comply with, all Federal,
State, interstate, nnd loonl requirements, ndministrativc
authority, nnd process nnd snnctions respecting the con-
trol and nbntement of nir pollution in the same manner,
and to the same extent ns any nongovernmental entity.
The preceding sentence, shall npply (A) to nny require-
ment whether substantive or procedurnl (including nny
recordkceping or reporting requirement, any requirement
respecting permits nnd any other requirement, whatso-
ever), (B) to the exercise of any Federal. State, or locnl
ndministrativc authority, nnd "(C) to nny process nnd
CAA Conpllance/Bnforceaent1-66Guidance Manual 1986
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Chapter One
The Clean Air Act
56
sanction, whether enforced in Federal. State, or local
courts or in any other manner. This subsection shall ap-
ply notwithstanding any immunity of such agencies,
officers, agents, or employees under anv law or rule of
law. No officer, agent, or employee of tlic United States
shall be personally liable for any civil penalty for which
he is not otherwise liable.
(b) The President, may exempt any omission source
of any department, agency, or instrumentality in the
executive branch from compliance with such a require-
ment if he determines it to l>e in the paramount
interest of the United States to do so, except that no
exemption may be granted from section 111, and an
exemption from section 11'2 may be granted only in ac-
cordance with section ll'2(c). No such exemption shall
be granted due to lack of appropriation unless the Pres-
ident shall have specifically requested such appropriation
as a part of the budgetary process and the Congress shall
have failed to make available such requested appropria-
tion. Any exemption shall he for a period not in excess of
one year, hut additional exemptions may be granted for
periods of not to exceed one. year upon the President's
making a new determination. In addition to any such °x-
emptipn of a particular emission source, the President
may, if he determines it to be in the paramount interest
of the United States to do so, issue regulations exempting
from compliance with the requirements of this section
any weaponry, equipment, aircraft, vehicles, or other
classes or categories of property which are owned or oper-
ated by the Armed Forces of the United States (includ-
ing the Coast Guard) or by the National Guard of any
State and which are uniquely military in nature. The
President shall reconsider the need for such regulations
at three-year intervals. The President shall report each
January to the Congress all exemptions from the require-
ments of this section granted during the preceding calen-
dar year, together with his reason for grant ing each such
exemption.
PRIMARY NONFERROUS 8MF.I.TF.R ORDFR8
•
SF,C. llO. (a)(l) Upon application by the owner or
operator of a primary nonferrous smelter, a primary non-
ferrous smelter order under subsection (b) may be
issued—
(A) by the Adminstrator, after thirty days'notice
to the State, or
(B) by the State in which such source is located,
but no such order issued bv the State shall take effect
until the Administrator determines that such order
has been issued in accordance with the requirements
of this Act.
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Chapter One me wean Air ACU
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Not later than ninety days after submission by the Shite
to the Administrator of "notice of the issii.in<:i> "f it pri-
mary uonferrous smelter order under this section, the
Administrator shall determine whether or not such order
has been issued by the State in accordance with the re-
quirements of this Act. If the Administrator determines
that such order has not been issued in accordance with
such requirements, he shall conduct a hearing respecting
the reasonably available control technology for primary
nonferrous smelters.
(2) (A) An order issued under this section to a pri-
mary nonferrous smelter shall lie referred to as a "pri-
mary nonferrous smelter order". No primary nonferrous
smelter may receive both an enforcement order under
section 113(d) and a primary nonferrous smelter order
under this section.
(13) Before any hearing conducted under this section,
in the case of an application made by the owner or op-
erator of a primary uon ferrous smelter for a second order
under this section, the applicant shall furnish the Ad-
ministrator (or the State as the case may be) with n
statement of the grounds on which such application is
based (including all supporting documents and informa-
tion). The statement of the grounds for the proposed
order shall be provided l»v the Administrator or Hip State
in any case in which such State or Administrator is act-
ing on its own initiative. Such statement (including such
documents and information) shall be made available to
the public for a thirty-day period tefore such hearing
and shall be considered as part of such hearing. No pri-
mary nonferrous smelter order may be granted unless the
applicant establishes that he meets the conditions re-
quired for the issuance of such order (or the Administra-
tor or State establishes the meeting of such conditions
when acting on their own initiative).
(C) Any decision with respect to the issuance of n pri-
mary nonferrous smelter order shall l>e accompanied by
a concise statement of the findings and of the Imsis of
such findings.
(3) For the purposes of section " 110, .104, and .107 of
this Act, any order issued by the State and in effect pursu-
ant to this subsection shall become part of the applicable
implementation plan.
(b) A primary nonferrous smelter order under this
section may be issued to a primary nonferrous smelter
(1) such smelter is in existence on the date of the
enactment of this section;
(2) the requirement of the applicable implementa-
tion plan with respect to which the order is issued
is an emission limitation or standard for sulfur
•The word "section" It «pp»r«ntly Intended to memo "ttctloW.
CAA Conpllance/Enforceaent1-68
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Chapter One The Clean Air Act
58
oxides which is necessary and intended to be itself
sufficient to enable attainment nnd mnintennnce of
national primary and secondary nmbient nir quality
standards for sulfur oxides; and
(3J such smelter is unable to comply with such
requirement by the applicable (Into for compliance
because no means of emission limitation applicable
to such smelter which will enable it to achieve com-
pliance with such requirement has been adequately
demonstrated to be reasonably available (as deter-
mined by the Administrator, taking into account the
cost of compliance, nonnir quality health and envi-
ronmental impact, and energy consideration).
(c)(l) A second order issued to a smelter under this
section shall set forth compliance schedules containing
increments of progress which require compliance with
the requirement postponed as expeditiously ns practica-
ble. The increments of progress shall be limited to re-
quiring compliance with subsection (d) and, in the case
of a second order, to procuring, installing, and operating
the necessary means of emission limitation as expcdi-
tiously as practicable after the Administrator determines
such means have been adequately demonstrated to be
reasonably available within the meaning of subsection
i2) Not in excess of two primary nanferrous smelter
ere may. be issued under this section to any primary
nonferrous smelter. The first such order issued to a
smelter shall not result in the postponement of the re-
quirement with respect to which such order is issued
beyond January 1, 1983. The second such order shall not
result in the postponement of such requirement beyond
January 1, 1988.
(d) (1) ( A) Each primary nonferrous smelter to which
an order is issued under this section shall be required to
use such interim measures for the period during which
such order is in effect as may be necessary in the judg-
ment of the Administrator to assure attainment and
maintenance of the national primary nnd secondary
nmbient air quality standards during such period, taking
into account the aggregate effect on air quality of such
order together with all variances, extensions, waivers, en-
forcement orders, delayed compliance orders and primary
nonferrous smelter orders previously issued under this
Act.
(B) Such interim requirements shall include —
(i) a requirement that the source to which the
order applies comply with such reporting require-
ments and conduct such monitoring as the Adminis-
trator determines may be necessary, nnd
(ii) such measures' as the Administrator deter-
mines are necessary to avoid nn imminent and sub-
stantial endangcrment to health of persons.
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Chapter One The Clean Air Act
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(C) Such interim measures shall also, except as pro-
vided in paragraph (2), include continuous omission
reduction technology. The Administrator shnll condition
the use of any such interim measures upon the agreement
of the owner or operator of the smelter—
(i) to comply with such conditions as the Admin-
istrator determines ore necessary to maximize the
reliability and enforceability of such interim
measures, as applied to the smelter, in attaining and
maintaining the national ambient air quality stand-
ards to which the order relates, and
(ii) to commit reasonable resources to research
and development of appropriate emission control
technology.
(2) The requirement of paragraph (1) for the use of
continuous emission reduction technology may !K» waived
with respect to a particular smelter by the State or the
Administrator, after notice and a hearing on the record,
and upon a showing by the owner or operator of the
smelter that such requirement would l>c so costly as to
necessitate permanent or prolonged temporary cessation
of operations of the smelter. Upon application for such
waiver, the Administrator shall be notified and shnll,
within ninety days, hold a hearing on the record in ac-
cordance with section 554 of title 5 of the United States
Code. At such hearing the Administrator shall require.
the smelter involved to present information relating to
any alleged cessation of o(>erations and the detailed rea-
sons or justifications therefor. On the basis of such hear-
ing the Administrator shall make findings of fact as to
the effect of such requirement and on the alleged cessa-
tion of operations and shall make, such recommendations
as he deems appropriate. Such report, findings, and rec-
ommendations shall be available to the public, and shnll
be taken into account by the State or the Administrator
in making the decision whether or not to grant such
waiver.
(3) In order to obtain information for purposes of n
waiver under paragraph (2), the Administrator may, on
his own motion, conduct an investigation and use the
authority of section 321.
(4) In the case of any smelter which on the date of
enactment of this section uses continuous emission reduc-
tion technology and supplemental controls and which
receives nn initial primary nonferrous smelter order
under this section, no additional continuous emission
reduction technology shall IK? required ns a condition of
such order unless the Administrator determines, nt nny
time, after notice and public hearing, that such addi-
tional continuous emission reduction technology is ade-
quately demonstrated to l»p. reasonably available, for the
primary nonferrous smelter industry.
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Chapter One The Clean Air Act
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(c) At any time during which nn order under this
section applies, the Administration may enter upon a
public hearing respecting the availability of technology.
Any order under this section shall be terminated if the
Administrator determines on the record, after notice and
public hen ring, that the conditions upon which the order
was based no longer exist. If the owner or operator of the
smelter to which the order is issued demonstrates that
prompt termination of such order would result in undue
hardship, the termination shall become effective at the
earliest practicable date on which such undue hardship
would not result, but in no event later than the date
required under subsection (c).
(f) If the Administrator determines that a smelter to
which an order is issued under this section is in violation
of any requirement of subsection (c) or (d), he shall—
!1) enforce such requirement under section 113,
2) (after notice and opportunity for public hear-
ing) revoke such order and enforce compliance with
the requirement with respect to which such order was
granted.
(3) give notice of noncompliance and commence
action under section 120, or
(4) take any appropriate combination of such
actions.
NONCOMPLIANCE PENALTY
SEC. 120. (a)(l)(A) Not later than 6 months after
the date of enactment of this section, and after notice
and opportunity for a public hearing, the Administrator
shall promulgate regulations requiring the assessment
and collection of a noncompliance penalty against per-
sons referred to in paragraph (2) (A).
(B)(i) Each State may develop and submit to the
Administrator a plan for carrying out this section in such
State. If the Administrator finds that the State plan
meets the requirements of this section, he may delegate
to such State any authority he has to carry out this
action.
(ii) Notwithstanding A delegation to a State under
clause (i), the Administrator may carry out this section
in such State under the circumstances described in sub-
section (b)(2)(B).
(2) (A) Except as provided in subpnragrnph (B) or
(C) of this paragraph, the State or the Administrator
shall assess and collect n noncomplinnce penalty against
every person who owns or operates—
(i) a major stationary source (other than n pri-
mary nonferrous smelter which has received a pri-
mary nonferrous smelter order under section 119)
which ia not in compliance with any emission limita-
CAA CoMpIiance/Enf orceaent 1-71 Guidance Manual 1986
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Chapter One The Clean Air Act
61
tion, emission standard or compliance schedule under
any applicable implementation plan (whether or
not such source is subject to a Federal or State con-
sent decree), or
(ii) a stationary source which is not in compli-
ance with an emission limitation, emission standard,
standard of performance, or other requirement es-
tablished under section 111 or 112 of this Act, or
(iii) any source referred to in clause (i) or (ii)
(for which an extension, order, or suspension re-
ferred to in subparagraph (B), or Federal or State
consent decree is in effect), or n primary nonferrous
smelter which has received a primary nonferrous
smelter order under section 119 which is not in
compliance with any interim emission control re-
quirement or schedule of compliance under such
extension, order, suspension, or consent decree.
For purposes of subsection (d) (2), in the case of a pen-
alty assessed with respect to a source referred to in clause
(iii) of this subparagraph, the costs referred to in such
subsection (d) (2) shall be the economic value of non-
compliance with the interim emission control require-
ment or the remaining steps in the schedule of compli-
ance referred to in such clause.
(B) Notwithstanding the requirements of subpnra-
graph (A) (i) and (ii), the owner or operator of nny
source shall be exempted.from the duty to pay a noncom-
pliance penalty under such requirements with respect to
that source if, in accordance with the procedures in sub-
section (b) (5), the owner or operator demonstrates Hint
the failure of such source to comply with nny such
requirement is due solely to—
(i) a conversion by such source from the burning
of petroleum products or natural gas, or both, ns
the permanent primary energy source to the burning
of coal pursuant to an order under section 113(d) (5)
or section 119 (as in effect before the date of the
enactment of the Clean Air Act Amendments of
1977);
(ii) in the case of a coal-burning source granted
an extension under the second sentence of section
119(c) (1) (as in effect before the dntc of the. onnct-
ment of the Clean Air Act Amendments of 1077),
a prohibition from using petroleum products or
natural gas or both, by reason of an order under the
provisions of section 2 (a) and (b) of the Energy
Supply and Environmental Coordination Act of
1974 or under nny legislation which amends or su-
persedes such provisions;
(iii) the use of innovative technology sanctioned
by an enforcement order under section 113(d) (4);
CAA Conpllance/Bnforceaent1^72Guidance Manual 198?
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Chapter One The Clean Air Act
62
(iv) an inability to comply with nny such require-
ment, for which inability the source hns received an
order under section 113(d) (or an order under sec-
tion 113 issued before the date of enactment of this
section) which has the effect of permitting a delay
or violation of any requirement of this Act (includ-
ing a requirement of an applicable implementation
plan) which inability results from reasons entirely
beyond the. control of the o\vner or operator of such
source or of nny entity controlling, controlled by, or
under common control with the owner or operator of
such source; or
(v) the. conditions by reason of which a temporary
emergency suspension is authorized under section
110(f)or(g).
An exemption under this subparngraph shall cease to b«
effective if the source fails to comply with the interim
emission control requirements or schedules of compliance
(including increments of progress) under any such ex-
tension, order, or suspension.
(C) The Administrator may, after notice and oppor-
tunity for public hearing, exempt any source from the
requirements of this section with respect, to a particular
instance of noncompliance if he finds that such instance
of noncompliance is de minimis in nature and in duration.
(b) Regulations under subsection (a) shall—
(1) permit, the assessment and collection of such
penalty by the State if the State has a delegation of
authority in effect under subsection (a)(l)(B) (i);
(2) provide for the assessment, and collection of
such penalty by the Administrator, if—
(A) the State does not have a delegation of
authority in effect under subsection (a)(l) (B)
(i),or
(B) the State has such a delegation in effect
hut fails with respect to any particular person
or source, to assess or collect the penalty in ac-
cordance with the requirements of this section;
(3) require the States, or in the event the States
fail to do so, the Administrator, to give a brief hut
reasonably specific, notice of noncompliance under
this section to each person referred to in subsection
(a) (2) (A) with respect to each source owned or
operated by such person which is not in compliance
as provided in such subsection, not Inter than July 1,
1079, or thirty days after the discovery of such non-
compliance, whichever is later;
(4) require each person to whom notice is given
under paragraph (.1) to—
(A) calculate the amount of the penalty owed
(determined in accordance with subsection (d)
(2) and the schedule of payments (determined
in accordance with sulisection (d)(3)) for each
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Chapter One The Clean Air Ace
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such source and, within forty-five days nftor the
issuance of such notice or after the denial of a
petition under subparagraph (li),tosiihmit that
calculation nnd proposed schedule, together with
the, information necessary for nn independent.
verification thereof, to the State and to the Ad-
ministrator, or
(B) submit a petition, within forty-five, days
after the issuance of such notice, challenging
such notice of noncompliance or alleging entitle-
ment to an exemption under subsection (a) (2)
(B) with respect to a particular source;
(5) require the Administrator to provide a hear-
ing on the record (within the meaning of suhrhnpfcr
II of chapter 5 of title 5, United States Code) and to
make a decision on such petition (including findings
of fact and conclusions of law) not later than ninety
days after the receipt of any petition under para-
graph (4)(B), unless the State agrees to provide
a hearing which is sustantially similar to such a hear-
ing on the record and to make a decision on such
petition (including such findings and conclusions)
within such ninety day period;
(6) (A) authorize the Administrator on his own
initiative to review the decision of the State under
paragraph (5) and disapprove it if it is not in ac-
cordance with the requirements of this section, and
(B) require the Administrator to do so not later than
sixty days after receipt of a petition under this suh-
paragraph, notice, and public hearing and a showing
by such petitioner that the State decision under para-
graph (5) is not in accordance with the requirements
of this section;
(7) require payment, in accordance with subsec-
tion (d), of the penalty by each person to whom no-
tice of noncompliance is given under paragraph (.1)
with respect to each noncomplying source for which
such notice is given unless there has been a final de-
termination granting a petition under paragraph
(4) (B) with respect to such source;
(8) authorize the State or the Administrator to
adjust (and from time to time to readjust) the
amount of the penalty assessment calculated or the
payment schedule proposed by such owner or opera-
tor under paragraph (4), if the Administrator finds
after notice and opportunity for a hearing on the
record that the penalty or schedule does not meet the
requirements of thissection; and
(9) require a final adjustment of the penalty with-
in 180 days after such source comes into compliance
in accordance with subsection (d) (4).
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Chapter One The Clean Air Act
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In any case in which the Stntc establishes n noncompli-
ance penalty under this section, the Stntc shall provide
notice thereof to the Administrator. A noncotnplinnce
penalty established by a Stnte under this section shall
apply unless the Administrator, within ninety days after
the date of receipt of notice of the State penalty assess-
ment under this section, objects in writing to the amount
of the penalty as less than would be required to comply
with guidelines established by the Administrator. If the
Administrator objects, he shall immediately establish a
substitute noncompliancc penalty applicable to such
source.
(c) If the owner or operator of any stationary source
to whom a notice is issued under subsection (b) (3)—
(1) does not submit a timely petition under sub-
section (b)(4)(B),or
(2) submits a petition under subsection (b)(4)
(B) which is denied, and
fails to submit a calculation of the penalty assessment,
a schedule for payment, and the information necessary
for independent verification thereof, the State (or the
Administrator, as the case may be) may enter into a con-
tract with any person who has no financial interest in the
owner or operator of the source (or in any person con-
trolling, controlled by or under common control with such
source) to assist in determining the amount of the pen-
alty assessment or payment schedule with respect to such
source. The cost of carrying out such contract may be
ndded to the penalty to bo assessed against the owner or
operator of such source.
(d)(l) All penalties assessed by the Administrator
under this section shall be paid to the United Stntes
Treasury. All penalties assessed by the State under this
section shall be paid to such State.
(2) The amount of the penalty which shall be assessed
and collected with respect to any source under this section
shall be equal to—
(A) the amount determined in accordance with
regulations promulgated by the Administrator under
subsection (a), which is no less than the economic
value which a delay in compliance bevond July 1,
1970. mav have for the owner of such source, in-
cluding the quarterly equivalent of the. capital costs
of compliance and debt service, over a normal amorti-
zation period, not to exceed ten years, operation and
maintenance costs foregone as n result, of noncom-
pliance. and any additional economic value which
such a delay may have for the owner or operator of
such source, minus
(B) the amount of any expenditure made by the.
owner or operator of that, source during nny such
quarter for the purpose, of bringing that source into,
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Chapter One _ The Clean Air Act
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and maintaining compliance with, snrli requirement,
to the extent that such expenditures have not lx>en
taken into account in the calculation of the penalty
under subparagraph (A).
To the extent that any expenditure under subparagraph
(B) made during any quarter is not subtracted for such
quarter from the costs under subparagraph (A), such ex-
penditure may be subtracted for any subsequent quarter
from such costs. In no event shall the amount paid be less
than the quarterly payment minus the amount attributed
to actual cost of construction.
(3) (A) The assessed penalty required under this sec-
tion shall be paid in quarterly installments for the period
of covered noncomplionce. All quarterly payments (de-
termined without regard to any adjustment or any sub-
traction under paragraph (2)(B)) after the first pay-
ment shall be equal.
(B) The first payment shall be due on the date six
months after the date of issuance of the notice of noncom-
pliance under subsection (b)(3) with respect to any
source or on January 1, 1980, whichever is later. Such
first payment shall be in the amount of the quarterly in-
stallment for the upcoming quarter, plus the amount
owed for any preceding period within the period of cov-
ered noncompliance for such source.
(C) For the purpose of this section, the term "period
of covered noncompliance" means the period which
begins—
(i) two years after the date of enactment of this
section, in the case of a source for which notice of
noncompliance under subsection (b) (3) is issued on
or before the date two years after such date of en-
actment, or
(ii) on the date of issuance of the notice of non-
compliance under subsection (b)(3), in the case of
a source for which such notice is issued after July 1,
1979,
and ending on the date on which such source comes into
(or for the purpose of establishing the schedule of pay-
ments, is estimated to come into) compliance with such
requirement.
(4) Upon making a determination that a source with
respect to which a penalty has been paid under this sec-
tion is in compliance and .is maintaining compliance with
the applicable requirement, the State (or the Adminis-
trator as the case may be) shall review the actual ex-
penditures made by the owner or operator of such source
for the purpose of attaining and maintaining compliance,
and shall within 180 days after such source comes into
compliance—
(A) provide reimbursement with interest (to be
paid by the State or Secretary of the Treasury, as the
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cose may be) at appropriate prevailing rates (as
determined by the Secretary of the Treasury) for
any overpayment by such person, or
(B) nssoss and rollert an additional payment with
interest at appropriate prevailing rates (as deter-
mined by the Secretary of the Treasury) for any
underpayment by such person.
(5) Any person who fails to pay the amount of any
penalty with respect to any source, under this section on
a timely basis shall be required to pay in addition a
quarterly nonpnyment penalty for each quarter during
which such failure to pay persists. Such nonpayment
penalty shall be in nn amount equal to 20 percent of the
aggregate amount of such person's penalties and non-
payment penalties with respect to such source which are
unpaid as of the. beginning of such quarter.
(e) Any action pursuant to this section, including any
objection of the Administrator under the last sentence
of subsection (b), shall be considered a final action for
purposes of judicial review of any penalty under section
307 of this Act,
(f) Any orders, payments, sanctions, or other require-
ments under this section shall be in addition to any other
permits, orders, payments, sanctions, or other require-
ments established under this Act. and shall in no way
affect any civil or criminal enforcement, proceedings
brought under any provisions of this Act or State or
local law.
(g) In the case of any emission limitation or other
requirement, approved or promulgated by the Adminis-
trator under this Act after the enactment, of the Clean
Air Act Amendments of 1077 which is more stringent
than the. emission limitation or requirement for the source
in effect prior to such approval or promulgation, if any,
or where there was no emission limitation or requirement
approved or promulgated before enactment of the Clean
Air Act Amendments of 1077, the date for imposition of
the non-compliance penalty under this section, shall be
either July 1, 1070, or the date on which the. source, is re-
quired to be in full compliance with such emission limita-
tion or requirement, whichever is later, but in no event
later than three years after tho approval or promulgation
of such emission limitation or requirement.
CONSULTATION
Sr.r. 121. In carrying out the requirements of this Act
requiring applicable, implementation plans to contain—
(1) any transportation controls, air quality main-
tenance plan requirements or preconstruction re-
view of direct sources of air pollution, or
(2) any measure referred to—
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Chapter One ____^_ The Clean Air ACC
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(A) in part D (pertaining to nonattainmcnt
requirements), or
(B) in part C (pertaining to prevention of
significant deterioration),
and in carrying out the requirements of section 113(d)
(relating to certain enforcement orders), tho State shall
provide a satisfactory process of consultation with gen-
eral purpose local governments, designated organiza-
tions of elected officials of local governments and any
Federal land manager having authority over Federal
land to which the State, plan applies, effective with re-
spect to any such requirement which is adopted more than
one year after the date of enactment of the Clean Air
Act Amendments of 1977 as part of such plnn. Such
process shall be in accordance with regulations promul-
gated by the Administrator to assure adequate consulta-
tion. Such regulations shall be promulgated after notice
and opportunity for public hearing and not later than 6
months after the date of enactment of the Clean Air Act
Amendments of 1977. Only a general purpose unit of local
government, regional agency, or council of governments
adversely affected by action of the Administrator np-
proving any portion of a plan referred to in this sub-
section may petition for judicial review of such action on
the basis of a violation of the requirements of this section.
LISTING OF CERTAIN UNnKOri.ATKD POLLUTANTS
SEC. 122. (a) Not later than one year nfter date of
enactment of this section (two yenrs for radioactive
pollutants) and after notice and opportunity for public
Hearing, the Administrator shall review all avnilable.
relevant information and determine whether or not emis-
sions of radioactive pollutants (including sourrc ma-
terial, special nuclear material, and byproduct material),
cadmium, arsenic and polycyclic organic matter into the
ambient air will cause, or contribute to. nir pollution
which may reasonably he anticipated to endanger public
health. Tf the Administrator makes an affirmative deter-
mination with respect to any such substance, he shall
simultaneously with such determination include such sub-
stance in the list published under section 108(a)(l) or
112(1)) (1) (A) (in the case of a substance which, in the
judgment of the Administrator, causes, or contributes to.
air pollution which may reasonably he anticipated to
result in an increase in mortality or an increase in serious
irreversible, or incapacitating reversible, illness)* or shall
include each category of stationary sources emitting such
substance in significant amounts in the list published
under section lll(b) (1) (A), or take any combination
of such actions.
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(b) Nothing in subsection (a) shall be construed to
affect the authority of the Administrator to revise any
list referred to in subsection (a) with respect, to any sub-
stance (whether or not enumerated in subsection (a)).
(c)(l) Before listing any source material, special nu-
clear, or byproduct material (or component or derivative
thereof) as provided in subsection (a), the Administrator
shall consult with the Nuclear Regulatory Commission.
(2) Not later thnn six months after listing any such
material (or component or derivative thereof) the Ad-
ministrator and the Nuclear Regulatory Commission
shall enter into an interagency agreement with respect
to those sources or facilities which are under the jurisdic-
tion of the Commission. This agreement shall, to the
maximum extent practicable consistent with this Act,
minimize duplication of effort and conserve administra-
tive resources in the establishment, implementation, and
enforcement of emission limitations, standards of per-
formance, and other requirements and authorities (sub-
stantive and procedural) under this Act respecting the
emission of such material (or component or derivative
thereof) from such sources or facilities.
(3) In case of any standard or emission limitation
promulgated by the Administrator, under this Act or by
any State (or the Administrator) under any applicable
implementation plan under this Act. if the Nuclear Reg-
ulatory Commission determines, after notice find oppor-
tunity for public hearing that the application of such
standard or limitation to a source or facility within the
jurisdiction of the Commission would endanger public
health or safety, such standard or limitation shnll not
apply to such facilities or sources unless the President
determines otherwise within ninety days from the date
of such finding.
STACK HEIGHTS
SEC. 123. (a) The degree of emission limitation re-
quired for control of any air pollutant under an appli-
cable implementation plan under this title shall not be
affected in any manner by—
(1) so much of the stack height of any source as
exceeds good engineering practice (as determined
under regulations promulgated by the Administra-
tor), or
(2)-any other dispersion technique.
The preceding sentence shall not apply with respect to
stack heights in existence before the date of enactment
of the Clean Air Amendments of 1970 or dispersion
techniques implemented before such date. In establishing
an emission limitation for conl-fired stenm electric gener-
ating units which are subject to the provisions of section
118 and which commenced operation before July 1, 1057,
the effect of the entire stack height of stacks for which a
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Chapter One me Clean Air ACL
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construction contract was awarded before February 8,
1974, may be taken into account.
(b) For the purpose of this section, the term
"dispersion technique" includes any intermittent or
supplemental control of air pollutants varying with
atmospheric conditions.
(c) Not later than six months after the date of enact-
ment of this section, the Administrator, shall after notice
and opportunity for public hearing, promulgate regula-
tions to carry out this section. For purposes of this sec-
tion, good engineering practice means, 'with respect to
stack heights, the height necessary to insure that emis-
sions from the stack do not result in excessive concentra-
tions of any air pollutant in the immediate vicinity of
the source as a result of atmospheric downwash, eddies
and wakes-which may Jbe created by the source itself,
nearby structures or nearby terrain obstacles (as deter-
mined by the Administrator). For purposes of this sec-
tion such height shall not exceed two and a half times
the height of such source unless the owner or operator of
the source demonstrates, after notice and opportunity for
public hearing, to the satisfaction of the Administrator,
that a greater height is necessary as provided under tlio
preceding sentence. In no event may the Administrator
prohibit any increase in any stack height or restrict in
any manner the stack height of any source.
ASSURANCE OF ADEQUACY OP STATE PLANS
SEC. 124. (a) As expeditiously as practicable hut not
later than one year after date of enactment of this section,
each State shall review the provisions of its implementa-
tion plan which relate to major fuel burning sources and
shall determine—
(1) the extent to which compliance with require-
ments of such plan, is dependent upon the use by
major fuel burning stationary sources of petroleum
products or natural gas,
(2) the extent to which such plan rnny reasonably
be anticipated to be inadequate to meet the require-
ments or this Act in such State on a reliable and
long-term basis by reason of its dependence upon
the use of such fuels, and
(3) the extent to which compliance with the re-
quirements of such plan is dependent upon use of
coal or coal derivatives which is not locally or region-
ally available.
Each State shall submit the results of its review and its
determination under this paragraph to the Administra-
tor promptly upon completion thereof.
(b) (1) Not later than eighteen months after the date
of enactment of this section, the Administrator shall re-
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Chapter One _ The Clean Mr Act
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view the submissions of the States under subsection (a)
and shall require each State to revise its plan if, in the
judgment of the Administrator, such plan revision is
necessary to assure that such plan will be adequate to as-
sure compliance with the requirements of this Act in such
State on a reliable and long-term basis, taking into ac-
count the actual or potential prohibitions on use of
petroleum products or natural gas, or both, under any
other authority of law.
(2) Before requiring a plan revision under this sub-
section, with respect to any State the Administrator shall
take into account the report of the review conducted by
such State under paragraph (1) and shall consult witn
the Governor of the State respecting such required
revision.
MEASURES TO PREVENT ECONOMIC DISRUPTION OR
UNEMPU>YMENT
SEC. 125. (a) After notice and opportunity for a public
hearing—
(1) the Governor of any State in which a major
fuel burning stationary source referred to in this
subsection (or class or category thereof) is located,
(2) the Administrator, or
(3) the President (or his designee),
may determine that action under sulisection (b) is neces-
sary to prevent or minimize significant local or regional
economic disruption or unemployment which would
otherwise result from use by such source (or class or
category) of—
(A) coal or coal derivatives other than locally or
regionally available coal,
(B) petroleum products,
(C) natural gas, or
(D) any combination of fuels referred to in sub-
paragraphs (A) through (C),
to comply with the requirements of a State implementa-
tion plan.
(b) Upon a determination under subsection (a) —
(1) such Governor, with the written consent of
the President or his designee,
(2) the President's designee with the written con-
sent of such Governor, or
(3) the President
may by rule or order prohibit any such major fuel burn-
ing stationary source (or class or category thereof) from
using fuels other than locally or regionally available coal
or coal derivatives to comply with implementation plan
requirements. In taking any action under this subsection,
the Governor, the President, or the President's designee
as the case, may l>e, shall take into account, the final cost
to the consumer of such an action.
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(c) The Governor, in the case of action under subser-
tion (b)(l), or the Administrator, in the case of nn
action under subsection (b) (2) or (3) shall, bv rule or
order, require each source to which such action applies
to—
(1) enter into long-term contracts of at least ten
years in duration (except as the President or his
designee may otherwise permit or require by rule or
order for good cause) for supplies of regionally
available coal or coal derivatives,
(2) enter into contracts to acquire any additional
means of emission limitation which the Administra-
tor or the State determines may be necessary to com-
ply with the requirements of this Act while using
such coal or coal derivatives as fuel, and
(3) comply with such schedules (including incre-
ments of progress), timetables and other require-
ments as may be necessary to assure compliance with
the requirements of this Act.
Requirements under this subsection shall he established
simultaneously with, and as a condition of, any action
under subsection (b).
(d) This section applies only to existing or new major
fuel burning stationary sources—
(1) which have the design capacity to produce
250,000,000 Btu's per hour (or its equivalent), as
determined by the Administrator, and
(2) which are not in compliance with the require-
ments of an applicable implementation plan or which
are prohibited from burning oil or natural gas, or
both, under any other authority of law.
(e) Except as may otherwise be provided by rule by
the State or the Administrator for good cause, any action
required to be taken by a major fuel burning stationary
source under this section shall not he deemed to constitute
a modification for purposes of section 111 (a) (2) and
(4) of this Act.
(f) For purposes of sections 113 and 120 a prohibition
tinder subsection (b), and a corresponding rule or order
under subsection (c), shall be treated as a requirement of
section 113. For purposes of any plan (or portion there-
of) promulgated under section 110(c), any rule or order
under subsection (c) corresponding to a prohibition
under subsection (b), shall be treated as a part of such
plan. For purposes of section 113, a prohibition under
subsection (b), applicable to any source, and a corre-
sponding rule or order under subsection (c), shall be
treated as part of the applicable implementation plan for
the State in which subject source, is locate*!.
(g) The President may delegate his authority under
this section to an officer or employee of the United States
designated by him on a ensc-hy-case basis or in any other
manner he deems suitable.
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Chapter One The Clean Air Act
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(h) For the purpose of this section the term "locally
or regionally available coal or coal derivatives" means
conl or coal derivatives which is, or can in the judg-
ment of the Stat« or the Administrator feasibly be,
mined or produced in the local or regional area (as
determined by the Administrator) in which the major
fuel burning stationary source is located.
INTERSTATE POLLUTION ABATEMENT
SEC. 126. (a) Each applicable implementation plan
shall—
(1) require each major proposed new (or mod-
ified) source—
(A) subject to part C (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 qual-
ity 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 sonrros
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 the
date of enactment of the Clean Air Act Amend-
ments of 1977.
(b) Any State or political subdivision may petition
the Administrator for a finding that any major source
emits or would emit any air pollutant in violation of the
prohibition of section 110(a) (2) (E) (i). 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) 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 the applicable
implementation plan in Such State —
(1) for any major proposed new (or modified)
source with respect to which a finding has been m^tle
under subsection (b) to be constructed or to operate
in violation of the prohibition of section 110(o)(2)
(2) for any major existing source to operate more
than three months after such finding has been made
with respect to it.
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Chapter One The Clean Air Act
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The Aflminisle-ator may permit tho continue') ii|*i-rnlinn
of a source referred to in pninpinph (2) beyond the ex-
piration of such three-month period if such source com-
plies with such emission limitntions and compliance
schedules (containing increments of progress) ns mny l>e
provided by the Administrator to bring about compli-
ance with the requirements contained in section 110(a)
(2) (EHi) 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 en-
forcement order under section 113(d) after the expira-
tion of such period during which the Administrator has
permitted continuous operation.
SEC. 127. (a) Each State plan shall contain measures
which will be effective to notify the public during nny
calendar year 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 bring 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 high-
way access points to metropolitan areas or television,
radio, or press notices or information.
(b) The Administrator is authorized to make grants
to States to assist in carrying out the requirements of
subsection (a).
STATE BOARDS
SEC. 128. (a) Not later than the date one year after the
date of the enactment of this section, each applicable im-
plementation plan shall contain requirements that—
(1) any board or body which approves permits or
enforcement orders under this Act. shall have at least
a majority of members who represent the public in-
terest and do not derive any significant portion of
their income from persons subject to permits or en-
forcement orders under this Act, 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 execu-
tive agencies, or any other entities which arc more strin-
gent than the requirements of paragraph (1) and (2),
and the Administrator shall approve any such more strin-
gent requirements submitted as part of an implementa-
tion plan.
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Chapter One The Clean Air Act
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PART H—OZONK PROTF.CTION
PURPOSES
SEC. 150. The purposes of this part fire (1) to provide
for n bettor understanding of the effects of humnn notions
on the stratosphere, especinlly the ozone in the strato-
sphere, (2) to provide for a hotter understanding <>f the
effects of changes in the stratosphere, especially the ozone
in the stratosphere on the public health and Welfare, (3)
to provide information on the prepress of regulation of
activities which may reasonably ho. anticipated to affect
the ozone in the stratosphere in such a way as to cause or
contribute to cndangcrmcnt of the public health or wel-
fare, and (4) to provide information on the need for ad-
ditional legislation in this area, if any.
FINDINGS AND DEFINITIONS
SEC. 151. (a) The Congress finds, on the basis of pres-
ently available information, that—
(1) halocarhon compounds introduced into the en-
vironment potentially threaten to reduce the concen-
tration of ozone in the stratosphere;
(2) ozone reduction will lead to increased inci-
dence of solar ultraviolet radiation at the surface of
the Earth:
(3) increased incidence of solar ultraviolet radia-
tion is likely to cause increased rates of disease in
humans (including increased rates of skin cancer),
threaten food crops, and otherwise damage the
natural environment;
(4) other substances, practices, processes, and ac-
tivities may affect the ozone in the stratosphere, and
should be investigated to give early warning of any
potential problem and to develop the basis for possi-
ble future regulatory action; and
(5) there, is some authority under existing law, to
regulate certain substances, practices, processes, and
activities which may affect the ozone in the strato-
sphere.
DEFINITIONS
SEC. l.r>2. For the purposes of this subtitle—
(1) the term "halocarbon" means the chemical
compounds CFCI, and CF:CI; and such other Imlo-
genatod compounds as the. Administrator determines
may reasonably lx» anticipated to contribute to re-
ductions in the concentration of ozone in the strato-
sphere;
(2) the term "stratosphere" means that part of the
atmosphere above the tropopause.
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Chapter One The Clean Air Act
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STUDIES BY ENVIRONMENTAL PIIOTECTION AGENCY
SEC. 153. (a) The Administrator shall conduct a study
of the cumulative effect of all substances, practices, proc-
esses, and activities which may affect the stratosphere,
especially ozone in the stratosphere. The study shnll in-
clude an analysis of the independent, effects on the strato-
sphere especially such ozone in the stratosphere of—
(1) the release into the ambient air of halocarhons,
(2) the release into the ambient air of other
sources of chlorine,
(3) the uses of bromine compounds, and
(4) emissions of aircraft nnd aircraft propulsion
systems employed by operational and experimental
aircraft.
The study shall also include such physical, chemical,
atmospheric, biomedical, or other research and monitor-
ing as may be necessary to ascertain (A) nny direct or in-
direct effects upon the public health and welfare of
changes in the stratosphere, especially ozone in the strato-
sphere, and (B) the probable causes of changes in the
/IfTi16^ j*PeclalIy th«
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Chapter One The Clean Air Act
76
understand (A) the effects of all substances, practices,
processes, and activities which may affect the strato-
sphere, especially ozone in the stratosphere; (B) the
health and welfare effects of modifications of the strato-
sphere, especially ozone in the stratosphere; and (C)
methods of control of such substances, practices, proc-
esses, and activities including alternatives, costs, feasi-
bility, and timing. The Academy shall make a report of
its findings by January 1,1978.
(2) The Administrator shall make available to the
Academy such information in the Administrator's pos-
session as is needed for the purposes of the study pro-
vided for in this subsection.
(e) The Secretary of Labor shall study and transmit a
report to the Administrator and the Congress not later
than six months after date of enactment, with respect to
the losses and gains to industry and employment which
could result from the elimination of the use of halocar-
bons in aerosol containers nnd for other purposes. Such
report shall include recommended menns of Alleviating
unemployment or other undesirable economic impact, it
any, resulting therefrom.
(f)(l) The Administrator shall establish nnd act as
Chairman of a Coordinating Committee for the purpose
of insuring coordination of the efforts of other Federal
agencies carrying out research and studies related to or
supportive of the research provided for in subsections
(a) and (b) and section 154.
(2) Members of the Coordinating Committee shall
include the appropriate official responsible for the rele-
vant research efforts of each of the following ngcncies:
(A) the National Oceanic and Atmospheric
Administration,
(B) the National Aeronautics and Space
Administration,
(C) the Federal Aviation Administration,
(D) the Department of Agriculture.
(E) the National Cancer Institute,
(F) the National Institute of Environmental
Health Sciences,
(G) the National Science Foundation, and the
appropriate officials responsible for the relevant re-
search efforts of such other agencies carrying out
related efforts as the Chairman shall designate. A
representative of the Department of State shall sit
on the Coordinating Committee to encourage and
facilitate international coordination.
(3) The Coordinating Committee shall review and
comment on plans for, and the execution and results of,
pertinent research and studies. For this purpose, the
agencies named in or designated under paragraph (2)
of this subsection shall make appropriate, and timely
reports to the Coordinating Committee on plans for and
the execution and results of such research and studies.
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(4) The Chairman may request a report from any Fed-
eral Agency for the purpose of determining if that
agency should sit on the Coordinating Committee.
(g) Not later than January 1. 1978, and biennially
thereafter, the Administrator shall report to the appro-
priate committees of the House and the Senate, the re-
sults of the studies and research conducted under tins
section and the results of related research and studies
conducted by other Federal agencies.
RESEARCH AND MONITORING BY OTHER AGENCIES
SEC. 154. (a) The Administrator of the National
Oceanic and Atmospheric Administration shall establish
a continuing program of research and monitoring of the
stratosphere for the purpose of early detection of changes
in the stratosphere nnd climatic effects of such changes.
Such Administrator shall on or before January 1, Ifl78,
and biennially thereafter, transmit such report to the Ad-
ministrator and the Congress on the findings of such re-
search and monitoring. Such report shnll contain nny
appropriate recommendations for legislation or regula*-
tion (or both).
(b) The National Aeronautics and Space Administra-
tion shall, pursuant to its authority under title IV of the
National Aeronautics and Space Act of 19.r)8, continue
programs of research, technology, and monitoring of the
stratosphere for the purpose of understanding the physics
and chemistry of the stratosphere and for the earl v'detec-
tion of potentially harmful changes in the ozone in the
stratosphere. Such Administration shall transmit reports
by January 1, 1978, and biennially thereafter to tho Ad-
ministrator and the Congress on the. results of the pro-
grams authorized in this subsection, together with nny
appropriate recommendations for legislation or regula-
tion (or both).
(c) The Director of the National Science Foundation
shall encourage and support ongoing stratospheric re-
search programs and continuing research programs that
will increase scientific knowledge of the effects of changes
in the ozone layer in the stratosphere upon living orgn-
nisms and ecosystems. Such Director shall transmit re-
ports by January 1,1978, and biennially thereafter to the
Administrator and the Congress on the results of siu.-li
programs, together with any appropriate recommenda-
tions for legislation or regulation (or both).
(d) The Secretary of Agriculture shall encourage and
support continuing research programs that will increase
scientific knowledge of the effects of changes in the ozone
in the stratosphere upon animals, crops, and other plnnt
life. Such Secretary shall transmit reports by January 1,
1978. and biennially thereafter to the Administrator and
the Congress on the results of such programs together
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Chapter One The Clean Air Act
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with any appropriate recommendations for legislation or
regulation (or both).
(c) The. Secretary of Health, Education, and Welfare
shall encourage and support continuing research pro-
grams.that will increase scientific knowledge of the ef-
fects of changes in the ozone in the stratosphere upon
human health. Such Secretary shall transmit reports by
January 1, 1078, and biennially thereafter, to the Admin-
istrator and the Congress on the results of such programs.
together with any appropriate recommendations for leg-
islation or regulation (or both).
(f) In carrying out sulisertious (n) through (e) of this
section, the agencies involved (1) shall enlist and encour-
age cooperation and assistance from other Federal agen-
cies, universities, and private industry, and (2) snull
solicit the views of the Administrator with regard to
plans for the research involved so that any such research
will, if regulatory action by the Administrator is in-
dicated, provide the preliminary information base for
such action.
PROGRESS OF REGULATION
SEC. 155. The Administrator shall provide an interim
report to the Congress by January 1, 1978, shall provide
a final report within two years after date of enactment,
and shall provide follow-up reports anually thereafter on
the actions taken by the Environmental Protection
Agency and all other Federal agencies to regulate sources
of halocarbon emissions, the results of such regulations
in protecting the ozone layers, and the need for additional
regulatory action, if any. The reports under this section
shall also include recommendations for the control of sub-
stances, practices, processes, and activities other than
those involving halocarbons, which are found to affect
the ozone in the stratosphere and which may cause or con-
tribute to harmful effects on public health or welfare.
INTERNATIONAL COOPERATION
SRC. 156. The President shall undertake to enter into
international agreements to foster cooperative research
which complements studies and research authorized bv
this part, and to develop standards and regulations which
protect the stratosphere consistent with regulations ap-
plicable within the United States. For these purposes the
President through the Secretary of State and the Assist-
ant Secretary of State for Oceans and International En-
vironmental and Scientific Affairs, shall negotiate multi-
lateral treaties, conventions, resolutions, or other agree-
ments, 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.
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Chaptei One The Clean Air Act
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REGULATIONS
SEC. 157. (a) If at any time prior to the submission of
the final report referred to in section 155 in the Admin-
istrator's judgment, any substance, practice, process, or
activity may reasonably be anticipated to affect the strat-
osphere, 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 simul-
taneously submit notice of the promulgation of such reg-
ulation to the Congress.
(b) Upon submission of the final report referred to in
section 155, and after consideration of the research and
study under sections 153 and 154 and, consultation with
appropriate Federal agencies and scientific entities, the
Administrator shall propose regulations for the control
of any substance, practice, process, or activity (or any
combination thereof) which in his judgment may reason-
ably be anticipated to affect the stratosphere, especially
ozone in the stratosphere, if such effect in the stratosphere
may reasonably be anticipated to endanger public health
or welfare. Such regulations shall take into account the
feasibility and the cost* of achieving such control. Such
regulations may exempt medical use products for which
the Administrator determines there is no suitable sub-
stitute. Not later than three months after proposal of
such regulations the Administrator shall promulgate such
regulations in final form. From time to time, and under
the same procedures, the Administrator may revise any
of the regulations submitted under this subsection.
OTHEB PROVISIONS UNAFFECTED
SEC. 158. Nothing in this part shall be construed to
alter or affect the authority of the Administrator under
section 303 (relating to emergency powers), under section
231 (relating to aircraft emission standards), or under
any other provision of this Act or to affect the authority
of any other department, agency, or instrumentality of
the United States under any other provision of law to
promulgate or enforce any requirement respecting the
control of any substance, practice, process, or activity for
purposes of protecting the stratosphere or ozone in the
stratosphere. In the case of any proposed rule respecting
ozone in the stratosphere which has been published under
the Toxic Substances Control Act prior to the date of
enactment of this Act notwithstanding section 9(b) of
such Act. nothing in this part shall be construed to pro-
hibit or restrict the Administrator from taking any
action under the Toxic Substances Control Act respect-
ing the promulgation or enforcement of such rule.
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STATE AOTHORITT
SEC. 159. (a) Nothing in this part shall preclude or
deny any State or political subdivision thereof from
adopting or enforcing any requirement respecting the
control of any substance, practice, process, or activity for
purposes of protecting the stratosphere or ozone in the
stratosphere except aa otherwise provided in subsection
(b).
(b) If a regulation of any substance, practice, process.
or activity is m effect under this part in order to prevent
or abate any risk to the stratosphere, or ozone in the
stratosphere, no State or political subdivision thereof
may adopt or attempt to enforce any requirement re-
specting the control of any such substance, practice, proc-
ess, or activity to prevent or abate such risk, unless the
requirement of the State or political subdivision is iden-
tical to the requirement of such regulation. The preceding
sentence shall not apply with respect to any law or regu-
lation of any State or political subdivision controlling
the use of halocarbons as propellants in aerosol spray
containers.
PART C—PREVENTION or SIGNIFICANT DETERIORATION or
An QUALITY
BUBTABT 1
SEC. 160. 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 Ad-
ministrator's judgment may reasonably be antici-
pated to occur from air pollution or. from exposures
to pollutants in other media, which pollutants orig-
inate as emissions to the ambient air), notwithstand-
ing attainment and maintenance of all national am-
bient air quality standards;
(2) to preserve, protect, and enhance the air qual-
ity in national parks, national wilderness areas,
national monuments, national seashores, and other
areas of special national or regional natural, recrea-
tional, scenic, or historic value;
(3) to insure that economic growth will occur in
a manner consistent with the preservation of exist-
ing clean air resources:
(4) to assure that emissions from any source in
any state wHl not interfere with any portion of the
applicable implementation plan to prevent signifi-
cant deterioration of air quality for any other
State; and
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Chapter One The Clean Air Act
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(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 con-
sequences of such a decision and after adequate pro-
cedural opportunities for informed public participa-
tion in the decisionmaking process.
PLAN REQUIREMENTS
SEC. 161. In accordance with the policy of section 101
(b)(l), each applicable implementation plan shall con-
tain emission limitations and such other measures as may
be necessary, as determined under regulations promul-
gated under this part, to prevent significant deterioration
of air quality in each region (or portion thereof) identi-
fied pursuant to section 107(d)(l) (D) or (E).
INITIAL CLASSIFICATIONS
SEC. 162. (a) 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 the date of
enactment of the Clean Air Act Amendments of
1977 shall be class I areas and may not be redesig-
nated. All areas which were redesignated as class I
under regulations promulgated before such date of
enactment shall be class I areas which may be re-
designated as provided in this part.
(b) All areas in such State identified pursuant to sec-
tion 107(d) (1) (D) or (E) which are not established as
class I under subsection (a) shall be class II areas unless
redesignated under section 184.
IlfCIElCElfTB AND CEILINGS
SBC. 168. (a) In the case of sulfur oxide and particu-
late matter, each applicable implementation plan shall
contain measures assuring that maximum allowable in-
creases 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
165(d) (2) (C) (iv)) for a pollutant based on concentra-
tions permitted under national ambient air quality stand-
ards for any period other than an annual period, such
regulations shall permit such maximum allowable in-
crease to be exceeded during one such period per year.
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(b) (1) For any class I area, the maximum allowable
increase in concentrations of sulfur dioxide and particu-
late matter over the baseline concentration of such pol-
lutants shall not exceed the following amounts:
/>0""<0"' Uaslmnm allowable increait
Participate matter: (mieroprami per cubic meter)
Annual geometric mean 5
Twenty-four-hour maximum 10
Sulfur dioxide:
Annual arithmetic mean 2
Twenty-four-hour maximum 8
Three-hour maximum 25
(2) For any class II area, the maximum allowable in-
crease in concentrations of sulfur dioxide and particu-
late matter over the baseline concentration of such pol-
lutants shall not exceed the following amounts:
Pollutant Itofimnm allowable Inertan
Partlculate matter: (microgramt per cubic Meter)
Annual geometric mean. 19
Twenty-four-hour maximum 37
Sulfur dioxide:
Annual arithmetic mean 20
Twenty-four-boar maximum M
Three-hoar maximum 512
(3) For any class III area, the maximum allowable
increase in concentrations of sulfur dioxide and particu-
late matter over the baseline concentration of such
pollutants shall not exceed the following amounts:
Pollutant Mffittum oUoteotl* tnmrati
PartlCUlate matter: (mieroynwu ptr cubic meter)
Annual geometric mean 37
Twenty-four-boar maximum 75
Sulfur dioxide:
Annual arithmetic mean 40
Twenty-four-hour maximum 182
Three-boar maximum 700
(4) The maximum allowable concentration of any air
pollutant in any area to which this part applies shaft not
exceed a concentration for such pollutant for each period
of exposure equal to—
(A) the concentration permitted under the na-
tional secondary ambient air quality standard, or
(B) the concentration permitted under the na-
tional primary ambient air quality standard,
whichever concentration is lowest for such pollutant for
such period of exposure.
(c) (1) In the case of any State which has a plan ap-
proved by the Administrator for purposes of carrying
out this part, the Governor of such State may, after no-
tice and opportunity for public hearing, issue orders or
promulgate rules providing that for purposes of deter-
mining compliance with the maximum allowable in-
creases in ambient concentrations of an air pollutant, the
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Chapter One The Clean Air Act
83
following concentrations of such pollutant shall not he
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 sec-
tions 2 (a) and (b) of the Energy Supply and En-
vironmental Coordination Act of 1974 (or any sub-
sequent legislation which supersedes such provisions)
over the emissions from such sources before the effec-
tive date of such order.
(B) the concentrations of such pollutant attribut-
able 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 over the emissions from such
sources before the effective date of such plan.
(C) concentrations of particulate matter attribut-
able 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 con-
centrations Attributable to existing sources which are
included in the baseline concentration determined in
accordance with section 169(4).
(2) No action taken with respect to a source under par-
agraph (1) (A) or (1)(B) shall apply more than five
years after the effective date of the order referred to in
ffwfi^vW^ 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
hvc/«*« »««r the later of such effective dates.
iJXi N£*ctlon under th» subsection shall take effect un-
less the Governor submits the order or rale providing for
such exclusion to the Administrator and the Administra-
tor determines that such order or rale is in compliance
with the provisions of this subsection.
ADA REDMIOlfATIOK
Sec. 164. (a) Except as otherwise provided under sub-
section (c), a State may redesignate such areas as it
deems appropriate as class I areas. The following areas
mayberedesignatedonlyasclasslorll:
(1) an area which exceeds ten thousand acres in
size and is a national monument, a national primi-
tive area, a national preserve, a national recreation
l^rJ nailoni1 Wlld and «*nic river, a national
wi dlife refuge, a national lakeshore or seashore, and
(2) a national park or national wilderness area es-
CAA Covpllance/Boforceaent 1-94 Guidance *fnml 1986
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Chapter One The Clean Air Act
84
tablished after the date of enactment of this Act
which exceeds ten thousand acres in size.
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 162(a)) may be redesignated by
the State as class III if—
(A) such redesignation has been specifically ap-
proved by the Governor of the State, after consulta-
tion with the appropriate Committees of the legisla-
ture 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 bo specifically
approved by State legislation) and if general pur-
pose units of local government representing a ma-
jority of the residents of the aiea so redesignated
enact legislation (including for such units of local
government resolutions where appropriate) concur-
ring in the State's redesignation;
(B) such redesignation will not cause, or contri-
bute to, concentrations of any air pollutant which
exceed any maximum allowable increase or maxi-
mum allowable concentration permitted under the
classification of any other are*; and
(C) such redesignation otherwise meets the re-
quirements of this part.
Subparagraph (A) of this paragraph shall not apply to
area redesignations by Indian tribes.
(b) (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 re-
designation. Prior to any such public hearing • satisfac-
tory description and analysis of the health, environ-
mental, economic, social, and energy effects of the pro-
posed 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 re-
viewed 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 land*, the
State shall provide written notice to the appropriate Fed-
eral land manager and afford adequate opportunity (bnt
not in excess of 60 days) to confer with the State respect-
ing 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 rec-
ommendations and an explanation of such inconsistency
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Chapter One The Clean Air Act
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(together with the reasons for making such redesignation
against the recommendation of thn Federal land
manager).
(C) The Administrator shall promulgate regulations
not later than six months after date of enactment of this
part, 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 redeaignated as class
(2) The Administrator may disapprove the redesigna-
tion of any area only if he finds, after notice and op-
portunity for public hearing, that such redesignation does
not meet the procedural requirements of this section or U
inconsistent with the requirements of section 162(a) 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 wax
disapproved.
(c) Lands within the exterior boundaries of reserva-
tions of federally recognized Indian tribes may be re-
designated only by the appropriate Indian qoverniiur
body. Such Indian governing body shall be subject in nil
respect to the provisions of subsection (e).
(d) The Federal Land Manager shall review all na-
tional monuments, primitive areas, and national pre-
serves, and shall recommend any appropriate areas for
redesignation as class I where air quality related values
are important attributes of the area. The Federal I*nd
Manager shall report such recommendations, within sup-
porting analysis, to the Congress and the affected States
within one year after enactment of this section. The Fed-
eral Land Manager shall consult with the appropriate
States before making such recommendations.
(e) If any State affected by the redemgnation of an
area by an Indian tribe or any Indian tribe affected bv
the redesigBatiflii of an ana 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 nart
within the affected State or tribal reservation, the Gov-
ernor or Indian ruling body may request the Adminis-
trator 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
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Chapter One The Clean Air Act
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parties involved do not reach agreement, the Administra-
tor 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 enforce-
able as part of such plan. In resolving such disputes relat-
ing 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.
PRECO.VSTRt'CTION REQUIREMENTS
SEC. 165. (a) No major emitting facility on •which con-
struction is commenced after the date of the enactment
of this part, 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 con-
form to the requirements of this part;
(2) the proposed permit has been subject to a re-
view in accordance with this section, the required
analysis has been conducted in accordance with reg-
ulations promulgated by the Administrator, and ft
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 re-
quirements, and other appropriate considerations;
(3) the owner or operator of such facility dem-
onstrates, as required pursuant to section 110(j), 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 Act:
(4) the proposed facility is subiect to the best
available control technology for each pollutant sub-
ject to regulation tinder this Act emitted from, or
which results from.such facility;
(•T) the provisions of subsection (d) with respect
to protection of clnss I areas have been complied
with for such facility;
(8) there has been nn analysis of any air quality
impacts projected for the area ns a result of growth
associated with such facility;
(7) the person who owns or operates, or proposes
to own or operate, a mnjor emitting facility for
CAA €ovpiiance/&nforce*enc i-97 Guidaaee nonual 1986
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Chapter One The Clean Air Act
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which :i permit is required nml necrs«nrv •••
determine the effect which emissions from nnv nui-li
facility may have, or is having, on air quality in any
area which may be affected by emissions from surh
source; and
(8) in the case of a source which proposes to con-
struct in a class III area, omissions from which
would cause or contribute to exceeding the maximum
allowable increments applicable in a class II area
and where no standard under section 111 of this Act
has been promulgated subsequent to enactment of
the Clean Air Act Amendments of 1977, for such
source category, the Administrator has approved the
determination of best available technology as set
forth in.the permit.
(b) The demonstration pertaining to maximum allow-
able increases required under subsection (a) (3) 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 the date of en-
actment of the Clean Air Act Amendments of 1077. whose
allowable emissions of air pollutant*, after compliance
with subsection (a) (4), will be less than fifty tons per
year and for which the owner or operator of such facility
demonstrates that emissions of particulate matter and
sulfur 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.
iiACl Any comPIete
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Chapter One The Clean Air Act
88
(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 Lnnd Manager of
such Innds, or the Administrator, or the Governor of an
adjacent State containing such a class I area files n 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 participate 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 ex-
ceed 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 certi-
fies, 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 concentra-
tions 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 lim-
itations under such permit as may be necessary to assure
that emissions of sulfur oxides and particulars from such
facility, will not cause or contribute to concentrations of
such pollutant which exceed the following maximum al-
lowable increases over the baseline concentration for such
pollutants:
_ . Itmftmum altetembU Imertmn
Particular matter: (miengmmf ptr nMe mittr)
Annual geometric mean. „ 49
Twenty-four-hour maximum. 37
Sulfur dioxide:
Annual •rlthmetle 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 subparmgraph (C) (iii) demonstrates
to the satisfaction of the Governor, after notice and pub-
lic hearing, and the Governor finds, that the facility can-
not be constructed by reason of any maximum allowable
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Chapter One
The Clean Air Act
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increase for sulfur dioxide for periods of twenty-four
hours or less applicable to any class I area and, in the case
of i-ederal 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 rec-
ommendation (if any) and subject to his concurrence,
may grant a variance from such maximum allowable in-
crease. If such variance is granted, a permit may be is-
sued to such source pursuant to the requirements of this
subparagraph.
(ii) In any case in which the Governor recommends a
ranSnw 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 ap-
prove 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 dis-
approve 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
subparograph, such facility shall comply with such emis-
sion limitations under such permit as may be necessary
to assure that emissions of sulfur oxides from such fa-
cility 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 an-
nual period:
Ifleroframt per
cable meter
36
130
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Chapter One __^_____ The Clean Air Act
90
(e)(l) The review provided for in subsection (a)
shall be preceded by an analysis in accordance with regu-
lations 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 ma-
jor 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 Act
which win be emitted from such facility.
(2) Effective one year after date of enactment of this
part, the analysis required by this subsection shall in-
clude continuous air quality monitoring data gathered
for purposes of determining whether emissions from
such facility will exceed the maximum allowable in-
creases or the maximum allowable concentration per-
mitted under this part. Such data shall be gathered over
a period of one calendar year preceding the date of ap-
plication for a permit under this part unless the State,
in accordance with regulations promulgated by the Ad-
ministrator, determines that a complete and adequate
analysis for such purposes may be accomplished in a
shorter period. The results of such analysis shall be avail-
able at the time of the public hearing on the application
for such permit.
(3) The Administrator shall within six months after
the date of enactment of this part 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 Act which will be
emitted from, or which results from the construc-
tion or operation of, such facility, the size and na-
ture of the proposed facility, the degree of continu-
ous emission reduction which could be achieved by
such facility, and such other factors as may be rele-
vant 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, ana
(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
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Chapter One The Clean Air Act
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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 ap-
plying for a permit required under this part.
OTHER POLLUTANTS
SEC. 166. (a) In the case of the pollutants hydrocar-
bons, carbon monoxide, photochemical oxidants, and ni-
trogen oxides, the Administrator shall conduct a study
and not later than two years after the date of enactment
of this part, promulgate regulations to prevent the sig-
nificant deterioration of air quality which would result
from the emissions of such pollutants. In the case of pol-
lutants for which national ambient air quality stand-
ards are promulgated after the date of the enactment of
this part, he shall promulgate such regulations not more
than 2 years after the date of promulgation of such
standards.
(b) Regulations referred to in subsection (a) shall be-
come 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 110.
(c) Such regulations shall provide specific numerical
measures against which permit applications may be eval-
uated, a framework for stimulating improved control
technology, protection of air quality values, and fulfill
the goals and purposes set forth in section 101 and sec-
tion 160.
(d) The regulations of the Administrator under sub-
section (a) shall provide specific measures at least as
effective as the increments established in section 163 to
fulfill such goals and purposes, and may contain air qual-
ity increments, emission density requirements, or other
measures.
(e) With respect to any air pollutant for which a
national ambient air quality staudard is established other
than sulfur oxides or particulate matter, an area classi-
fication 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 110(c) contains other pro-
visions which when considered as a whole, the Admin-
istrator finds will carry out the purposes in section 160 at
least as effectively as an area classification plan for such
pollutant Such other provisions referred to in the pre-
ceding sentence need not require the establishment of
maximum allowable increases with respect to such
pollutant for any area to which this section applies.
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ENFORCEMENT
SEC. 167. The Administrator shall, and a State may,
take such measures, including issuance, of an order, or
seeking injunctive relief, as necessary to prevent the con-
struction of a major emitting facility which does not
conform to the requirements or this part, or which is pro-
posed to be constructed in any area included in the list
promulgated pursuant to paragraph (1)(D) or (E) of
subsection (d) of section 107 of this Act and which is not
subject to an implementation plan which meets the re-
quirements of this part.
PERIOD BEFORE PLAN APPROVAL
SEC. 168. (a) Until such time as an applicable imple-
mentation plan is in effect for any area, which plan meets
the requirements of this part to prevent significant de-
terioration of air quality with respect to any air pollut-
ant, applicable regulations under this Act prior to
enactment of this part 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).
(b) If any regulation in effect prior to enactment of
this part to prevent significant deterioration of air qual-
ity would be inconsistent with the requirements of section
162(a), section 163(b) or section 164(a), then such regu-
lations shall be deemed amended so as to conform with
such requirements. In the case of a facility on which con-
struction was commenced (in accordance with this defi-
nition of "commenced" in section 169(2)) after June 1,
1975, and prior to the enactment of the Clean Air Act
Amendments of 1977, the review and permitting of such
facility shall be in accordance with the regulations for
the prevention of significant deterioration in effect prior
enactment of the C1**11 Air Act Amendments of
DfiJHN 1T1ON8
SEC. 169. 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 hund-
red 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 dry-
ers), 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
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charging more thtin two hundred and fifty tons of
refuse per day, hydrofluoric, sulfuric, and nitric
acid plants, petroleum refineries, lime plants, phos-
phate rock processing plants, coke oven batteries,
sulfur recovery plants, carbon black plants (furnace
process) primary lead smelters, fuel conversion
plants, sintering plants, secondary metal produc-
tion 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 ex-
ceeding three hundred thousand barrels, taconite ore
processing facilities, glass fiber processing plants,
charcoal production facilities. Such term also in-
cludes 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 con-
struction of a major emitting facility means that
the owner or operator has obtained all necessary
preconstruction approvals or oermits 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 ob-
ligations, which cannot be canceled or modified with-
out 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 ap-
provals or permits" means those permits or approvals
required by the permitting authority as a precondi-
tion to undertaking any activity under clauses (i)
or (ii) of subparagraph (A) of this paragraph.
(C) The term "construction" when used in con-
nection with any source or facility, includes the
modification (as defined in section 111 (a)) 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 regu-
lation under this Act emitted from or which results
from any major emitting facility, which the permit-
ting authority, on a case-by-case basis, taking into
account energy, environmental, and economic im-
pacts and other costs, determines is achievable for
such facility through application of production
processes and available methods, systems, and tech-
niques, including fuel cleaning or treatment or
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Chapter One The Clean Air Act
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innovative fuel combustion techniques for control of
onch such pollutant. In no event shall application of
"best available control technology'* result in emis-
sions of any pollutants which will exceed the emis-
sions allowed by any applicable standard established
pursuant to section 111 or 112 of this Act
(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, rased on
air quality data available in the Environmental Pro-
tection Agency or a State air pollution control
agency and on such monitoring data as the permit
applicant is required to submit Such ambient con-
centration levels shall take into account all pro-
jected emissions in. or which may affect, such area
from any major emitting facility on which construc-
tion 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 com-
menced after January 6. 1975, shall not be included
in the baseline and shall be counted against the
maximum allowable increases in pollutant concentra-
tions established under this part.
StTBPABT 2
VISIBILITY PROTECTION FOR FEDERAL CLASS I AREAS
SEC. 169A. (a) (1) Congress hereby declares as a na-
tional goal the prevention of any future, and the rem-
edying 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 the date of the
enactment of this section, 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 re-
vise such identifications. Not later than one year after
such date of enactment, the Administrator snail, after
consultation with the Secretary of the Interior, promul-
gate a list of mandatory class t Federal areas in which he
determines visibility is an important value.
(3) Not later than eighteen months after the date of
enactment of this section, the Administrator shall com-
plete 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—
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The Clean Air Act
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available retrofit technology, as determined by
the State (or the Administrator in the case of a
plan promulgated under section 110(c)) 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) strat-
egy for making reasonable progress toward
meeting the national goal specified in subsection
(»)-
In the case of a fossil-fuel fired generating powerplant
having a total generating capacity in excess of 750 mega-
watts, the emission limitations required under this para-
graph shall be determined pursuant to guidelines, pro-
mulgated by the Administrator under paragraph (1).
(c) (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), 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 reason-
ably be anticipated to cause or contribute to A significant
impairment of visibility in any mandatory class I Fed-
eral 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 Ad-
ministrator under subsection (a) (2) that such power-
plant 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 sig-
nificant impairment of visibility in any such area.
(3) An exemption under this subsection shall be effec-
tive only upon concurrence by the appropriate Federal
land manager or managers with the Administrator's
determination under this subsection.
(d) Before holding the public hearing on the pro-
posed 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 110(c)) shall consult in person with the appro-
priate Federal land manager or managers and shall in-
clude a summary of the conclusions and recommenda-
tions of the Federal land managers in the notice to the
public.
(e) In promulgating regulations under this section,
the Administrator shall not require the use of any auto-
matic or uniform buffer zone or zones.
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(f) For purposes of section 304(a) (2), the meeting of
the national goal specified in subsection (a)(l) by any
specific date or dates shall not be considered a "nondis-
cretionary duty" of the Administrator.
(g) For the purpose of this section—
(1)i 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 com-
pliance, and the remaining useful life of any exist-
ing source subject to such requirements;
(2) in determining best available retrofit technol-
ogy 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 im-
pacts 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 re-
sult 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 pro-
mulgation of such a plan revision in the case of
action by the Administrator under section 110(c)
for purposes of this section) ;
(5) the term "mandatory class I Federal areas'r
means Federal areas which may not be designated
as other than class I under this part;
(6) the terms "visibility impairment" and "im-
pairment 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 po-
tential 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 in-
put, coal cleaning plants (thermal dryers), kraft
pulp mills, Portland Cement plants, primary zinc
smelters, iron and steel mill plants, primary alumi-
num ore reduction plants, primary copper smelters,
municipal incinerators capable of charging more
than 250 tons of refuse per day, hydrofluoric, sul-
furic, and nitric acid plants, .petroleum refineries,
lime plants, phosphate rook processing plants, coke
oven batteries, sulfur recovery plants, carbon black
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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.
PART D—PLAN REQUIREMENTS FOR NONATTAINMENT
AREAS
DEFINITIONS
SEC. 171. For the purpose of this part and section
)(2)(I) —
(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 110(a)(2)(I) and regular reductions there-
after) which are sufficient in the judgment of the
Administrator, to provide for attainment of the
npplicnble national ambient air quality standard by
the date required in section 172(a).
(2) The term "nonattainrnent area" means, for
any air pollutant an area which is shown by moni-
tored data or which is calculated by air quality
modeling (or other methods determined by the Ad-
ministrator to be reliable) to exceed any national
ambient air quality standard for such pollutant.
Such term includes any area identified under sub-
paragraphs (A) through (C) of section 107(d)(l).
(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 demonstartes 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 pollut-
ant, in excess of the amount allowable under appli-
cable new source standards of performance.
(4) The terms "modifications" ojrid "modified"
mean the same as the term "modification" as used in
section lll(a)(4) of this Act.
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NONATTAINMENT PLAN PROVISIONS
SEC. 172. (a)(l) The provisions of an applicable im-
plementation plan for a State relating to attainment
and maintenance of national ambient air quality stand-
ards in any nonattainmont area which are required by
section 110(a)(2)(I) as precondition for the construc-
tion or modification of any major stationary source in
any such area on or after July 1, 1979, shall provide for
attainment of each such national ambient air quality
standard in each such area as expeditiously as practi-
cable, but, in the case of national primary ambient air
quality standards, not later than December 31, 1982.
(2) In the case of the national primary ambient nir
quality standard for photochemical oxidants or carbon
monoxide (or both) if the State demonstrates to the
satisfaction of the Administrator (on or before the time
required for submission of such plan) that such at-
tainment is not possible, in an area with respect to either
or both of such pollutants within the period prior to
December 31, 1982, despite the implementation of all
reasonably available measures, such provisions shall pro-
vide for the attainment of the national primary stand-
ard for the pollutant (or pollutants) with respect to
which such demonstration is made, as expeditiously as
practicable but not later than December 31, 1987.
(b) The plan provisions required by subsection (a)
shall—
(1) be adopted by the State (or promulgated by
the Administrator under section 110(c)) after rea-
sonable notice and public hearing;
(2) provide for the implementation of all reason-
ably available control measures as expeditiously as
practicable;
(3) require, in the interim, reasonable further
progress (as defined in section 171(1)) including
such reduction in emissions from existing sources
in the area as may be obtained through the adop-
tion, at a minimum, of reasonably available control
technology;
(4) include a comprehensive, accurate, current in-
ventory of actual emissions from all sources (as pro-
vided by rule of the Administrator) of each such
pollutant for each such area which is revised and
resubmitted as frequently as may be necessary to as-
sure that the requirements of paragraph (3) are met
and to assess the need for additional reductions to
assure attainment of each standard by the date re-
quired under subsection (a);
(5) expressly identify and quantify the emissions,
if any, of any such pollutant which will be allowed
to result from the construction and operation of ma-
jor new or modified stationary sources for each such
area;
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Chapter One The Clean Air Act
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(6) require permits for the construction and
operation of new or modified major stationary
sources in accordance with section 173 (relating to
permit requirements);
(7) identify and commit the financial and man-
power resources necessary to carry out the plan pro-
visions required by this subsection;
(8) contain emission limitations, schedules of com-
pliance and such other measures as may be necessary
to meet the requirements of this section;
(9) evidence public, local government, and State
legislative involvement and consultation in accord-
ance with section 174 (relating to planning proce-
dures) and include (A) an identification and anal-
ysis of the air quality, health, welfare, economic,
energy, and social effects of the plan provisions
required by this subsection and of the alternatives
considered by the State, and (B) a summary of the
public comment on such analysis;
(10) include written evidence that the State, the
general purpose local government or governments,
or a regional agency designated by general purpose
local governments for such purpose, have adopted by
statute, regulation, ordinance, or other legally en-
forceable document, the necessary requirements and
schedules and timetables for compliance, and are
committed to implement and enforce the appropri-
ate elements of the plan;
(11) in the case of plans which make a demon-
stration pursuant to paragraph (2) of subsection
(a)—
(A) establish a program which requires,
prior to issuance of any permit for construc-
tion or modification of a major emitting fa-
cility, an analysis of alternative sites, sizes, pro-
duction processes, and environmental control
techniques for such proposed source which dem-
onstrates that benefits of the proposed source
significantly outweigh the environmental and
social costs imposed as a result of its location,
construction, or modification;
(B) establish a specific schedule for imple-
mentation of a vehicle emission control inspec-
tion and maintenance program; and
(C) identify other measures necessary to pro-
vide for attainment of the applicable national
ambient air quality standard not later than
December 31. 1987.
(ct In the case of a Stnte plan revision required under
the Clean Air Act Amendments of 1977 to be submitted
before July 1. 1982. bv reason of a demonstration under
subsection (a) (2K effective on such date such plan shall
contain enforceable measures to assure attainment of the
applicable standard not later than December 31,1987.
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Chapter One The Clean Air Act
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PERMIT REQUIREMENTS
SEC. 173. The permit program required by section
172(b)(6) shall provide that permits to construct and
operate may be issued if—
(1) the permitting agency determines that—
(A) by the tuno the source is to commence
operation, total allowable emissions from exist-
ing 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
allowed under the applicable implementation
plan 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 172) reasonable further
progress (as defined in section 171); or
(B) that emissions of such pollutant resulting
front the proposed new or modified major sta-
tionary source will not cause or contribute to
emissions levels which exceed the allowance per-
mitted for such pollutant for such area from
new or modified major stationary sources under
section 172 (b);
(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 compli-
ance, or on a schedule for compliance, with all
applicable emission limitations and standards under
this Act; and
(4) the applicable implementation plan is being
carried out for the nonattainment area in which
the proposed source is to be constructed or modified
in accordance with the requirements of this part.
Any emission reductions required as a precondition of
the issuance of a permit under paragraph (1) (A) shall
be legally binding before such permit mav be issued.
PLANTfTNO PROCEDURES
SBC. 174. (a) Within six months after the enactment of
the Clean Air Act Amendments of 1977, for each region
in which the national primary ambient air quality stand-
ard for carbon monoxide or photochemical oxidants will
not be attained by July 1, 1979, the State and elected
officials of affected local governments shall jointly deter-
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Chapter One The Clean Air Act
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mine which elements of a revised implementation plan
will be planned for and implemented or enforced by the
State and which such elements will be planned for and
implemented or enforced by local governments or re-
gional agencies, or any combination of local governments,
regional agencies, or the State. Where possible within
the time required under this subsection, the implementa-
tion plan required by this part shall be prepared by an
organization of elected officials of local governmenta'des-
ignated by agreement of the local governments in an af-
fected area, and certified by the State for this purpose.
Where such an organization has not been designated by
agreement within six months after the enactment of the
Clean Air Act Amendments of 1977, the Governor (or,
in the case of an interstate area. Governors), after con-
sultation with elected officials of local governments, and
in accordance with the determination under the first
sentence of this subjparagraph, shall designate an organi-
zation of elected officials of local governments in the af-
fected area or a State agency to prepare such plan.
Where feasible, such organization shall be the metropoli-
tan planning organization designated to conduct the con-
tinuing, cooperative and comprehensive transportation
planning process for the area under section 134 of title
23, United States Code, or the organization responsible
for the air quality maintenance planning process under
regulations implementing this section, or the organiza-
tion with both responsibilities.
(b) The preparation of implementation plan provi-
sions under this part shall be coordinated with the con-
tinuing, cooperative, and comprehensive transportation
planning process required under section 134 of title 23,
United States Code, and the air quality maintenance
planning process required under section 110, and such
planning processes shall take into account the require-
ments of this part.
ENVIRONMENTAL PROTECTION AOF.VCT GRANTS
SEC. 175. (a) The Administrator shall make grants
to any organization of local elected officials with trans-
portation or air quality maintenance planning respon-
sibilities recognized by the State under section 174(a)
for payment of the reasonable costs of developing n plan
revision under this part.
(b) The amount granted to any organization tinder
subsection (a) 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 .arrant
under this paragraph, nnd shall supplement any funds
available under Federal law to such organization for
transportation or air quality maintenance planning.
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Chapter One The Clean Air Act
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Grants under this section shall not be used for construc-
tion.
LIMITATIONS ON CERTAIN FEDERAL ASSISTANCE
SEC. 176. (a) The Administrator shall not approve
any projects or award any grants authorized by this Act
and the Secretary of Transportation shall not approve
any projects or award any grants under title 23, United
States Code, other than for safety, mass transit, or trans-
portation improvement projects related to air quality
improvement or maintenance, in any air quality control
region—
(1) in which any national primary ambient air
quality standard has not been attained.
(2) where transportation control measures are nec-
essary for the attainment of such standard, and
(3) where the Administrator finds after July 1.
1979, that the Governor has not submitted an im-
plementation plan which considers each of the ele-
ments required by section 172 or that reasonable
efforts toward submitting such an implementation
plan are not being made (or, after July 1, 1982. in
the case of an implementation plan revision required
under section 172 to be submitted before Jiilv 1.
1982).
(b) In any area in which the State or. as the case may
be, the general purpose local government or govern-
ments or any regional agency designated by such general
purpose local governments for such purpose, is not im-
plementing any requirement of an approved or promul-
gated plan under section 110, including any requirement
tor a revised implementation plan under this part, the
Administrator shall not make any grants under this Act.
(c) No department, agency, or instrumentality of the
Federal Government shall (1) engage in. (2) support in
any way or provide financial assistance for, (3) license or
permit, or (4) approve, any activity which does not con-
form to a plan after it has been approved or promulgated
tinder section 110. No metropolitan planning organiza-
tion designated under section 134 of title 23, United
States Code, shall give its approval to any project, pro-
gram, or plan which does not conform to a plan approved
or promulgated under section 110. The assurance of con-
formity to such a plan shall be an affirmative responsi-
bility of the head of such department, agency, or instru-
mentality.
(d) Each department, agency, or instrumentality of
the Federal Government having authority to conduct or
support any program with nir-qnnlity related transpor-
tation consequences shall give priority in the exercise of
such authority, consistent with statutory requirements
for allocation among States or other jurisdictions, to the
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Chapter One • The Clean Mr
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implementation of those portions of plans prepared un-
der this section to achieve and maintnm the national pri-
mary ambient air quality standard. This paragraph ex-
tends to. but is not limited to, authority exercised under
the Urban Mass Transportation Act, title 23 of the
United States Code, and the Housing and Urban De-
velopment Act.
NEW MOTOR VEHICLE EMISSION STANDARDS IN
NONATTAINMENT AREAS
SEC. 177. Notwithstanding section 209(a), 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 209(a) respecting such vehicles
(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 stand-
ards at least two years before commencement of such
model year (as determined by regulations of the
Administrator).
OUTDANCE DOCUMENTS
SEC. 178. The Administrator shall issue guidance docu-
ments under section 108 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 the date of
enactment of this part and shall be revised at least every
two years thereafter.
TITLE II—EMISSION STANDARDS FOB
MOVING SOURCES
SHORT TITLE
SEC. 201. This title may be cited as the "National Emis-
sion Standards Act."
PART A—MOTOR VEHICLE EMISSION AND FUEL
STANDARDS
ESTABLISHMENT OP STANDARDS
SEC. 202. (a) Except as otherwise provided in subsec-
tion (b)—
(1) The Administrator shall by regulation pre-
scribe (and from time to time revise) in accordance
with the provisions of this section, standards appli-
cable to the emission of any air pollutant from any
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Chapter One The Clean Air Act
105
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), relating to useful life of ve-
hicles for purposes of certification), whether such
vehicles and engines are designed as complete sys-
tems 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 Adminis-
trator finds necessary to permit the development and
application of the requisite technology, giving ap-
propriate consideration to the cost of compliance
within such period.
(3) (A) (i) The Administrator shall prescribe reg-
ulations under paragraph (1) of this subsection
applicable to emissions of carbon monoxide, hydro-
carbons, and oxides of nitrogen from classes or cate-
gories of heavy-duty vehicles or engines manufac-
tured during and after model year 1979. Such regu-
lations applicable to such pollutants from such
classes or categories of vehicles or engines manu-
factured during model yean 1979 through 1982 shall
contain standards which reflect the greatest degree
of emission reduction achievable through the appli-
cation of technology which the Administrator deter-
mines will be available for the model year to which
such standards apply, giving appropriate considera-
tion to the cost of applying such technology within
the period of time available to manufacturers and
to noise, energy, and safety factors associated with
(ii) Unless a different standard is temporarily
promulgated as provided in subparagraph (B) or
unless the standard is changed as provided in sub-
paragraph (E), regulations under paragraph (1)
of this subsection applicable to emissions from
vehicles or engines manufactured during and after
model year—
(I) 1983, in the case of hydrocarbons and car-
bon monoxide, shall contain standards which
require a reduction of at least 90 per cent, and
(II) 1985, in the case of oxides of nitrogen,
shall contain standards which require a reduc-
tion of at least 75 per cent,
from the average of the actually measured emissions
from heavy-duty gasoline-fueled vehicles or en-
gines, or any class or category thereof, manufactured
during the baseline model year.
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Chapter One The Clean Air Act
(iii) The Administrator shall prescribe regula-
tions under paragraph (1) of this subsection appli-
cable to emissions of particulate matter from classes
or categories of vehicles manufactured during and
after model year 1981 (or during any earlier model
year, if practicable). Such regulations shall contain
standards which reflect the greatest degree of emis-
sion reduction achievable through the application of
technology which the Administrator determines will
be available for the model year to which such stand-
ards 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 ap-
plication of such technology. Such standards shall
be promulgated and shall take effect as expeditiously
as practicable taking into account the period neces-
sary for compliance.
(iv) In establishing classes or categories of ve-
hicles or engines for purposes of regulations under
this paragraph, the Administrator may base such
classes or categories on gross vehicle weight, horse-
power, or such other factors as may be appropriate.
(v) For the purpose of this paragraph, the term
"baseline mode) year" means, with respect to any pol-
lutant emitted from any vehicle or engine, or class
or category thereof, the model year immediately
preceding the model year in which Federal standards
applicable to such vehicle or engine, or class or cate-
gory thereof, first applied with respect to such
pollutant.
(B) During the period of June 1 through Decem-
ber 31. 1978, in the case of hydrocarbons und carbon
monoxide, or during the period of June 1 through
December 31, 1980, in the cose of oxides of nitrogen.
and during each period of June 1 through Decem-
ber 31 of each third year thereafter, the Administra-
tor may, after notice and opportunity for a public
hearing promulgate regulations revising any stand-
ard 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 pe-
riod of three model years beginning four model years.
after the model year in which such revised standard
is promulgated. In revising any standard under tliis
subparagraph for any such three model year period,
the Administrator shall determine the maximum de-
gree of omission reduction which can be achieved by
means reasonably expected to l>e available for pro-
duction of such period and shall prescribe a revised
emission standard in accordance with such deter-
mination. Such revised standard shall require a rc-
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Chapter One
The Clean Air Act
duction of emissions from any standard which ap-
plies in the previous model year.
(C) Action revising any standard for any period
may be taken by the Administrator under subpara-
graph (B) only if he finds—
(i) that compliance with the emission stand-
ards otherwise applicable for such model year
cannot be achieved by technology, processes, op-
erating 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
(i i) t he National Academy of Sciences has not,
pursuant to its study and investigation under
subsection (c) issued a report substantially con-
trary to the findings of the Administrator under
clause (i).
(D) A report shall be made to the Congress with
respect to any standard revised under subparagrnph
(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 title I
(relating to significant deterioration) in rela-
tion to the cost-effectiveness for such purposes
of standards which, but for such revision, would
apply.
(iii) a summary of the research and develop-
ment efforts and progress being made by each
manufacturer for purposes of meeting the
standards promulgated as provided in subpara-
graph (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 revisions, would
apply.
(E)(i) The Administrator shall conduct a con-
tinuing 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 lw published
in the Federal Register and reported to the Congress
53-491 0 - 31 -
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Chapter One The Clean Air Act
108
not later than June 1, 1978, in the case of hydrocar-
bons 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 in-
formation aa available to him (including the studies
under section 214), the Administrator may, after
notice and opportunity for a public hearing, pro-
mulgate regulations under paragraph (1) of this
subsection changing any standard prescribed in sub-
paragraph (A) (ii) (or revised under subparagraph
(B) or previously changed under this subpara-
graph). No such changed standard shall apply for
any model year before the model year four years
after the model year during which regulations con-
taining such changed standard are promulgated.
(F) For purposes of this paragraph, motorcycles
and motorcycle engines shall be treated in the same
manner as heavy-duty vehicles and engines (ex-
cept as otherwise permitted under section 206(f)
(n) unless the the Administrator promulgates a
rule reclassifying motorcycles as light-duty vehicles
within the meaning of this section or unless the Ad-
ministrator promulgates regulations under subsec-
tion (a) applying standards applicable to the emis-
sion 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 be-
tween 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 stand-
ards prescribed under this subsection 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 ele-
ment of design causes, increases, reduces, or elimi-
nates 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
CAA Coopllance/Enforceaent 1-119 Guidance Manual 1986
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Chapter One The Clean Air Act
109
devices, systems, or elements of design which may be
used to conform to standards prescribed under this
subsection 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
214.
(5) (A) If the Administrator promulgates final
regulations which define the degree of control re-
quired 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 consid-
eration limits on fill pipe diameter, minimum design
criteria for nozzle retainer lips, limits on the loca-
tion 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 sub-
paragraph (A.) shall not become effective until the
introduction or 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) pre-
vent the Administrator from specifying different
nozzle and fill neck sizes for gasoline with additives
and gasoline without additives or (ii) permit the Ad-
ministrator to require a specific location, configura-
tion, modeling, or styling of the motor vehicle Dody
with respect to the fuel tank fill neck or fill nozzle
clearance envelope.
(D) For the purpose of this paragarph, the term
"fill pipe" shall include the fuel tank fill pipe, fill
neck, fill inlet, and closure.
(6) The Administrator shall determine the feasi-
bility and desirability of requiring new motor ve-
hicles to utilize onboard hydrocarbon control tech-
nolojary which would avoid the necessity of gasoline
vapor recovery of uncontrolled emissions emanating
from the fueling of motor vehicles. The Administra-
tor shall compare the costs and effectiveness of such
technology to that of implementing and maintaining
CAA CoBpllance/Bnforceoent1-120Guidance Manual 1986
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Chapter One The Clean Air Act
110
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 de-
sign and production.
(b)(l)(A) The regulations under subsection (a) ap-
plicable to emissions of carbon monoxide and hydrocar-
bons 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)
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) applicable to emissions
of hydrocarbons from light-duty vehicles and engines
manufactured during or after model year 1980 shall con-
tain 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) applicable to emissions of carbon
monoxide from light-duty vehicles and engines manu-
factured during or after the model year 1981 shall con-
tain 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) applicable
to emissions of oxides of nitrogen from light-duty ve-
hicles 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) applicable to emissions of oxides of
nitrogen from light-duty vehicles and engines manufac-
tured 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
CAA Coapliance/Enforceaent 1-121 Guidance Manual 1986
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Chapter One The Clean Air Act
111
per vehicle mile. The Administrator shall prescribe
standards in lieu of those required by the preceding sen-
tence 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 corpo-
rate 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 emis-
sion standards in the 1975 and subsequent model
years was, and is, primarily dependent upon tech-
nology developed by other manufacturers and pur-
chased from such manufacturers; and
(ii) such manufacturer lacks the financial re-
sources and technological ability to develop such
technology.
(C) 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 para-
graph (2) for measurement of evaporative emissions of
hydrocarbons shall require that such emissions be meas-
ured 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 date of
(2) Emission standards under paragraph (1), and
measurement techniques on which such standards are
based (if not promulgated prior to the date of enactment
of the Clear Air Amendments of 1970), shall be pre-
scribed by regulation within 180 days after such date.
(3) For purposes of this part—
(A) (i) The term "model year" with reference to
any specific calendar year means the manufacturers
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 re-
quired to be prescribed by subsection (b), the Ad-
ministrator may prescribe regulations defining
"model vear" otherwise than as provided in clause
(i). '
(B) The term "light duty vehicles and engines"
means new light duty motor vehicles and new light
duty motor vehicle engines, as determined under
regulations of the Administrator.
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Chapter One
The Clean Air Act
112
(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 deter-
mined under regulations promulgated by the Ad-
ministrator) 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.
(4) 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 stand-
ards 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 develop-
ment and application of such systems, and following
such hearings as he may deem advisable, any recommen-
dations for additional congressional action necessary to
achieve the purposes of this Act. In gathering informa-
tion for the purposes of this paragraph and in connection
with any hearing, the provisions of section 307(a) (relat-
ing to subpenas) shall apply.
(5) (A) At any time after August 31,1978, any manu-
facturer may file an application requesting the waiver for
model years 1981 and 1982 of the effective date of the
emission standard required by paragraph (1)(A) for
carbon monoxide applicable to any model (as determined
by the Administration) of light-duty motor vehicles and
engines manufactured in such model years. The Adminis-
trator shall make his determination with respect to any
such application within sixty days after such application
is filed with respect to such model. If he determines, in
accordance with the provisions of this paragraph, that
such waiver should be granted, he shall simultaneously
with such determination prescribe by regulation emission
standards which shall apply (in lieu of the standards
required to be prescribed by paragraph (1) (A) of this
subsection) to emissions of carbon monoxide from such
model of vehicles or engines manufactured during model
years 1981 and 1982.
(B) Any standards prescribed under this oaragraph
shall not permit emissions of carbon monoixde from ve-
hicles and engines to which such waiver applies to exceed
7.0 grams per vehicle p*r mile.
(C) Within sixty davs after receipt of the application
for any such waiver and after public hearing, the Admin-
istrator shall issue a decision granting or refusing such
waiver. The Administrator may grant such waiver if he
CAA Gonpliance/Enforceaent 1-123 Guidance Manual 1986
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Chapter One The Clean Air Act
113
finds that protection of the public health does not require
attainment of such 90 percent reduction for carbon
monoxide for the model years to which such waiver ap-
plies in the case of such vehicles and engines and if he
determines that—
(i) such waiver is essential to the public interest or
the public health and welfare of the United States:
(h) all good faith efforts have been made to meet
the standards established by this subsection;
(iii) the applicant has established that effective
control technology, processes, operating methods, or
other alternatives are not available or nave not been
available with respect to the model in Question for
a sufficient period of time to achieve compliance prior
to the effective date of such standards, taking into
consideration costs, driveability, and fuel economy;
and
(iv) studies and investigations of the National
Academy of Sciences conducted pursuant to sub-
section (c) and other information available to him
•has not indicated that technology, processes, or other
alternatives are available (within the meaning of
clause (iii)) to meet such standards.
(6) (A) Upon the petition of any manufacturer, the
Administrator, after notice and opportunity for public
hearing, may waive the standard required under sub-
paragraph (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—
(i) that such waiver would not endanger public
health, B r
(ii) 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 ex-
piration of the waiver, and
(iii) 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 Conserva-
tion Act upon the expiration of the waiver
No waiver under this subparagraph granted to any
manufacturer shall apply to more than 5 percent of such
CAA Conpllance/Knforceaent 1-124 Guidance Manual 1986
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Chapter One
The Clean Air Act
114
rii.nniif:n tmvr's production or more than fifty thousand
vehicles or engines, whichever is greater.
(B) Upon the petition of any manufacturer, the Ad-
ministrator, after notice and opportunity'for public hear-
ing, may waive the standard required under subpara-
graph (B) of paragraph (1) to not to exceed 1.5 grams
of oxides of nitrogen per vehicle mile for any class or
category of light-duty vehicles and engines manufactured
by such manufacturer during the four model year period
beginning with the model year 1981 if the manufacturer
cnn show that such waiver is necessary to permit the use
of diesel engine technology in such class or category of
vehicles or engines. Such waiver may be granted if the
Administrator determines—
(i) that such waiver will not endanger public
health,
(ii) that such waiver will result in significant fuel
savings at least equal to the fuel economy standard
applicable in each year under the Energy Policy and
Conservation Act, and
(iii) that the technology 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 Conserva-
tion Act at the expiration of the waiver.
(7) 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
pleasured from light-duty motor vehicles manufactured
in model year 1971 not subject, to any Federal or State
emission standard for oxides of nitrogen. The Adminis-
trator shall, by regulations promulgated within one hun-
dred and eighty days after enactment of the Clean Air
Act Amendments of 1977. require each manufacturer
whose sales represent at least n.S 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 objec-
tive. m addition to any other applicable standards or re-
quirement? for other pollutants under this Act. Such dem-
onstration vehicles shall be submitted to the Administra-
tor no later than model year 1970 and in each model vear
thereafter. Such demonstration shall, in accordance with
applicable regulations, to the greatest extent possible.
(A) he 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 he expected to he within the
productive capability of the manufacturers, and (C)
assure the utilization of optimum engine, fuel, and emis-
sion control systems.
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Chapter One The Clean Air Act
115
(c)(l) The Administrator shall undertake to enter
into appropriate arrangements with the National Acad-
emy 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 Act, 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 Na-
tional 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 Admin-
istrator 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 subsec-
tion. * or the purpose of furnishing such information, the
Administrator may use any authority he has under this
Act (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 ns mav be
rea/??vnS!y l***88*^ to can7 out this subsection. *
(d) The Administrator shall prescribe regulations un-
der which the useful life of vehicles and engines shall be
rtetermined for purposes of subsection (a) (1) of this soc-
re*ulntions sha» P~vide that
Cas? of J'Sht d"ty vehicles and light
nr fi , ngIT' £ a I*riod of use of fiv* venrs
or of fifty thousand miles (or the equivalent) . which-
ever first occurs;
vJ.f.L' ™h? CT4°Lf any other motor vehicle or motor
2i,Jnl.t £M (0t^ ^j"1 m^orcycles or motorcycle
mZlLhlf ^^ °f USC *' forth in Pa^'
riori of ?,^ / Admlni?t™tor determines that a
pnltef S *" Urnti0n °r mi]e&** is aPP
***?%* 2"y motorc.vcle or motorrvrle
shnll
"u .w,Power *>"«* or propulsion svs-
^T^'^^^.
may postpone certification until he
CAA Covpliance/Bnforceoeat 1-126 Guidance Manual 1986
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Chapter One The Clean Air Act
116
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 sub-
section (a).
(f)(l) The high altitude regulation in effect with re-
spect 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 affect-
ing 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 al-
titude 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 emis-
sions from motor vehicles as set forth in section 202 (b).
This percentage reduction shall be determined by com-
paring 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 established a numerical standard
which is more stringent than that applicable to vehicles
certified under non-high altitude conditions.
(3) Section 307(d) shall apply to any high altitude
regulation referred to in paragraph (2) and before pro-
mulgating any such regulation, the Administrator shall
consider and make a finding with respect to—
(A) the economic impact upon consumers, indi-
vidual high altitude dealers, and the automobile in-
dustry of any such regulation, including the eco-
nomic impact which was experienced as a result of
the regulation imposed during model year 1977 with
^fl° h'gh altltude certification requirements;
sinn,' t.he,Pre1?nt,and fl1t"re amiability of emis-
sion control technology capable of meeting the appli-
M T6 icle- and !n
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Chapter One The Clean Air Act
117
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, manu-
factured after the effective date of regulations under
this part which are applicable to such vehicle or en-
gine unless such vehicle or engine is covered by a
certificate of conformity issued (and in effect) under
regulations prescribed under this part (except as
provided in subsection (b));
(2) for any person to fail or refuse to permit
access to or copying of records or to fail to make re-
ports or provide information, required under section
208 or for any person to fail or refuse to permit
entry, testing, or inspection authorized under section
206(c);
(3) (A) for any person to remove or render inop-
erative any device or element of design installed
on or in a motor vehicle or motor vehicle engine in
compliance with regulations under this title 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 title following its sale and delivery to the ulti-
mate purchaser; or
(4) for any manufacturer of a new motor vehicle
or new motor vehicle engine subject to standards
prescribed under section 202—
(A) to sell or lease any such vehicle or engine
unless such manufacturer has complied with the
requirements of section 207 (a) and (b) with
respect to such vehicle or engine, and unless a
label or tag is affixed to such vehicle or engine
in accordance with section 207(c) (3),
(B) to fail or refuse to comply with the re-
quirements of section 207 (c) or (e),
(C) except as provided in subsection (c) (3) of
section 207. to provide directly or indirectly in any
communication to the ultimate purchaser or any
subsequent purchaser that the coverage of any war-
ranty under this Act is conditioned upon use of any
part, component, or system manufactured by such
manufacturer or any person acting for such manu-
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facturer 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 207(a) or
(b) with respect to any vehicle.
No action with respect to .any element of design re-
ferred to in paragraph (3) (including any adjustment or
alteration of such element) shall be treated as a prohib-
ited Act under such paragraph (3) if such action is in
accordance with section 215. 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 re-
spect to a motor vehicle engine, parts produced or sold
by the manufacturer of the motor vehicle or motor
vehicle engine.
(b) (1) The Administrator may exempt any new motor
vehicle or new motor vehicle engine from subsection (a),
upon such terms and conditions as he may find necessary
for the purpose of research, investigations, studies, dem-
onstrations, 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) 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 au-
thorizing 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 con-
formity 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 re-
fused admission under this paragraph, cause disposition
thereof in accordance with the customs laws unless it is
exported, under regulations prescribed by such Secre-
tary, within ninety days of the date of notice of such
refusal or such additional time as may be permitted pur-
suant to such regulations, except that disposition in ac-
cordance 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.
^_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 it-
self, shall be subject to the provisions of subsection (a),
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except that if the country which is to receive such vehicle
or engine has emission standards which differ from the
standards prescribed under section 202, then such vehicle
or engine shall comply with the standards of such coun-
try which is to receive such vehicle or engine.
(c) Upon application therefor, the Administrator may
exempt from section 203(a)(3) any vehicles (or class
thereof) manufactured before the 1974 model year from
section 203(a) (3)« for the purpose of permitting modi-
fications to the emission control device or system of such
vehicle in order to use fuels other than those specified in
certification testing under section 206(a)(l), if the Ad-
ministrator, on the basis of information submitted by the
applicant, finds that such modification will not result in
such vehicle or engine not complying with standards un-
der section 202 applicable to snch vehicle or engine. Any
such exemption shall identify (1) the vehicle or vehicles
so exempted, (2) the specific nature of the modification,
and (3) the person or class of persons to whom the exemp-
tion shall apply.
INJUNCTION PROCEEDINGS
SEC. 204. (a) The district courts of the United States
shall have jurisdiction to restrain violations of section
203 (a).
(b) 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.
PENALTIES
SEC. 205. Any person who violates paragraph (1), (2),
or (4) of section 203(a) or any manufacturer, dealer, or
other person who violates paragraph (3) (A) of section
£?« \& . ' •" sabiect to » civil penalty of not more than
$10,000. Any person who violates paragraph (3)(B) of
such section 203(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 203(a) shall con-
stitute a separate offense with respect to each motor
vehicle or motor vehicle engine.
MOTOR VEHICLE AND MOTOR VEHICLE ENGINE COMPLIANCE
TESTING AND CERTIFICATION
SEC. 206. (a)(l) The Administrator shall test, or re-
quire to be tested in such manner as he deems appro-
priate, any new motor vehicle or new motor vehicle
engine submitted by a manufacturer to detennine
whether such vehicle or engine conforms with the regula-
"etlo° 20*<«) " «« apparently rednndiot In ttaU
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tions prescribed under section 202 of this Act. If such
vehicle or engine conforms to such regulations, the Ad-
ministrator 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 manufac-
turer 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 202 for the
useful life of the vehicle or engine shall not require opera-
tion 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 Adminis-
trator 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 202(d)) with the regulations prescribed under
section 202 of this Act.
(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 deter-
mine whether such system enables such vehicle or engine
to conform to the standards required to be prescribed
under section 202 (b) of this Act. 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 stand-
ards 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. Testa under this paragraph shall be conducted
under such terms and conditions (including require-
ments 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 con-
trol device, system, or element of design installed on, or
incorporated in. such vehicle or engine conforms to
applicable requirements of section 202(a)(4).
(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 suboaragraph (A) of this para-
graph. Such requirements shall include a requirement for
prompt reporting of the emission of any unregulated pol-
lutnnt from a system, device, or element of design if such
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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.
(b) (1) In order to determine whether new motor ve-
hicles or new motor vehicle engines being manufactured
by a manufacturer do in fact conform with the regula-
tions 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 para-
graph (1) on a sample of new vehicles or engines covered
by a certificate of conformity, the Administrator deter-
mines 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 re-
quirements of section 202(a) (4), he may suspend or re-
voke 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 con-
form to such regulations and requirements. If, during
any period of suspension or revocation, the Adminis-
trator finds that a vehicle or engine actually conforms to
such regulations and requirements, he shall issue a certifi-
cate 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 deter-
mines that such vehicle or engine does not conform with
such regulations, he may suspend or revoke such certifi-
cate 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 he shall so notify
the manufacturer.
(B)(i) At the request of any manufacturer the Ad-
ministrator 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 sus-
pension or revocation under subparagraph (A); but sus-
pension 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 manufac-
turer 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 man-
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Chapter One The Clean Air Act
122
ufacturer 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 pro-
vided in section 2112 of title 28 of the United States
Code.
(iii) If the petitioner applies to the court for leave to
adduce additional evidence, and shows to the satisfac-
tion of the court that such additional evidence is mate-
rial and that there were reasonable grounds for the fail-
ure 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 evi-
dence so taken and he shall file such modified or new find-
ings, and his recommendation, if any, for the modifi-
cation 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, United
States Code, and to grant appropriate relief as provided
in such chapter.
(c) For purposes of enforcement of this section, of-
ficers or employees duly designated by the Administrator,
upon presenting appropriate credentials to the manu-
facturer or person in charge, are authorized (1) to enter,
at reasonable times, any plant or other establishment of
such manufacturers, for the purpose of conducting tests
of vehicles of engines in the hands of the manufacturer,
or (2) to inspect at reasonable times, records, files, papers,
processes, controls, and facilities used by such manufac-
turer in conducting tests under regulations of the Ad-
ministrator. Each such inspection shall be commenced
and completed with reasonable promptness.
(d) The Administrator shall by regulation establish
methods and procedures for making tests under this
section.
(e) The Administrator shall announce in the Federal
Register and 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) as
promptly as possible after the enactment of the Clean
Air Amendments of 1970 and at the beginning of each
model year which begins thereafter. Such results shall
be described in such nontechnical manner as will reason-
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Chapter One
The Clean Air Act
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ably disclose to prospective ultimate purchasers of new
motor vehicles and new motor vehicle engines the com-
parative performance of the vehicles and engines tested
in meeting the standards prescribed under section 202
of this Act.
(f)(l) All light duty vehicles and engines manufac-
tured during or after model year 1984 shall comply with
the requirements of section 202 of this Act regardless of
the altitude at which they are sold.
(2)I By October 1,1978, the Administrator shall report
to the Congress on the economic impact and technological
feasibility of the requirements found in subparagraph
(1) of this subsection. The report is also to evaluate the
technological feasibility and the health consequences of
separate proportional emission standards for light duty
vehicles and engines in high altitude areas that would
reflect a comparable percentage of reduction in emissions
to that achieved by light duty vehicles and engines in low
altitude areas.
(g) (1) In the case of any class or category of heavy-
duty vehicles or engines to which a standard promulgated
under section 202(a) of this Act applies, except as pro-
vided in paragraph (2), a certificate of conformity snail
be issued under subsection (a) and shall not be suspended
or revoked under subsection (b) for such vehicles or en-
gines manufactured by a manufacturer notwithstanding
the failure of such vehicles or engines to meet such stand-
ard if such manufacturer pays a nonconformance penalty
as provided under regulations promulgated by the Ad-
ministrator after notice and opportunity for public hear-
ing. 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
202(a) 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 vehicle or engines being pro-
duced 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 snail be
promulgated not later than one year after the date of
enactment of the Clean Air Act Amendments of 1977.
(3) The regulations promulgated under paragraph (1)
shall, not later than one year after the date of enactment
of the Clean Air Act Amendments of 1977, provide for
nonconformance penalties in amounts determined under
a formula established by the Administrator. Such pen-
alties under such formula—
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Chapter One The Clean Air Act
124
(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 allow-
able emissions under the standards promulgated un-
der section 202;
(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
(£) 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 207(b) (2) and any action under section
207(c) shall be required to be effective only for the emis-
sion levels which the Administrator determines that such
certificate waa issued and not for the emission levels re-
quired under the applicable standard.
(5) The authorities of section 208(a) shall apply, sub-
ject to the conditions of section 208 (b), for purposes of
this subsection.
COMPLIANCE BT VEHICLES AND ENGINES IN ACTUAL. USfc
SEC. 207. (a) (1) Effective with respect to vehicles and
engines manufactured in model years beginning more
than 60 days after the date of the enactment of the Clean
Air Amendments of 1970, the manufacturer of each new
motor vehicle and new motor vehicle engine shall war-
rant to the ultimate purchaser and each subsequent pur-
chaser 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 202, 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 sec.
202 (d)).
(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 202. Such certifica-
tion shall be made only under such regulations as may
be promulgated by the Administrator to carry out the
purposes of subsection (b). The Administrator shall
promulgate such regulations no later than two years fol-
lowing the date of the enactment of this paragraph.
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Chapter One The Clean Air Act
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pursuant
tion (c) (3) of this section is scheduled for replacement
during the useful life of the vehicle in order to maintain
compliance with reflations under section 202 of this Act,
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 pro-
vided without cost to the ultimate purchaser, subsequent
purchaser, or dealer. The term "designed for emission con-
trol" 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 re-
ducing 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) 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 202(d)), each vehicle and
engine to which regulations under section 202 apply com-
plies with the emission standards of such regulations, (ii)
such methods and procedures are in accordance with good
engineering practices, and (iii) such methods and proce-
dures are reasonably capable of being correlated with
tests conducted under section 206(a) (1), 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 es-
tablished 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 202 applies and
which is manufactured in a model year Beginning
after the Administrator first prescribes warranty
regulations under this paragraph. The warranty
under such regulations shall run to the ultimate pur-
chaser and each subsequent purchaser and shall pro-
vide that if—
(A) the vehicle or engine is maintained and
operated in accordance with instructions under
subsection (c)(3),
(B) it fails to conform at any time during
its useful life (as determined under section
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Chapter One The Clean Air Act
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202(d)) to the regulations prescribed under sec-
tion 202, and
(C) such nonconformity results in the ulti-
mate 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 remedv such noncon-
formity 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). For purposes of the warranty under this
subsection, for the period after twenty-four months
or twenty-four thousand miles (whichever first oc-
curs) 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
terms shall not include those vehicle components
which were in general use prior to model venr 1968.
(c) Effective with respect to vehicles and engines man-
ufactured during model years beginning more than 60
days after the date of enactment of the Clean Air Amend-
ments of 1970—
(1) If the Administrator determines that a sub-
stantial number of any class or category of vehicles
or engines, although properly maintained and used.
do not conform to the regulations prescribed under
section 202, when in actual use throughout their use-
ful life (as determined under section 202(d)>, 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 snail
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 determina-
tion of nonconformity and so advises the Adminis-
trator, the Administrator shall afford the manufac-
turer and other interested persons an opportunity
to present their views and evidence in support there-
of at a public hearing. Unless, as a resu't of such
hearing the Administrator withdraws such deter-
mination of nonconformity, he shall, within 60 days
after the completion of such hearinar, order the man-
ufacturer to provide prompt notification of such
nonconformity in accordance with paragraph (2).
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Chapter One The Clean Mr Act
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(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 man-
ner and containing such information as the Admin-
istrator may be regulations require.
(3) (A) The manufacturer shall furnish with each new
motor vehicle or motor vehicle engine written instruc-
tions 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 re-
pair 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).
(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 compo-
nent 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 dis-
tinguishing between service performed by the franchised
dealers of such manufacturer or any other service estab-
lishments with which such manufacturer has a commer-
cial relationship, and service performed by independent
automotive repair facilities with which such manufac-
turer has no commercial relationship; except that the pro-
hibition of this subsection may be waived by the Ad-
ministrator 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
(n) 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 assur-
ing achievement of emissions standards prescribed undor
section 202 of this Act Such label or tag shall contain
such other information relating to control of motor ve-
'*510"8 ** *** Administrator "*»H prescribe by
(<• ) Any cost obligation of any dealer incurred as a
result of any requirement imposed by subsection fa),
fr«,«c*r * ' J* borne bv the manufacturer. The
transfer of any such cost obligation from a manufacturer
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Chapter One The Clean Air Act
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to any dealer through franchise or other agreement is
prohibited.
(e) If a manufacturer includes in any advertisement
a statement respecting the cost or value of emission con-
trol devices or systems, such manufacturer shall set forth
in such statement the cost or value attributed to such de-
vices 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 311.
(f) Any inspection of a motor vejhicle or a motor ve-
hicle engine for purposes of subsection (c) (1), 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) 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 three sentences of section 207 (a) (1), un-
less such part, item, or device is covered by any warranty
not mandated by this Act.
(h)(l) Upon the sale of each new light-duty motor
vehicle by a dealer, the dealer shall furnish to the pur-
chaser a certificate that such motor vehicle conforms to
the applicable regulations under section 202, 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), a motor vehicle
fails to conform to the applicable regulations under sec-
tion 202 as determined under subsection (b) of this sec-
tion such nonconformity shall he remedied by the manu-
facturer at the cost of the manufacturer pursuant to such
warranty as provided in section 207(b) (2) (without re-
gard tosubparagraph (C) thereof).
(3) Nothing in section 209(a) 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 test-
ing under this paragraph).
RECORDS AND REPORTS
Ser. 208. (a) Every manufacturer shall establish and
maintain such records, make such reports, and provide
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such information as the Administrator may reasonably
require to enable him to determine whether such manu-
facturer has acted or is acting in compliance with this
part and regulations thereunder and shall, upon request
of an officer or employee duly designated by the Admin-
istrator, permit such officer or employee at reasonable
times to have access to and copy such records.
(b) Any records, reports or information obtained un-
der subsection (a) shall be available to the public, except.
that upon a showing satisfactory to the Administrator
by any person that records, reports, or information, or
particular part 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 such person, the Admin-
istrator shall consider such record, report, or information
or particular portion thereof confidential in accordance
with the purposes of section 1905 of title 18 of the United
States Code, except that such record, report, or informa-
tion may be disclosed to other officers, employees, or
authorized representatives of the United States con-
cerned with carrying out this Act or when relevant in
any proceeding under this Act. Nothing in this section
shall authorize the withholding of information by the
Administrator or any officer or employee under his con-
trol from the duly authorized committees of the Congress.
STATE STANDARDS
SEC. 209. (a) No State or any political subdivision
thereof shall adopt or attempt to enforce any standard
relating to the control of emissions from new motor ve-
hicles 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 ve-
hicle engine, or equipment.
(b)(l) The Administrator shall, after notice and op-
portunity 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 istate standards will l>e. in thr aggregate, at
Ieast as protective of public health and welfare as applic-
able federal standards. Xo such waiver shall be granted
if the Administrator finds that—
(A) the determination of the Stnte is arbitrary
and capricious,
(B) such State does not need such State standards
to meet compelling and extraordinary conditions.
or
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Chapter One The Clean Air Act
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(C) snrh State stamlarrl* nn«l •. •••ii|>nnyin£ en-
forcement procedures niv mil consistent with sec-
tion 202(a) of this part.
(2) If each State standard is at least us 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 pur-
poses 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
title.
(c) Whenever a regulation with respect to any motor
vehicle part or motor vehicle engine part is in elfect un-
der section 207(a)(2). no State or political subdivision
thereof shall adopt or attempt to enforce any standard
or any requirement of certification, inspection, or ap-
proval 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 re-
spect to which a waiver is in effect under subsection (b.).
(d) Nothing in this part shall preclude or deny to any
State or political subdivision thereof the right other-
wise to control, regulate, or restrict the use, operation, or
movement of registered or licensed motor vehicles.
STATE ORANTS
SEC. 210. 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 Secre-
tary of Transportation has certified to the Adminis-
trator that such program is consistent with any
highway safety program developed pursuant to sec-
tion 402 of title 23 of the United States Code; and
(3) no such grant shall be made unless the pro-
gram 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 hy the State before the
date on which any such grant was made.
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Chapter One The Clean Air Act
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REGULATION OF FUELS
SEC. 211. (a) The Administrator may by regulation
designate any fuel or fuel additive 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 addi-
tive unless the Administrator has registered such fuel
or additive in accordance with subsection (b) of this
section.
(b)(l) 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 manu-
facturer 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 addi-
tive.
(2) For the purpose of registration of fuels and fuel
additives, the Administrator may also require the manu-
facturer of any fuel or fuel additive—
(A) to conduct tests to determine potential pub-
lic health effects of such fuel or additive (including,
but not limited to, carcinogenic, teratogenic, or
mutagenic effects-), and
(Bj 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 recom-
mended 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 or vehicle engine, 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 estab-
lished by the Administrator. The results of such tests
shall not be considered confidential.
(3) Upon compliance with the provisions of this sub-
section, including assurances that the Administrator will
receive changes in the information required, the Admin-
istrator shall register such fuel or fuel additive.
(c) (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, intro-
duction into commerce, offering for sale, or sale of any
CAA Covpllance/Enforceaent1-142
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Chapter One The Clean Air Act
132
fuel or fuel additive for use in n motor vehicle or motor
vehicle engine (A) if in the iudgment of the Administra-
tor any emission product of such fuel or fuel additive
causes, or contributes, to air pollution which may reason-
ably be anticipated to endancrer the public health or wel-
fare, or (B) if emission products of such fuel or fuel ad-
ditive will impair to a significant degree the perform-
ance 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 pur-
suant to clause (A) of paragraph (1) except after con-
cideration of all relevant medical and scientific evidence
available to him, including consideration of other tech-
nologically or economically feasible means of achieving
emission standards under section 202.
(B) No fuel or fuel additive may be controlled or pro-
hibited bv 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 pro-
posed 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 prohibi-
tion will not cause the use of any other fuel or fuel addi-
tive 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
remiire 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 con-
trol devjce or system.
/ A^B) T?- obt^j"in« information under subparagraph
(A) section 307 (a) (relating to subpenas) shall be
applicable. '
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Chapter One
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(4) (A) Except as otherwise provided in subpara-
graph (B) or (
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Chapter One The Clean Air Act
134
(2) Regulations under subsection (l>) to carry out this
subsection shall require that the requisite information
be provided to the Administrator bv each such
manufacturer —
(A) prior to registration. in tho 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 Adminis-
trator may —
(A) exempt any small business (as defined in such
regulations) from or defer or modify the require-
ments of. such regulations with respect to anv such
smaH business:
(B) provide for cost-sharinjr with respect to the
testing of any fuel or fuel additive which is manu-
factured 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 ade-
quate existing testing.
(f)(l) Effective upon March 31. 1977. it shall be un-
awful for any manufacturer of any fuel or fuel additive
to hrst introduce into commerce, or to increase the con-
centration in use of. any fuel or fuel additive for ^neral
use in light duty motor vehicles manufactured after
model year 1974 which is not substantially similar to any
,™2 T fuol"idlhve "t«l«ed in the certification of anv
model year 1975. or subsequent model year, vehicle or en-
gine under section 206.
(2nL?£eCH7 ?ovemlrr ™- 107?- it shall he unlawful
any manufacturer of any fuel to introduce into oom-
°°nfnins " ™"<-ntrat?on of
'" "
A"V "lnn"fn<1»»">i- «f any fuel or fuel ndrlitivo
introH1" f°^n7h -11' 107" aml "ftor Jnn»»'-v
first introduced mto commerce or increased the
'hn^n " V^ l""1 *?«Wr* Minf WO»
been prohibited u - if i
CAA Conpllance/Enforcement 1-145 Guidance Manual 1986
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Chapter One The Clean Air Act
135
and before September 15, 1978, the Administrator slinll
prohibit, or restrict the concentration of any fuel addi-
tive 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 206.
(4) The Administrator, upon application of any manu-
facturer of any fuel or fuel additive, may waive the pro-
hibitions 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 con-
trol device or system (over the useful life of any vehicle
in which such device or system is used) to achieve com-
pliance by the vehicle with the emission standards with
respect to which it has been certified pursuant to section
208. 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) i No action of the Administrator under this section
may be stayed by any court pending judicial review of
such action.
(g) ( 1 ) For the purposes of this subsection :
(A) The terms "gasoline" and "refinery" have
the meaning provided under regulations of the Ad-
rmnis?IStor Prorou'gated under this section.
(B) The term "small refinery" means a refinery or
a portion of refinery producing gasoline—
(i) the gasoline producing capacity of which
was in operation or under construction at any
time during the one-year period immediately
preceding October 1 , 1976, and
(in which has a crude oil or bona fide feed
stock capacity (as determined by the Admin-
.strator) of 50,000 barrels per day or less, ami
(in) which is owned or controlled bv a re-
firEVJ »a J°tAl cofTlbined <™de oil or bona
4HmiSl ?ckxca?acity (as deter"»ned bv the
Administrator) of 137,500 barrels per day or
secdonr °f the Administ™tor under this
SH? (or\anT amendment or revision thereof) respect-
ing the control or prohibition of load additives in'Sso-
eS LreqUirekR Sma11 refin<"7 P"or to Sc obfr 1
reduce the average lead content per gallon of
CAA Covpliance/Bnforceaene 1-146 Guidance Manual 1986
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Chapter One The Clean Air Act
136
gasoline refined at such refinery below the applicable
amount specified in the table below:
If the average gasoline production of the small refinery for the
Immediately preceding calendar year (or. in the case of refiner-
ies under construction, half the designed crude oil capacity)
was (In barrels per day):
The applicable
amount (in gnmi
per gal
5.000 or under 2. 65.
5.001 to 10,000-
10.001 to 10,000.
15.001 to 20.000.
20.001 to 25.000.
23,001 or over..
2.15.
1.65.
1.30.
.80.
As prescribed
by the Ad-
ministra-
tor, but not
greater
than 0.80.
The Administrator may promulgate such regulations as
he deems appropriate with respect to the reduction of
the average lead content of gasoline refined by small
refineries on and after October 1, 1982, taking into ac-
count the experience under the preceding provisions of
this paragraph.
(3) Effective on the date of the enactment of this sub-
section, the regulations of the Administrator under this
section respecting fuel additives (40 CFR part 80) shall
be deemed amended to comply with the requirement con-
tained in paragraph (2).
(4) Nothing in this section shall be construed to pre-
empt the right of any State to take action as permitted by
section 21 l(c) (4) of this Act. y
DEVELOPMENT OF LOW-EMISSION VEHICLES
SEC. 212. (a) For the purpose of this section—
TT (1.\T!ie term "fioard" means the Low-Emission
Vehicle Certification Board.
(2) The term "Federal Government" includes the
legislative, executive, and judicial branches of the
trovernment of the United States, and the govern-
ment of the District of Columbia.
(3) The term "motor vehicle" means nnv self-
propelled vehicle designed for use in the United
btntes on the highways, other than a vehicle designed
or used for military field training, combat, or tactical
purposes.
(4) The term "low-omission vehicle" means any
motor vehicle which—
(A) emits any air pollutant in amounts sig-
nificantly below new motor vehicle standards
applicable under section 202 at the time of pro-
curement to that type of vehicle; and
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Chapter One
The Clean Air Act
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(B) with respect to all other air pollutants
meets the new motor vehicle standards appli-
cable under section 202 at the time of procure-
ment to that type of vehicle.
(5) The term "retail price" means (A) the maxi-
mum statutory price applicable to any class or model
of motor vehicle; or (B) in any case where there is no
applicable maximum statutory price, the most recent
procurement price paid for any class or model of
motor vehicle.
(b)(l) There is established a Low-Emission Vehicle
Certification Board to be composed of the Administrator
or his designee, the Secretary of Transportation or his
designee, the Chairman of the Council on Enivormnental
Quality or his designee, the Director of the National
Highway Safety Bureau in the Department of Trans-
portation, the Administrator of General Services, and
two members appointed by the President. The President
shall designate one member of the Board as Chairman.
(2) Any member of the Board not employed by the
United States may receive compensation at the rate of
$125 for each day such member is engaged upon work of
the Board. Each member of the Board shall be reimbursed
for travel expenses, including per diem in lieu of subsist-
ence as authorized by section 5703 of title 5, United
States Code, for persons in the Government service em-
ployed intermittently.
(3) (A) The Chairman, with the concurrence of the
members of the Board, may employ and fix the compen-
sation of such additional personnel as may be necessary
to carry out the functions of the Board, but no individual
so appointed shall receive compensation in excess of the
rate authorized for GS-18 by section 5332 of title 5,
United States Code,
(B) The Chairman may fix the time and place of such
meetings as may be required, but a meeting of the Board
shall be called whenever a majority of its members so
requests.
(C) The Board is granted all other powers necessary
for meeting its responsibilities under this section.
(c) The Administrator shall determine which models
or classes of motor vehicles qualify as low-emission vehi-
cles in accordance with the provisions of this section.
(d) (1) The Board shall certify any class or model of
motor vehicles—
(A) for which a certification application has been
filed in accordance with paragraph (3) of this sub-
section ;
(B) which is a low-emission vehicle as determined
by the Administrator; and
(C) which it determines is suitable for use as a
substitute for a class or model of vehicles at that time
in use by agencies of the Federal Government.
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Chapter One The Clean Air Act
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The Board shall specify with particularity the class or
model of vehicles for which the class or model of vehicles
described in the application is a suitable substitute. In
milking the determination under this subsection the Board
shall consider the following criteria :
(i) the safety of the vehicle:
(ii) its performance characteristics:
(iii) its reliability potential:
(iv) ;ts serviceability:
(v) its fuel availability;
(vi) its noise level: and
(vii) its maintenance costs as compared with the
class or model of motor vehicle for which it may be
a suitable substitute.
(2) Certification under this section shall be effective
for a period of one year from the date of issuance.
(3) (A) Any party seeking to have a class or model of
vehicle certified under this section shall file a certifica-
tion application in accordance with regulations pre-
scribed by the Board.
(B) The Board shall publish a notice of each applica-
tion received in the Federal Register.
(C) The Administrator ana the Board shall make de-
terminations for the purpose of thia section in accord-
ance with procedures prescribed by regulation by the
Administrator and the Board, respectively.
(D) The Administrator and the Board shall conduct
whatever investigation is necessary, including actual in-
spection of the vehicle at a place designated in regula-
tions presml»ed under subparograph (A).
(E) The Board shall receive and evaluate written
comments and documents from interested parties in sup-
port of, or in opposition to. certification of the class or
model of vehicle under consideration.
(F) Within ninety days after the receipt of a properly
filed certification application, the Administrator shall de-
termine whether such class or model of vehicles is a low-
emission vehicle, and within ISO days of such determina-
tion, the Board shall roach a decision by majority vote as
to whether such class or model of vehicle, having been
determined to be a low-emission vehicle, is a suitable sub-
stitute for any class or classes of vehicles presently being
purchased by the Federal Goveni.-nent for use by its
agencies.
(G) Immediately upon making any determination or
decision under subparagraph (F).tho Administrator and
the Hoard shall each publish in the Federal Register no-
tice of such determination or decision, including reasons
therefor and in the case of the Board any dissenting
views.
(e)(l) Certified low-emission vehicles shall be ac-
quired by purchase or lease by the Federal Government
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Chapter One The Clean Air Act
139
for use by the Federal Government in lieu of other vehi-
cles if the Administrator of General Services determines
that such certified vehicles have procurement costs which
are no more than 150 per centum of the retail price of the
least expensive class or model of motor vehicle for which
they are certified substitutes.
(2) In order to encourage development of inherently
low-polluting propulsion technology, the Board may, at
its discretion, raise the premium set forth in paragraph
(1) of this subsection to 200 per centum of the retail
price of any class or model of motor vehicle for which a
certified low-emission vehicle is a certified substitute, if
the Board determines that the certified low-emission
vehicle is powered by an inherently low-polluting pro-
pulsion system.
(3) Data relied upon by the Board and the Adminis-
trator in determining that a vehicle is a certified low-
emission vehicle shall be incorporated in any contract for
the procurement of such vehicle.
(i) The procuring agency shall be required to pur-
chase available certified low-emission vehicles which are
eligible for purchase to the extent they are available be-
fore purchasing any other vehicles for which any low-
emission vehicle is a certified substitute. In making pur-
chasing selections between competing eligible certified
low-emission vehicles, the procuring agency shall give
priority to (1) any class or model which does not require
extensive periodic maintenance to retain its low-pollut-
ing qualities or which does not require the use of fuels
which are more expensive than those of the classes or
models of vehicles for which it is a certified substitute;
and (2) passenger vehicles other than buses.
(g) For the purpose of procuring certified low-emis-
sion vehicles any statutory price limitations shall be
waived.
(h) The Administrator shall, from time to time as the
Board deems appropriate, test the emissions from certi-
fied low-emission vehicles purchased by the Federal Gov-
ernment. If at any time he finds that the emission rates
exceed the rates on which certification under this section
was based, the Administrator shall notify the Board.
Thereupon the Board shall give the supplier of such
vehicles written notice of this finding, issue public notice
of it, and give the supplier an opportunity to make nec-
cessary repairs, adjustment, or replacements. If no such
repairs, adjustments, or replacements are made within a
period to be set by the Board, the Board may order the
supplier to show cause why the vehicle involved should
be eligible for recertification.
(i) There are authorized to be appropriated for pay-
ing additional amounts ^or motor vehicles pursuant to,
and for carrying out the provisions of, this section, $5,-
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Chapter One The Clean Air Act
140
Otm.oon far the fiscal year ending June 30. 1971, and
$20,000,000 for each of the two succeeding fiscal years.
(j) The Board shall promulgate the procedures re-
quired to implement this section within one hundred and
eighty days after the date of enactment of the Clean Air
Amendments of 1970.
FUEL ECONOMY IMPROVEMENT FROM NEW MOTOR VEHICLES
SEC. 213. (a) (1) The Administrator and the Secretary
of Transportation shall conduct a joint study, and shall
report to the Committee on Interstate and Foreign Com-
merce of the United States House of Representatives and
the Committees on Public Works and Commerce of the
United States Senate within one hundred and twenty
days following the date of enactment of this section, con-
cerning the practicability of establishing a fuel economy
improvement standard of 20 per centum for new motor
vehicles manufactured during and after model year 1980.
Such study and report shall include, but not be limited to,
the technological problems of meeting any such standard,
including the leadtime involved; the 'test procedures
required to determine compliance; the economic costs
associated with such standard, including any beneficial
economic impact; the various means of enforcing such
standard; the effect on consumption of natural resources,
including energy consumed; and the impact of applicable
safety and emission standards. In the course of per-
forming such study, the Administrator and the Secretary
of Transportation shall utilize the research previously
performed in the Department of Transportation, and the
Administrator and the Secretary shall consult with the
Federal Energy Administrator, the Chairman of the
Council on Environmental Quality, and the Secretary of
the Treasury. The Office of Management and Budget may
review such report before its submission to such com-
mittees of the Congress, but such Office may not revise
the report or delay its submission beyond the date pre-
scribed for its submission, and may submit to Congress
its comments respecting such reporit. In connection, with
such study, the Administrator may utilize the authority
provided infection 307(a) of this Act to obtain necessary
information.
(2) For the purpose of this section, the term "fuel
economy improvement standard" means a requirement of
a percentage increase in the number of miles of transpor-
tation provided by a manufacturer's entire annual pro-
duction of new motor vehicles per unit of fuel consumed,
as determined for each manufacturer in accordance with
test procedures established by the Administrator pur-
suant to this Act. Such term shall not include any
requirement for any design standard or any other
requirement specifying or otherwise limiting the manu-
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Chapter One The Clean Air ACL
141
facturer's discretion in deciding how to comply with the
fuel economy improvement standard by any lawful
means.
STUDY or pAtmcruvTB EMISSIONS FROM MOTOR VEHICLES
SBC. 214. (&)(!) The Administrator shall conduct a
study concerning the effects on health and welfare of par-
ticulate emissions from motor vehicles or motor vehicle
engines to which section 202 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 par-
ticulate emissions from mobile sources which are not re-
lated to engine emissions (including, but not limited to
tire debris, and asbestos from brake lining).
(b) The Administrator shall report to the Congress
the findings and results of the study conducted under sub-
section (a) not later than two years after the date of the
enactment of the Clean Air Act Amendments of 1977.
Such report shall also include recommendations for
standards or methods to regulate particulate emissions
described in paragraph (2) of subsection (a).
HIGH ALTITUDE PERFORMANCE ADJUSTMENTS
SEC. 215. (a) (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 title (including any alteration or adjustment
of such element), shall be treated as not in violation of
section 203(a) if such action is performed in accordance
with high altitude adjustment instructions provided by
the manufacturer under subsection (b) and approved by
the Administrator.
(2) If the Administrator finds that adjustments or
modifications made pursuant to instructions of the manu-
facturer under paragraph (1) will not insure emission
control performance witn respect to each standard under
section 202 at least equivalent to that which would result
if no such adjustments or modifications were made, he
shall disapprove such instructions. Such findings shall be
based upon minimum engineering evaluations consistent
with good engineering practice.
(b) (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 perform-
ance at different altitudes shall be submitted by the manu-
facturer to the Administrator pursuant to regulations
promulgated by the Administrator.
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Chapter One The Clean Air Act
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(2) Any knowing violation by a manufacturer of re-
quirements of tho Administrator under paragraph (1)
shull l>e treated as a violation by such manufacturer of
section 203(n) (3) for purposes of tbc penalties contained
in section 205.
(3) Such instruction shall provide, in addition toother
adjustments, for adjustments for vehicles moving from
high altitude areas to low altitude areas after the initial
registration of such vehicles.
(c) No instructions under this section respecting ad-
justments or modifications may require the use of any
manufacturer parts (as defined in section 203(a)) 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) 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 the date of the en-
actment of this Act) but after December 31.1980. such au-
thority shall lie 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.
DEFINITIONS FOR PART A
SEC. 216. As used in this part—
(1) The term "manufacturer" as used in sections
202. 203,206,207, and 208 means any person engaged
in the manufacturing or assembling of new motor
vehicles or new motor vehicle engines, or importing
such vehicles or engines for resale, or who acts for
and is under the control of any such person in con-
nection with the distribution o'f new motor vehicles
or new motor vehicle engines, but shall not include
any dealer with respect to new motor vehicles or new
motor vehicle engines received by him in commerce.
ii i Th,e.tenn "motor vehicle" means any self-pro-
pelled vehicle designed for transporting persons or
property on a street or highway.
(3) Except, with respect to vehicles or engines im-
ported or offered for importation, the term "new
motor vehicle1' means a motor vehicle the equitable or
legal title to which has never been transform! to an
ultimate purchaser; and the term "now motor vohicle
engine" means an ongine in a now motor vehicle or a
motor vehicle engine the oquitalilo or legal title to
which has never boon transferred to the ultimate pur-
chaser : and with respect to imported vehicles or
onpinos. such terms moan a motor vehicle and ongine.
respectively, manufactured after the effective date of
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a regulation issued under section 202 which is appli-
cable to such vehicle or engine (or which would be
applicable to such vehicle or engine had it been man-
ufactured 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 ve-
hicle engine, the first person who in good faith pur-
chases such new motor vehicle or new engine for
purposes other than resale.
(6) The term "commerce" means (A) commence
between any place in any State and any place out-
side thereof; and (B) commerce wholly within the
District of Columbia.
PABT B—AIRCRAJT EMISSION STANDABM
ESTABLISHMENT OF 8TA1TDABM
SEC. 231 (a) (1) Within 90 days after the date of en-
actment of the Clean Air Amendments of 1970, the Ad-
ministrator 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 pro-
posed regulations, he shall issue such regulation with such
modifications as he deems appropriate. Such regulations
may be revised from time to time.
(b) 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 de-
velopment and application of the requisite technology,
giving appropriate consideration to the cost of compli-
ance within such period.
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(c) Any regulations in effect under this section on date
of enactment of the Clean Air Act Amendments of 1077
or proposed or promulgated thereafter, or amendments
thereto, with respect to aircraft shall not apply if disap-
proved 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 findinc shall in-
clude a reasonably specific statement of the basis upon
which the finding was made.
ENFORCEMENT OF STANDARDS
SEC. 232. (a) The Secretary of Transportation, after
consultation with the Administrator, shall prescribe reg-
ulations to insure compliance with all standards pre-
scribed under section 231 by the Administrator. The
regulations of the Secretary of Transportation shall in-
clude provisions making such standards applicable in
the issuance, amendment, modification, suspension, or
revocation of any certificate authorized by the Federal
Aviation Act or the Department of Transportation Act.
Such Secretary shall insure that all necessary inspections
are accomplished, and. may execute any power or duty
vested in him by any other provision of law in the execu-
tion of all powers and duties vested in him under this
section.
(b) In any action to amend, modify, suspend, or re-
voke a certificate in which violation of an emission stand-
ard prescribed under section 231 or of a regulation pre-
scribed under subsection (a) 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 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 con-
sistent with safety in air transportation.
STATE STANDARDS AND CONTROLS
SF.C. 233. No State or political subdivision thereof may
ndppt or attempt to enforce any standard respecting
emissions of any air pollutant from any aircraft, or en-
gine thereof unless such standard is identical to a stand-
ard applicable to such aircraft under this part.
DEFINITIONS
SEC. 234. Terms used in this part (other than Adminis-
trator) shall have the same meaning as such terms have
under section 101 of the Federal Aviation Act of 1958.
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TITLE III—GENERAL
ADMINISTRATION
SEC. 301. (a)(l) The Administrator is authorized to
Erescribe such regulations as are necessary to carry out
is functions under this Act. The Administrator may
delegate to any officer or employee of the Environmental
Protection Agency such of his powers and duties under
this Act, except the making of regulations, as he may
deem necessary or expedient.
(2) Not later than one year after the date of enactment
of this paragraph, the Administrator shall promulgate
regulations establishing general applicable procedures
and policies for regional officers and employees (includ-
ing 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
Act;
(B) to assure at least an adequate quality audit of
each State's performance and adherence to the re-
quirements or this Act in implementing and enforc-
ing the Act, particularly in the review of new
sources and in enforcement of the Act; and
(C) to provide a mechanism for identifying and
standardizing inconsistent or varying criteria, pro-
cedures, and policies being employed by such officers
and employees in implementing and enforcing the
Act.
(b) 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 Act.
(c) Payments under grants made under this Act may
be made in installments, and in advance or by way of
reimbursement, as may be determined by the Adminis-
trator.
DEFINITIONS
SEC. 302. When used in this Act—
(a) The term "Administrator" means the Adminis-
trator 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 Gov-
ernor of that State as the official State air pollution
control agency for purposes of this Act;
(2) An agency established by two or more States
and having substantial powers or duties pertaining
to the prevention and control of air pollution;
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(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 re-
lating to the prevention and control of air pollution.
such other agency: or
(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
rrevention and control of air pollution.
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, corpora-
tion, partnership, association. State, municipality, politi-
cal 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, bor-
ough, county, parish, district, or other public bodv cre-
ated by or pursuant to State law.
(g) The term "air pollutant" means any air pollution
agent or combination of such agents, including any phv-
sical. chemical, biological, radioactive (including source
material, special nuclear material, and byproduct mate-
rial) substance or matter which is emitted into or other-
wise enters the ambient air.
(h) All language referring to effects on welfare in-
cludes, hut is not limited to. effects on soils, water, crops
vegetation, man-made materials, animals, wildlife
weather, visibility, and climate, damage to and deteriora-
tion of property, and hazards to transportation, as well
as effects on economic values and on personal comfort
and well-being.
(i) The term "Federal land manager" means, with re-
spect 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 wurce" and "major emitting facility"
STfcT^SlTS f"^ °f so"w °.f .™ Po"''«»its
uans
In ndrJ'r^ *"**• °f h°S th* I"**"""1 '» ™S ™
hundred tons per year or more of any air pollutant (in-
cliirling any major emitting facility or source of fugitive
* POU"'ftnt- " d''ermin
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Chapter One The Clean Air Act
147
(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 con-
tinuous basis, including any requirement relating to the
operation or maintenance of a source to assure continu-
ous emission reduction.
(1) The term "standard of performance" means a re-
quirement of continuous emission reduction, including
any requirement relating to the operation or mainte-
nance of a source to assure continuous emission reduction.
(m) The term "means of emission {imitation" 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 implementa-
tion plan for the attainment of a national primary am-
bient 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 en-
forceable sequence of actions or operations leading to
compliance with an emission limitation, other limitation,
prohibition, or standard.
EMERGENCY POWERS
SEC. 303. (a) Notwithstanding any other provisions
of this Act, the Administrator upon receipt of evidence
that a pollution source or combination of sources (in-
cluding moving sources) is presenting an imminent and
substantial endanaerment to the health of persons, and
that appropriate State or local authorities have not acted
to abate such sources, may bring suit on behalf of the
United States in the appropriate United States district
court to immediately restrain any person causing or con-
tributing 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 the health
of persons solely by commencement of such a civil ac-
tion, the Administrator may issue such orders as may
be necessary to protect the health of persons who are, or
may be, affected hy such pollution source (or sources).
Prior to taking any action under this section, the Ad-
ministrator shall consult with the State and local au-
thorities in order to confirm the correctness of the in-
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formation on which the action proposed to he taken is
based and to ascertain the action which such authorities
are, or will be, taking. Such order shall l>e 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 nn 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 there-
after.
(b) Any person who willfully violates, or fails or re-
fuses to comply with, any order issued by the Admin-
istrator under subsection (a) may. in an action brought
in the appropriate United States district court to enforce
such order, be fined not more than $5.000 for each day
during which such violation occurs or failure to comply
continues.
CITIZEN SUITS
SEC. 304. (a) Except as provided in subsection (b),
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 instrumen-
tality or agency to the extent permitted by the Elev-
enth Amendment to the Constitution) who is alleged
to b« in violation of (A) an emission standard or
limitation under this Act or (B) an order issued by
the Administrator or a State with respect to such a
standard or limitation.
(2) against the Administrator whore there is al-
leged a failure of the Administrator to perform any
act or duty under this Act which is not discretionary
with the Administrator, or
(3) against any person who proposes to constnict
or constructs any new or modified major emitting fa-
cility without a permit required under part C of title
I (relating to significant deterioration of air qual-
ity) or part D of title I (relating to nonattninment)
or who is alleged to be in violation of any condition
of such permit.
The district courts shall havo jurisdistion. without re-
gard to the amount in controversy or the citizenship of
the parties, to enforce such an emission standard or limi-
tation, or such an order, or to order the Administrator
to perform such act or duty, as the case may be.
(b) No action may be commenced—
(1) under subsection (a)(l) —
(A) prior to 60 days after the plaintiff has
given notice of the violation (i) to the Adminis-
trator, (ii) to the State in which the violation
ivoiirs. and (iii) to any alleged violator of the
standard limitation, or order, or
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(B) if the Administrator or State has com-
menced and is diligently prosecuting a civil
action in a court of the United States or a State
to require compliance with the standard, limi-
tation, 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) 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 112(c)(l)(B)
or an order issued by the Administrator pursuant to
section 113(a). Notice under this subsection shall be
given in such manner as the Administrator shall pre-
scribe by regulation.
(c) (1) Any action respecting a violation by a station-
ary 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 such action under this section, the Adminis-
trator, if not a party, may intervene as a matter of right.
(d) 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, reauire the filing of a bond or equivalent secu-
rity in accordance with the Federal Rules of Civil Proce-
dure.
(e) 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
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 in-
strumentality thereof, or any officer, agent, or employee
thereof under State or local law respecting control and
abatement of air pollution. For provisions requiring com-
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Chapter One The Clean Air Act
pliance by the United States, departments, agencies, in-
strumentalities, officers, agents, and employees in the same
manner as nongovernmental entities, see section 11*.
(f) For purposes of this section, the term "emission
standard or limitation under this Act" means—
(1) a schedule or timetable of compliance, emis-
sion limitation, standard of performance or emission
standard,
(2) a control or prohibition respecting a motor
vehicle fuel or fuel additive, which is in effect under
this Act (including a requirement applicable by rea-
son of section 118) or under an applicable implemen-
tation plan, or
(3) any condition or requirement of a permit
under part C of title I (relating to significant de-
terioration of air quality) or part D of title I (relat-
ing to nonattainment), any condition or requirement
of section 113(d) (relating to certain enforcement
orders), section 119 (relating to primary nonferrous
smelter orders), any condition or requirement under
an applicable implementation plan relating to trans-
portation control measures, air quality maintenance
plans, vehicle inspection and maintenance programs
or vapor recovery requirements, section 211 (e) and
il2A / tn* to *ue'? ??d fuel additives), section
169 A (relating to visibility protection), any condi-
tion or requirement under part B of title I (relating
to ozone protection), or any requirement under sec-
tion 111 or 112 (without regard to whether such re-
quirement is expressed as an emission standard or
otherwise).
REPRESENTATION IN LITIGATION
SEC. 305. (a) The Administrator shall request the
Attorney General to appear and represent him in any
civil action instituted under this Act to which the Ad-
ministrator 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) In the event the Attorney General agrees to ap-
pear and represent the Administrator in any such ac-
tion, such representation shall be conducted in accord-
ance with, and shall include participation by, attorneys
appointed by the Administrator to the extent author-
ized by, the memorandum of understanding between
the Department of Justice and the Environmental Pro-
tection Agency, dated June 13, 1977, respecting repre-
sentation of the agency by the department in civil
litigation.
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FEDERAL PROCUREMENT
SEC. 306. (a) No Federal agency may enter into any
contract with any person who is convicted of any of-
fense under section 113(c)(l) 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 Ad-
ministrator certifies that the condition giving rise to
such a conviction has been corrected.
(b) The Administrator shall establish procedures to
provide all Federal agencies with the notification neces-
sary for the purposes of subsection (a).
(c) In order to implement the purposes and policy
of this Act to protect and enhance the quality of the
Nation's air, the President shall,* not more than 180
days after enactment of the Clean Air Amendments of
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 Act 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) 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) The President shall annually report to the Con-
gress on measures taken toward implementing the pur-
pose and intent of this section, including but not limited
to the progress and problems associated with implemen-
tation of this section.
GENERAL PROVISIONS RELATING TO ADMINISTRATIVE
PROCEEDINGS AND JUDICIAL REVTEW
SEC. 307. (a) (1) In connection with any determination
under section 110(f) or section 202(b)(5). or for pur-
poses of obtaining information under section 202(b) (4)
or 211(c) (3), the Administrator may issue subpenas for
the attendance and testimony of witnesses and the pro-
duction 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
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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 of the United States Code, except
that such paper, book, document, or information may be
discussed to other officers, employees, or authorized repre-
sentatives of the United States concerned with carrying
out this Act, to persons carrying out the National Acad-
emy of Sciences study and investigation provided for in
section 202 (c), or when relevant in any proceeding under
this Act. 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 subpara-
graph, the district court of the United States for any dis-
trict in which such person is found or resides or trans-
acts '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 testi-
mony before the Administrator to appear and produce
papers, books, and documents before the Administrator,
or Doth, and any failure to obey such order of the court
may be punished by such court as a contempt thereof.
(b) (1) A petition for review of action of the Adminis-
trator in promulgating any national primary or second-
ary ambient air quality standard, any emission standard
or requirement under section 112, any standard of per-
formance or requirement under section 111,' any stand-
ard under section 202 (other than a standard required to
be prescribed under section 202(b)(l)), any determina-
tion under section 202(b) (5), any control or prohibition
under section 211, any standard under section 231, any
rule issued under section 113, 119, or under section 120,
or any other nationally applicable regulations promul-
gated, or Anal action taken, by the Administrator under
this Act may be filed only in the United States Court of
Appeals for the District of Columbia. A petition for
review of the Administrator's nction in approving or
promulgating any implementation plan nnaor section
110 or section lll(d), any order under section lll(j),
under section 112(c), under section-113(d). under section
119, or under section 120, or his action under section 119
(c) (2) (A), (B), or (C) (as in effect before the date of
enactment of the Clean Air Act Amendments of 1977)
or under regulations thereunder, or any other final action
of the Administrator under this Act (including any
approval by the Administrator under title I)
which is local or regionally applicable may be filed only
in the United States Court of Appeals for the appropriate
circuit. Notwithstanding the preceding sentence a peti-
* Public LAW 96-M Inserted the additional "." ifUr the ^ordi "under
section 111".
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Chapter One The Clean Air Act
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tion 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 tak-
ing 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 promulga-
tion, 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 re-
view under this subsection shall be filed within sixty days
after such grounds arise.
(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.
(c) In any judicial proceeding in which review is
sought of a determination under this Act required to be
made on the record after notice and opportunity for hear-
ing, 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 Adminis-
trator, 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 Admin-
istrator 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 set-
ting aside of his original determination, with the return
of such additional evidence.
(d) (1) This subsection applies to—
(A) the promulgation or revision of any national
ambient air quality standard under section 109,
(B) the promulgation or revision of an implemen-
tation plan by the Administrator under section 110
(c),
(C) the promulgation or revision of any standard
of performance under section 111 or emission stand-
ard under section 112,
(D) the promulgation or revision of any regula-
tion pertaining to any fuel or fuel additive under
section 211,
(E) the promulgation or revision of any aircraft
emission standard under section 231,
(F) promulgation or revision of regulations per-
taining to orders for coal conversion under section
113(d) (5) (but not including orders granting or
denying any such orders),
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(G) promulgation or revision of regulations per-
taining to primary nonferroits smelter orders under
section 119 (but not including the granting or deny-
ing of any such order),
(H) promulgation or revision of regulations under
subtitle B of title I (relating to stratosphere and
ozone protection),
(I) promulgation or revision of regulations under
subtitle C of title I (relating to prevention of sig-
nificant deterioration of air quality and protection of
visibility),
(J) promulgation or revision of regulations under
section 202 and test procedures for new motor ve-
hicles or engines under sectoin 206. and the revision
of a standard under section 202(a) (3),
(K) promulgation or revision of regulations for
noncompliancc penalties under section 120,
(L) promulgation or revision of any regulations
promulgated under section 207 (relating to warran-
ties and compliance by vehicles in actual use),
(M) action of the Administrator under section
126 (relating to interstate pollution abatement), and
"(N) such other actions as the Administrator may
determine. The provisions of section 553 through 557
and section 706 of title 5 of the United States Code
shall not. except as expressly provided in this sub-
section, apply to action to which this subsection ap-
plies. This subsection shall not apply in the case of
any rule or circumstance referred to in subpara-
graphs (A) or (B) of subsection 553(b) of title 5 of
the United States Code.
(2) Not later than the dote of proposal of any action
to which this subsection applies, the Administrator shall
establish a rulemaking docket for such action (herein-
after in this subsection referred to as a "rule"). When-
ever a rule applies only within a particular State, a
second (identical) docket shall be established in the
appropriate regional office of the Environmental Protec-
tion Agency.
(3) In the rase of any rule to which this subsection ap-
plies, notice of proposed rulemaking shall be published
in the Federal Register, as provided under section 553 (b)
of title 5. United States Code, shall be accompanied by a
statement of its basis and purpose and shall specify the
period available .for public comment (hereinafter re-
ferred to as the "comment period"). The notice of pro-
posed 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:
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Chapter One The Clean Air Act
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(B) HIP methodology used in obtaining the data
and in analyzing the data: nnd
(C) the major legal interpretations and policy
considerations underlying the proposed rule.
The statement shall also set forth or summarize and pro-
vide a reference to any pertinent findings, recommenda-
tions, and comments by the Scientific Review Committee
established under section 109(d) and the National Aca-
demy of Sciences, and, if the proposal differs in any im-
portant respect from any of these recommendations, an
explanation of the reasons for such differences. All data,
information, and documents referred to in this para-
graph 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 para-
graph (2) shall be open for inspection by the public at
reasonable times specified in the notice of proposed rule-
making. Anyperson 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 re-
duce 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 writ-
ten comments and documentary information on the pro-
posed 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.
jii) 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 promul-
gation and all such written comments thereon, all docu-
ments accompanying such drafts, and written responses
thereto shall he placed in the docket no later than the date
of promulgation.
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(5) In promulgating a rule to which thLs subsection
applies (i) the Administrator shall allow any person to
submit wntten comments, data, or documentary informa-
tion; (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 writ-
ten 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 rubuttal and supplementary informa-
tion.
(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, criti-
cisms, and new data submitted in written or oral presenta-
tions 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),andsubparagraphs (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 re-
view of such refusal in the United States court of appeals
for the appropriate circuit (as provided in subsection
(b)). Such reconsideration shall not postpone the effec-
tiveness of the rule. The effectiveness of the rule may be
stayed during such reconsideration, however, by the Ad-
ministrator or the court for a period not to exceed three
months.
(8) The sole forum for challenging procedural deter-
minations made by the Administrator under this sub-
section shall be in the United States court of appeals for
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the appropriate circuit (as provided in subsection (b))
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 Admin-
istrator 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, privi-
lege, 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 para-
graph (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 promul-
gation less than six months after date of proposal may be
extended to not more than six months after date of pro-
posal 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 oc-
curs after ninety days after the date of enactment of the
Clean Air Act Amendments of 1977.
(e) Nothing in this Act shall be construed to authorize
judicial review of regulations or orders of the Adminis-
trator under this Act, except as provided in this section.
(f) In any judicial proceeding under this section, the
court may award costs of litigation (including reason-
able attorney and expert witness fees) whenever it deter-
mines that such award is appropriate.
(g) In any action respecting the promulgation of reg-
ulations under section 120 or the administration or en-
forcement of section 120 no court shall grant any stay,
injunctive, or similar relief before final judgment by such
court in such action.
MANDATORY LICENSING
SKC. 308. Whenever the Attorney General determines
upon application of the Administrator—
(1) that—
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(A) in the implementation of the require-
ments of section 111, 112, or 202 of this Act, 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 re-
quired to comply with such, limitation to so
comply, and
(B) there are no reasonable alternative meth-
ods to accomplish such purpose, and
(2) that the unavailability of such right may re-
sult in a substantial lessening of competition or ten-
dency 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 requir-
ing the person who owns such patent to license it on such
reasonable terms and conditions as the court, after hear-
ing, may determine. Such certification may be made to
the distinct court for the district in which the person
owning the patent resides, does business, or is found.
POLICY REVIEW
SEC. 309. (a) The Administrator shall review and
comment in -writing on the environmental impact of any
matter relating to duties and responsibilities granted
pursuant to this Act 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 102(2) (C) of Public
r*iILi I"190 aPPlies' and (3) Proposed regulations pub-
lished by any department or agency of the Federal Gov-
ernment. Such written comment shall be made public at
the conclusion of any such review.
(b) In the event the Administrator determines that
any such legislation, action, or regulation is unsatis-
factory from the standpoint of public health or welfare
or environmental quality, he shall publish his determina-
tion and the matter shall be referred to the Council on
Environmental Quality.
OTHER AUTHORITY NOT AFFECTED
SEC. 310. (a) Except as provided in subsection (b) of
this section, this Act shall not be construed as superseding
or limiting the authorities and responsibilities, under
any other provision of law, of the Administrator or any
,trv '"i6"" officer, department, or agency.
(b) No appropriation shall be authorized or made
under section 301. 311. or 314 of the Public Health Serv-
ice Act for any fiscal year after the fiscal year ending
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June 30, 1964, for any purpose for which appropriations
may be made under authority of this Act.
RECORDS AND AUDIT
SEC. 311. (a) Each recipient of assistance under this
Act 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 under-
taking 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) 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 Act.
COMPREHENSIVE ECONOMIC COST STUDIES AND STUDIES OF
COST-EFFECTIVENESS ANALYSIS
SEC. 312. (a) In order to provide the basis for evalu-
ating programs authorized by this act and the devel-
opment of new programs and to furnish the Congress
with the information necessary for authorization of
^Po1"0^1**1?118 by fiscal 7eare beginning after June 30,
1969, the Administrator, in cooperation with State, inter-
state, and local air pollution control agencies, shall make
a detailed estimate of the cost of carrying out the pro-
visions of this Act; a comprehensive study of the cost of
program implementation by affected units of govern-
ment; and a comprehensive study of the economic im-
pajjt o,f air quality standards on the Nation's industries,
communities, and other contributing sources of pollu-
tion, including an analysis of the national requirements
for and the cost of controlling emissions to attain such
standards of air quality as may be established pursuant
to this Act or applicable State law. The Administrator
shall submit such detailed estimate and the results of
such comprehensive study of cost for the five-year period
beginning July 1, 1969, and the results of such other
studies, to the Congress not later than January 10, I960,
and shall submit a revaluation of such estimate nnd
studies annually thereafter.
(b) The Administrator shall also make a complete
investigation and study to determine (1) the need for
additional trained State and local personnel to carry
out programs assisted pursuant to this Art and other
programs for the same purpose as this Act; (2) means
of using existing Federal training programs to train such
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personnel; and (3) the need for additional trained per-
sonnel to develop, operate and maintain those pollution
control facilities designed and installed to implement air
quality standards. He shall report the results of such
investigation and study to the President and the Con-
gress not later than July 1,1969.
(c) Not later than January 1,1979, the Administrator
shall study the possibility or increased use of cost-effec-
tiveness analyses in devising strategies for the control of
air pollution and shall report its recommendations to the
Congress, including any recommendations for revisions
in any provision of this Act. Such study shall also include
an analysis and report to Congress concerning whether
or not existing air pollution control strategies are ade-
quate to achieve the purposes of this Act.
ADDITIONAL REPORTS TO CONGRESS
SEC. 313. Not later than six months after the effective
date of this section and not later than January 10 of each
calendar year beginning after such date, the Administra-
tor shall report to the Congress on measures taken to-
ward implementing the purpose and intent of this Act
including, but not limited to, (1) the progress and prob-
lems associated with control of automotive exhaust emis-
sions and the research efforts related thereto; (2) the
development of air quality criteria and recommended
emission control requirements; (3) the status of enforce-
ment actions taken pursuant to this Act; (4) the status
of State ambient air standards setting, including such
plans for implementation and enforcement as have been
developed; (5) the extent of development and expansion
of air pollution monitoring systems: (6) progress and
problems related to development of new and improved
control techniques; (7) the development of quantitative
and qualitative instrumentation to monitor emissions
and air quality; (8) standards set or under consideration
pursuant to title El of this Act; (9) the status of State,
interstate, and local pollution control programs estab-
lished pursuant to and assisted by this Act; (10) the
reports *nd recommendations made by the President's
Air Quality Advisory Board; and (11) (A) the status
of plan provisions developed by States as required under
section IMHa) (2) (F) (vh and an accounting of States
failing to develop suitable plans; (B) the number of
annual incidents of air pollution reaching or exceeding
levels determined to present an imminent and substantial
endangerment to health (within the meaning of section
303) by location, date, pollution source, and the duration
of the emergency; (C) measures taken pursuant to sec-
tion 110(a) (2) (F) (v), and an evaluation of their effec-
tiveness in reducing pollution; and (D) an accounting
of those instances in which an air pollution alert, warn-
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ing, or emergency is declared as required under regula-
tions of the Administrator and in which no action is
taken by either the Administrator. State, or local officials,
together with an explanation for the failure to take
action.
LABOB STANDARDS
SEC. 314. The Administrator shall take such action as
may be necessary to insure that all laborers and mechan-
ics employed by contractors or subcontractors on projects
assisted under this Act 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 2 of the Act of
June 13,1934, as amended (48 Stat. 948; 40 U.S.C. 276c).
SEPARABILITY
SEC. 315. If any provision of this Act, or the appli-
cation of any provision of this Act to any person or
circumstance, is held invalid, the application of such pro-
vision to other persons or circumstances, and the re-
mainder of this Act, shall not be affected thereby.
SEWAGE TREATMENT GRANTS
SEC. 316. (a) No grant which the Administrator is au-
thorized to make to any applicant for construction of
^•g® treatment works in an7 area in »ny State may be
withheld, conditioned, or restricted by the Administra-
tor on the basis of any requirement of this Act except as
provided in subsection (b).
(b) The Administrator may withhold, condition, or re-
strict the making of any grant for construction referred
to in subsection (a) only if he determines that^-
(1) such treatment works will not comply with
applicable standards under section 111 or 112,
(2) the State does not have in effect, or is not car-
rying 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 title I
applies for such pollutant) which increase may rea-
sonably be anticipated to result directly or indirectly
from the new sewage treatment capacity which
would be created by such construction.
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(3) the construct inn ^f Midi treatment \\»rk^
would create new buwugu treatment capacity \\ liith—
(A) may reasonably be anticipated to cause
or contribute to, directly or indirectly, an in-
crease in emissions of any air pollutant in ex-
cess of the increase provided for under the pro-
visions 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 imple-
mentation plan for any other State.
In the case of construction of a treatment works which
would result, directly or indirectly, in an increase in emis-
sions of any air pollutant from stationary and mobile
sources in an area to which part D of title I applies, the
quantification of emissions referred to in paragraph (2)
shall include the emissions of any such pollutant result-
ing directly or indirectly from areawide and nonmaior
stationary source growth (mobile and stationary) tor
each such area.
(c) Nothing in this section shall be construed to amend
or alter any provision of the National Environmental
Policy Act 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.
ECONOMIC IMPACT ASSESSMENT
SEC. 317. (a) This section applies to action of the
Administrator is promulgating or revising—
(1) any new source standard of performance
under section 111(b),
(2) any regulation under section lll(d),
(3) any regulation under part B of title I (relat-
ing to ozone and stratosphere protection),
(4) any regulation under part C of title I (relat-
ing to prevention of significant deterioration of air
quality),
(5) any regulation establishing emission stand-
ards under section 202 and any other regulation pro-
mulgated under that section,
(6) any regulation controlling or prohibiting any
fuel or fuel additive under section 211 (c), and
(7) any aircraft emission standard under section
231.
Nothing in this section shall apply to any standard or
regulation described in paragraphs (1) through (7) of
this subseciton unless the notice of proposed rulemaking
in connection with such standard or regulation is pub-
lished in the Federal Register after the date ninety days
after the date of enactment of this section. In the case of
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revisions of such standards or regulations, this section
shall apply only to revisions which the Administrator
determines to be substantial revisions.
(b) Before publication of notice of proposed rulemak-
ing 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 dock-
et required under section 307(d)(2) and shall be avail-
able to the public as provided in section 307(d)(4).
Notice of proposed rulemakinjr shall include notice of
such availability together with an explanation of the
extent and manner in which the Administrator has con-
sidered 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). Each such explanation shall be part
of the statements of basis and purpose required under
sections307(d) (3) and 307(d) (6).
(c) Subject to subsection (d), the assessment required
under this section with respect to any standard or regu-
lation shall contain an analysis of—
(1) the costs of compliance with any such stand-
ard 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 ef-
fects 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).
(d) The assessment required under this section shall be
as extensive as practicable, in the judgment of the Admin-
istrator taking into account the time and resources avail-
able to the Environmental Protection Agency and other
duties and authorities which the Administrator is re-
quired to carry put under this Act.
(e) Nothing in this section shall be construed—
(1) to alter the basis on which a standard or regu-
lation is promulgated under this Act;
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(2) to preclude the Administrator from carrying
out his responsibility under this Act to protect pub-
lic health and welfare; or
(3) to authorize or require any judicial review of
any such standard or regulation, or any stay or in-
junction of the proposal, promulgation, or effective-
ness of such standard or regulation on the basis of
failure to comply with this section.
(f) The requirements imposed on the Administrator
under this section shall be treated as nondiscretionary
duties for purposes of section 304(a) (2), relating to citi-
zen suits. The sole method for enforcement of the Admin-
istrator's duty under this section shall be by bringing a
citizen suit under such section 304(a) (2) for a court order
to compel the Administrator to perform such duty. Vio-
lation of any such order shall subject the Administrator
to penalties for contempt of court.
(g) In the case of any provision of this Act 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 pro-
vision as conclusive with respect to compliance or non-
compliance with the requirement of such provision to take
cost into account.
FINANCIAL DISCLOSURE; CONFLICTS OF INTEREST
SEC. 318. (a) Each person who—
(1) has any known financial interest in (A) any
person subject to this Act, or (B) any person who
applies for or receives any grant, contract, or other
form of financial assistance pursuant to this Act, and
(2) is (A) an officer or employee of the Environ-
mental Protection Agency whojperforms any func-
tion of duty under this Act, (B) a member of the
National Commission on Air Quality appointed as a
member of the public, or (C) a member of the sci-
entific review committee under section 109(d)
shall, beginning six months after the date of enactment
of this section, annually file with the Administrator, a
written statement concerning all such interests held by
such officer, employee, or member during the preceding
calendar year. Such statement shall be available to the
public.
(b) The Administrator shall—
(1) act within ninety days after the date of enact-
ment of the Clean Air Act Amendments of 1977—
(A) to define the term "known financial in-
terest" for purposes of subsection (a) of this
section;
(B) to establish the methods by which the
requirement to file written statements specified
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in subsection (a) of this section will be moni-
tored and enforced, including appropriate pro-
visions for the filing by such officers, employees
and members of such statements and the review
by the Administrator for the Commission in the
case of members of the Commission) of such
statements; and
(2) report to the Congress on June 1 of each cal-
endar year with respect to such statements to the
Administrator and the actions taken in regard thereto
during the preceding calendar year.
(c) After the date one year after the date of the enact-
ment of this section, no person who—
(1) is employed by, serves as attorney for, acts as
a consultant for, or holds any other official or con-
tractual relationship to—
(A) the owner or operator of any major sta-
tionary source or any stationary source which is
subject to a standard of performance or emis-
sion standard under section 111 or 112,
(B) any manufacturer of any class or cate-
gory of mobile sources if such mobile sources
&n,n\ ]CCt t0 "Potion "nder this Act,
(C) any trade or business association of
which such owner or operator referred to in sub-
paragraph (A) or such manufacturer referred
to in subparagraph (B) is a member or
(Sll an? organization (whether or not non-
profit) which is a party to litigation, or engaged
m political, educational, or informational ac-
tivities, relating to air quality, or
(2) owns, or has any financial interest in, any
stock, bonds, or other financial interest which owner-
snip or interest may be inconsistent with a position
as an officer or employee of the Environmental Pro-
tection Agency, as determined under regulations of
the Administrator,
may concurrently ™_ve as such an officer or employee of
^Environmental Prot«ct»on Agency.
(
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1977, and at least every three years thereafter, the Ad-
ministrator shall conduct a conference on air quality
modeling. In conducting such conference, special atten-
tion shall be given to appropriate modeling necessary for
carrying out part C of title I (relating to prevention of
significant deterioration of air quality).
(b) 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, in-
cluding the National Science Foundation; the National
Oceanic and Atmospheric Administration, and the Na-
tional Bureau of Standards.
(c) Interested persons shall be permitted to submit
written comments and a verbatim transcript of the con-
ference proceedings shall be maintained.
(d) The comments submitted and the transcript main-
tained pursuant to subsection (c) shall be included in the
docket required to be established for purposes of pro-
mulgating or revising any regulation relating to air qual-
ity modeling under part C of title I.
EMPLOYMENT EFFECTS
SEC. 321. (a) The Administrator shall conduct con-
tinuing evaluations of potential loss or shifts of employ-
ment which may result from the administration or en-
forcement of the provision of this Act and applicable
implementation plans, including where appropriate, in-
vestigating threatened plant closures or reductions in
employment allegedly resulting from such administra-
tion or enforcement.
(b) Any employee, or any representative of such em-
ployee, who is discharged or laid off. threatened with dis-
charge or layoff, or whose employment is otherwise ad-
versely affected or threatened to" be adversely affected
because of the alleged results of any requirement im-
posed or proposed to he imposed under this Act, includ-
ing any requirement applicable to Federal facilities nnd
any requirement imposed by a State or political sub-
division thereof, may request the Administrator to con-
duct a full investigation of the matter. Any such request
shall be reduced to writing, shall set forth with reason-
able particularity the grounds for the request, and shall
he signed by tho employee, or representative of such
employee, making the request. The Administrator shall
thereupon investigate the matter and. at the request of
any parlv, shall hold public hearings on not less than
five days' notice. At such hearincrs. the Administrator
shall require the parties, including the employer in-
volved, in present information relating to the actual or
potential effect of such requirements on employment and
the detailed reasons or justification therefor. If the Ad-
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ministrator 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 Admin-
istrator does convene such a hearing, the hearing shall
be on the record. Upon receiving the report of such inves-
tigation, 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 snail be available to the
public.
(c) In connection with any investigation or public
hearing conducted under subsection (b) of this section
or as authorized in section 119 (relating to primary non-
ferrous smelter orders), the Administrator may issue sub-
penas for the attendance and testimony of witnesses and
(lie production of revelant 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 of the United States Code, except
that such paper, book, document, or information may be
disclosed to other officers, employees, or authorized rep-
resentatives of the United States concerned with carry-
ing out this Act, or when relevant in any proceeding un-
der this Act. 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 sub-
paragraph, the district court of the United States for any
district in which such person is found or resides or trans-
acts 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 testi-
mony 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) Nothing in this section shall be construed to re-
quire or authorize the Administrator, the States, or polit-
ical subdivisions thereof, to modify or withdraw any
requirement imposed or proposed to be imposed under
this Act.
EMPLOYEE PROTECTION
SEC. 322. (a) No employer may discharge any em-
ployee or otherwise discriminate against any employee
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Chapter One The Clean Air Act
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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 pro-
ceeding under this Act or a proceeding for the ad-
ministration or enforcement of any requirement
imposed under this Act or under any applicable im-
plementation plan.
(2) testified or is about to testify in any such pro-
ceeding, 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 Act.
(b) (1) Any employee who believes that he has been
discharged or otherwise discriminated against by any
person in violation of subsection (a) 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
(2HA) Upon receipt of a complaint filed under para-
graph (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 subpara-
graph (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 para-
graph (1), the Secretary determines that a violation of
subsection (a) has occurred, the Secretary shall order the
person who committed such violation to (i) take affirma-
tive 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 mav
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Chapter One The Clean Air Act
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order such person to provide compensatory damages to
the complainant. If an order is issued under this para-
graph, tne Secretary, at the request oi the complainant,
snail assess against the person against whom the order is
issued a sum equal to tne aggregate amount of all costs
and expenses (including attorneys' and expert witness
fees) reasonably incurred, as determined by the Secre-
tary, by the complainant for, or in connection with, the
bringing of the complaint upon which the order was
issued.
(c) (1) Any person adversely affected or aggrieved by
an order issued under subsection (b) 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 of the United States Code. The commence-
ment of proceedings under this subparagraph shall not,
unless ordered by the court, operate as a stay of the Sec-
retary'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) Whenever a person has failed to comply with an
order issued under subsection (b) (2), the Secretary may
fil« » 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 sub-
section, the district courts shall have jurisdiction to grant
all appropriate relief including, but not limited to, in-
junctive relief, compensatory, and exemplary damages.
(e) (1) Any person on whose behalf an order was issued
under paragraph (2) of subsection (b) may commence a
civil action against the person to whom such order was
issued to require compliance with such order. The appro-
priate United States district court shall have jurisdiction,
without regard to the amount in controversy or the citi-
zenshipof the parties, to enforce such order.
(2) The court, in issuing any final order under this sub-
section, may award costs of litigation (including reason-
able attorney and expert witness fees) to any party when-
ever the court determines such award is appropriate.
(f) Any nondiscretionary duty imposed by this section
shall be enforceable in a mandamus proceeding brought
under section 1361 of title 28 of the United States Code.
(g) Subsection (a) shall not apply with respect to any
employee who, acting without direction from his em-
ployer (or the employer's agent), deliberately causes a
violation of any requirement of this Act.
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[The renumbering of the following sections is in ac-
cordance with Public Law 9G-300].
COST OF EMISSION CONTROL FOR CERTAIN VAPOR RECOVERY
TO BE BORNE BY OWNER OF RETAIL OUTLET
SEC. 3847 323 (a) The regulations under this Act appli-
cable 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 subsec-
tion (b), such regulations shall provide that no lease of
a retail outlet by the owner thereof which is entered into
or renewed after the date of enactment of the Clean Air
Act Amendments of 1977 may provide for a payment by
the lessee of tlus cost of procurement anil 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 own-
er of such outlet by means of price increases in the cost of
any product sold by such owner, notwithstanding any
provision of law.
(h) The regulations of the Administrator referred to
in subsection (u) shall permit a lease of a retail outlet to
provide for payment by the lessee of the cost of procure-
ment and installation of vapor recovery requirement
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.
VAPOR RECOVERY FOR SMALL BUSINESS MARKETERS OF
PETROLEUM PRODUCTS
(a) The regulations under this Act appli-
cable 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 «'as-
olme 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
pisolme. for a three-year phase-in period for the installa-
tion of such vapor recovery equipment at such outlets
under which such marketers shall have—
( 1 ) 33 pot-cent of such outlets in rompliance at the
end of the first year during which such regulations
apply to such marketers,
(2) fi6 percent at the end of such .second vear. and
(3) 100 percent at the end of the third year.
<[>) Nothing in subsection (a) shall be construed to
prohibit any State from adopting or enforcing, with re-
spect to independent small business marketers of gasoline
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Chapter One The Clean Air Act
172
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) 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 equip-
ment under section 324 of this Act 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 Admin-
istrator) 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 in-
come from refining or marketing of gasoline.
For the purpose of this section, the term "refiner" shall
not include any refiner whose total refinery capacity (in-
cluding the refinery capacity of any person who controls,
~~\a controlled by, or is under common control with, such
refiner) does not exceed 65,000 barrels per day. For pur-
poses of this section, "control" of a corporation means
ownership of more than 50 percent of its stock.
CONSTRUCTION OT CERTAIN CLAUSES
SEC.-9W-. 325 The parenthetical cross references in any
provision of this Act to other provisions of the Act, 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.
AFPBOFRIATTONS
SEC.-&B?-. SZ6 (a) There are authorized to be appropri-
ated to carry out this Act (other than provisions for
which amounts are authorized under subsection (b)),
$200,000,000 for the fiscal year 1978 and for each of the
three fiscal years beginning thereafter.
(b)(l) There are authorized to be appropriated to
carry out section 175 beginning in fiscal year 1978, $75,-
000,000 to be available until expended.
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Chapter One The Clean Air Act
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(2) There are authorized to be appropriated for use in
carrying out section 323 (relating to National Commis-
sion on Air Quality), not to exceed $10,000,000 beginning
in fiscal year 1978. For the study authorized under sec-
tion 323 there shall be made available by contract to the
National Commission on Air Quality from the appropri-
ation to the Environmental Protection Agency for fiscal
year 1977 the sum of $1,000,000.
(3) There are authorized to be appropriated to carry
out section 127 (relating to grants for public notification)
$4,000,000 for the fiscal year 1978 and each of the three
succeeding fiscal years.
(4) For purposes of section 103(a) (5), there are au-
thorized to be appropriated $7,500,000 for the fiscal year
1978 and each of the three fiscal years beginning after
the date of enactment of the Clean Air Act Amendments
of 1977.
(5) For the purpose of carrying out the provisions of
part B of title I relating to studies and reports, there are
authorized to be appropriated—
(A) to the National Aeronautics and Space Ad-
ministration, the National Science Foundation, and
the Department of State, such sums as may be neces-
sary for the fiscal year ending September 30, 1977,
and the fiscal year ending September 30, 1978;
(B) to the Environmental Protection Agency,
$157,000,000 for fiscal year 1978; and
(C) to all other agencies such sums as may be
necessary.
(6) There are authorized to be appropriated for carry-
ing out research, development and demonstration under
sections 103 and 104 of this Act $120,000,000 for fiscal
year 1978.
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Chapter One The Clean Air Act
PROVISIONS OF PUBLIC LAW 95-95 WHICH
DO NOT AMEND THE CLEAN AIR ACT
TRAINING
SEC. 101. (a) * • •
• • • • •
(c) The Administrator of the Environmental Protec-
tion Agency shall consult with the House Committee on
Science and Technology on the environmental and atmos-
pheric research, development, and demonstration aspects
of this Act. In addition, the reports and studies required
by this Act that relate to research, development, and
demonstration issues shall be transmitted to the Com-
mittee on Science and Technology at the same time they
are made available to other committees of the Congress.
• ' • • * •
COMPLIANCE ORDERS (INCLUDING COAL CONVERSION)
SEC. 112. (a) • • •
(b)(l) Section 119 of such Act is hereby repealed.
All references to such section 119 or subsections thereof
in section 2 of the Energy Supply and Environmental
Coordination Act of 1974 (Public Law 93-319) or any
amendment thereto, or any subsequent enactment which
supersedes such Act. shall be construed to refer to sec-
tion 113(d) of the Clean Air Act and to paragraph (5)
thereof in particular. Any certification or notification
required to be given by the Administrator of the Envi-
ronmental Protection Agency under section 2 of the
Energy Supply and Environmental Coordination Act of
1974 or any amendment thereto, or any subsequent enact-
ment which supersedes such Act. shall be (riven only
when the Governor of the State, in which is located the
source to which the proposed order under section 113(d)
(5) of the Clean Air Act is to be issued gives his prior
written concurrence.
(2) In the case .of any maior stationary source to
which any requirement is applicable under section 113
(d)(5)(B) of the Clean Air Act and for which certi-
fication is required under section 2 of the Enenry Supply
and Environmental Coordination Act of 1974 or any
amendment thereto, or any subsequent enactment which
(175)
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Chapter One The Clean Air Act
176
supersedes such Act, the Administrator of the Environ-
mental Protection Agency shall certify the date which
he determines is the earliest date that euch source will
be able to comply with all such requirements. In the case
of any plant or installation which the Administrator of
the Environmental Protection Agency determines (after
consultation with the State) will not be subject to an
order under section 113(d) of the Clean Air Act and for
which certification is required under section 2 of the
Energy Supply and Environmental Coordination Act of
1974 or any amendment thereto, or any subsequent en-
actment which supersedes such Act, the Administrator
of the Environmental Protection Agency shall certify
the date which he determines is the earliest date that such
plant or installation will be able to burn coal in compli-
ance with all applicable emission limitations under the
implementation plan.
(3) Any certification required under section 2 of the
Energy Supply and Environmental Coordination Act of
1974 or any amendment thereto, or any subsequent enact-
ment which supersedes such Act, or under this subsection
may be provided in an order under section 113(d) of
the Clean Air Act.
UKBBOULATED POLLUTANTS
SEC. 120. (a) • • •
• • • • •
(b) The Administrator of the Environmental Pro-
tection Agency shall conduct a study, in conjunction with
other appropriate agencies, concerning the effect on the
Eublic health and welfare of sulfates, radioactive pol-
itantej cadmium, arsenic, and polycyclic organic mat-
ter which are present or may reasonably be anticipated
to occur in the ambient air. Such study shall include a
thorough investigation of how sul fates are formed and
how to protect public health and welfare from the in-
jurious effects, if any, of sul fates, cadmium, arsenic, and
polycyclic organic matter.
• • • • •
PREVENTION OP SIGNIFICANT DETERIORATION
SEC. 127. (a) • * •
* • • * •
(b) Within one year from the date of enactment of this
Act the Administrator shall report to the Congress on the
consequences of that portion of the definition of "major
emitting facility" under the amendment made by subsec-
tion (a) which applies to facilities with the potential to
emit two hundred and fifty tons per year or more. Such
study shall examine thn type of facilities covered, the
air quality benefits of including such facilities, and the
administrative aspect of regulating such facilities.
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Chapter One The Clean Air Act
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(c) Not later than one year after the date of enactment
of this Act, the Administrator shall publish a guidance
document to assist the States in carrying out their func-
tions under part C of title I of the Clean Air Act (relat-
ing to prevention of significant deterioration of air qual-
ity) with respect to pollutants, other than sulfur oxides
ana particulates, for which national ambient air quality
standards are promulgated. Such guidance document
shall include recommended strategies for controlling
photochemical oxidants on a regional or multistage basis
tor the purpose of implementing part C and section 110
of such Act.
(d) Not later than two years after the date of enact-
ment of this Act, the Administrator shall complete a
study and report to the Congress on the progress made
in carrying out part C of title I of the Clean Air Act
(relating to significant deterioration of air quality) and
the problems associated with carrying out such section,
including recommendations for legislative changes neces-
sary to implement strategies for controlling photochem-
ical oxidants on a regional or multistate basis.
• • • • •
NONATTAIKMENT ABBAS
SBC. 129. (a)(l) Before July 1, 1979, the interpreta-
tive regulation or the Administrator of the Environ-
mental Protection Agency published in 41 Federal Reg-
ister 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 ap-
. at th<
plicable 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).
(2) Before July 1,1979, the requirements of the regu-
lation 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) 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 require-
ments referred to in paragraphs (2) and (3)
of section 173 of the Clean Air Act (relating
to lowest achievable emission rate and compli-
ance by other sources) and which assures com-
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Chapter One The Clean Air Act
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pliance 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 reduc-
tion 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 leas than the reduction on which the waiver
was conditioned pursuant to snbparagraph (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 sen-
tence if he is satisfied that such State is in compliance
with all requirements of this subsection.
(3) Operating permits may be issued to those appli-
cants 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 enact-
ment of this Act 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 demon-
strate that the emissions from the source will be within
the limitations set forth in such construction permit.
• • * ' • •
(c) Notwithstanding the requirements of section
406(d)(2) (relating to date required for submission of
certain implementation plan revisions), for purposes of
section 110(a)(2) of the Clean Air Act each State in
which there is any nonattainmentarea (as defined in part
D of title I of the Clean Air Act) shall adopt and submit
an implementation plan revision which meets the require-
ments of section 110(a) (2) (I) and part D of title I of the
Clean Air Act not later than January 1,1979. In the case
of any State for -which a plan revision adopted and sub-
mitted before such date has made the demonstration re-
quired under section 172(a)(2) of the Clean Air Act
(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 re-
quirements of section 172 (b) and (c) of such Act.
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Chapter One The Clean Air Act
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STUDIES AND RESEARCH OBJECTIVES PUR OXIDES OF
NITROGEN
SEC. 202. (a) The Administrator of the Environmental
Protection Agency shall conduct a study of the public
health implications of attaining an emission standard
on oxides of nitrogen from light duty vehicles of 0.4 ^ram
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. The Administrator
shall submit a report of such study to the Congress, to-
gether with recommendations not later than July 1, 1980.
• • • • *
STUDT AND REPORT OF FUEL CONSUMPTION
SEC. 203. (a) Following each motor vehicle model
year, the Administrator of the Environmental Protootion
Agency shall report to the Congress respecting the motor
vehicle fuel consumption associated with the. standards
applicable for the immediately preceding model yenr.
(b) The Secretary of Transportation and the Secre-
tary of Energy shall each submit to Congress, as
promptly as practicable following submission by the Ad-
ministrator of the fuel consumption report referred to
in subsection (a), separate reports respecting stich fuel
consumption.
CARBON MONOXIDE INTRUSION INTO SUSTAINED U8E
VEHICLES
SEC. 226. (a) The Administrator, in conjunction with
the Secretary of Transportation, shall study the problem
of carbon monoxide intrusion into the passenger area of
sustained-use motor vehicles. Such study shall include
an analysis of the sources and levels of carbon monoxide
in the passenger area of such vehicles and a determina-
tion of the effects of carbon monoxide upon the pas-
sengers. The study shall also review available methods of
monitoring and testing for the presence of carbon mon-
oxide and shall analyze the cost and effectiveness of
alternative methods of monitoring and testing. The study
shall analvze the cost and effectiveness of alternative
strategies for attaining and maintaining acceptable levels
of carbon monoxide in the passenger area of snch vehi-
cles. Within one year the Administrator shall report to
the Conjnvss respecting the results of such study.
(b^ For the purpose of this section, the term "sus-
tained-use motor vehicle" means anv diesel or gasoline
fueled motor vehicle (whether light or heavy duty)
which, as determined by the Administrator (in conjunc-
tion with the Secretary), is normally used and occupied
for a sustained, continuous, or extensive period of time,
including buses, taxicabs, and police vehicles.
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Chapter One The Clean Air Act
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INTERAOENCT COOPERATION ON PREVENTION OF ENVIRON-
MENTAL CANCER AND HEART AND LtTNO DISEASE
SEC. 402. (a) Not later than three mouths after the
date of enactment of this section, there shall be estab-
lished a Task Force on Environmental Cancer and Heart
and Lung Disease (hereinafter referred to as the 'Task
Force'). The Task Force shall include representatives
of the Environmental Protection Agency, the National
Cancer Institute, the National Heart, Lung, and Blood
Institute, the National Institute of Occupational Safety
and Health, and the National Institute on Environmen-
tal Health Sciences, and shall be chaired by the Admin-
istrator (or his delegate).
(b) The Task Force shall—
(1) recommend a comprehensive research pro-
gram to determine and quantify the relationship be-
tween environmental pollution and human cancer
and heart and lung disease:
(2) recommend comprehensive strategies to re-
duce or eliminate the risks of cancer or such other
diseases associated with environmental pollution;
(3) recommend research and such other measures
as may be appropriate to prevent or reduce the in-
cidence of environmentally related cancer and heart
and lung diseases;
(4) coordinate research by, and stimulate coopera-
tion between, the Environmental Protection Agency,
the Department of Health, Education, and Welfare,
and such other agencies as mav be appropriate to
prevent environmentally related cancer and heart
and lung diseases: and
(5) report to Congress, not later than one vear
after the date of enactment of this section and an-
nually thereafter, on the problems and progress in
carrying out this section.
6 IT) DIES
SEC. 403. (a) Not later than eighteen months after
the date of the enactment of this Act, the Administrator
of the Environmental Protection Agency, in cooperation
with the National Academy of Sciences, shall study and
report to Congress on (1) the relationship between the
size, weight, and chemical composition of suspended par-
ticulate matter and the nature and decree of the en-
dangerment to public health or welfare presented by such
participate matter (espwinlly with respect to fine par-
ticulate mutter) and (2> the availability of technology
for controlling such participate matter.
(b) The Administrator of the Environmental Protec-
tion Agency shall conduct a study and report to the
Congress not later than January i, 1979, on the effects
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on public health and welfare of odors or odorous emis-
sions, the sources of such emissions, the technology or
other measures available for control of such emissions
and the costs of such technology or measures, and the
costs and benefits of alternative measures or strategies to
abate such emissions. Such report shall include an evalua-
tion of whether air quality criteria or national ambient
air quality standards should be published under the Clean
Air Act for odors, and what other strategies or author-
ities under the Clean Air Act are available or appro-
priate for abating such emissions.
(c) (1) Not later than twelve months after the date of
enactment of this Act the Administrator of the Environ-
mental Protection Agency shall publish throughout the
United States a list of all known chemical contaminants
resulting from environmental pollution which have been
found in human tissue including blood, urine, breast
milk, and ail other human tissue. Such list shall be pre-
pared for the United States and shall indicate the ap-
proximate number of cases, the range of levels found, and
the mean levels found.
(2) Not later than eighteen months after the date of
enactment of this Act the Administrator shall publish
in the same manner an explanation of what is known
about the manner in which the chemicals described in
paragraph (1) entered the environment and thereafter
human tissue.
(3) The Administrator, in consultation with National
Institutes of Health, the National Center for Health
Statistics, and the National Center for Health Services
Research and Development, shall, if feasible, conduct an
epidemiological study to demonstrate the relationship
between levels of chemicals in the environment and in
human tissue. Such study shall be made in appropriate
regions or areas of the United States in order to deter-
mine any different results in such regions or areas. The
results of such study shall, as soon as practicable, be
reported to the appropriate committee of the Congress.
(d) The Administrator of the Environmental Protec-
tion Aarency shall conduct a study of air quality in various
areas throughout the country including the gulf coast
region. Such study shall include analysis of liquid and
solid aerosols and other fine partioulate matter and the
contribution of such substances to visibility and public
health problems in such areas. For the purposes of this
study, the Administrator shall use environmental health
experts from the National Institutes of Health and other
outside agencies and organizations.
(e)(l) The Secretary of Labor, in consultation with
the Administrator, shall conduct a study of potential dis-
location of employees due to implementation of laws ad-
ministered by the Administrator. Such study shall esti-
mate the number of employees so affected, identify exist-
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Chapter One The Clean Air Act
182
ing sources of assistance availnhle fo such employees.
assess the adequacy of such assistance, and recommend
additional adjustment measures, if justified.
(2) The Secretary shall submit to Congress the results
of the study conducted under paragraph (1) not more
than one year after the date of enactment of this section.
(f) The Administrator of the Environmental Protec-
tion Agency shall undertake to enter into appropriate
arrangements with the National Academy of Sciences to
conduct continuing comprehensive studies and investiga-
tions of the effects on public health and welfare of emis-
sions subject to section 202 (a) of the Clean Air Act
(including sulfur compounds) and tihe technological
feasibility of meeting emission standards required to be
prescribed by the Administrator by section 202(b) of
such Act. The Administrator shall report to the Congress
within six months of the date of enactment of this section
and each year thereafter regarding the status of the con-
tractual arrangements and conditions necessary to imple-
ment this paragraph.
(g) The Administrator of the Environmental Protec-
tion Agency shall conduct a study and report to Congress
by the date one year after the date of the enactment of
this section, on the emission of sulfur-bearing compounds
from motor vehicles and motor vehicle engines and air-
craft engines. Such study and report shall include but
not be limited to a review of the effects of such emissions
on public health and welfare and an analysis of the costs
and benefits of alternatives to reduce or eliminate such
emissions (including desulfurization of fuel, short-term
allocation of low sulfur crude oil, technological devices
used in conjunction with current engine technologies,
alternative engine technologies, and other methods) as
may be required to achieve any proposed or promulgated
emission standards for sulfur compounds.
RAH£OAD EMISSION 8TTTDT
SEC. 404. (a) The Administrator of the Environmental
Protection Agency shall conduct a study and investiga-
tion of emissions of air pollutants from railroad loco-
motives, locomotive engines, and secondary power sources
on railroad rolling stock, in order to determine—
(1) the extent to which such emissions affect air
quality in air quality control regions throughout the
United States,
(2) the technological feasibility and the current
state of technology for controlling such emissions,
and
(3) the status and effect of current and proposed
/uT^f- L- local regulations affecting such emissions.
(b) Within one hundred and eighty days after com-
mencing such study and investigation, the Administrator
shall submit a report of such study and investigation,
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Chapter One The Clean Air Act
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together with recommendations for appropriate legisla-
tion, to the Senate Committee on Environment and Pub-
lic Works and the House Committee on Interstate and
Foreign Commerce.
STUDY AND REPORT CONCERNING ECONOMIC APPROACHES TO
CONTROLLING AIB POLLUTION
SEC. 405. (&) The Administrator, in conjunction with
the Council or Economic Advisors (hereinafter in this
section referred to as 'the Council'), shall undertake a
study and assessment of economic measures for the con-
trol of air pollution which could—
(1) strengthen the effectiveness of existing meth-
ods of controlling air pollution,
(2) provide incentives to abate air pollution to a
greater degree than is required by existing provi-
sions of the Clean Air Act (and regulations there-
under), and
(3) serve as the primary incentive for controlling
air pollution problems not addressed by any provi-
sion of the Clean Air Act (or any regulation there-
under) .
(b) The study of measures referred to in paragraph
(1) of subsection (a) shall concentrate on (1) identifica-
tion of air pollution problems for which existing methods
of control are not effective because of economic incentives
to delay compliance and (2) formulation of economic
measures which could be taken with respect to each such
air pollution problem which -would provide an incentive
to comply without interfering with such existing meth-
ods of control.
(c) The study of measures referred to in paragraph
(2) of subsection (a) shall concentrate on (1) identifica-
tion of air pollution problems for which existing methods
of control may not be sufficiently extensive to achieve all
desired environmental goals and (2) formulation of eco-
nomic measures for each such air pollution problem
which would provide additional incentives to reduce air
pollution without—
(A) interfering with the effectiveness of existing
methods of control, or
(B) creating problems similar to those which pre-
vent alternative regulatory methods from being used
to reach such environmental goals.
(d) The study of the measures referred to in para-
graph (3) of subsection (a) shall concentrate on (1)
identification of air pollution problems for which no
existing methods of control exist, (2) formulation of eco-
nomic measures to reduce such pollution, and (3) com-
parison of the environmental and economic impacts of
the economic measures with those of any alternative regu-
latory methods which can be identified.
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Chapter One The Clean Air Act
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(e) In conducting the study under this section, a pre-
liminary screening should be made of the problems re-
ferred to in subsections (b)(l).(c)(l),and (d)(l) and
economic measures should be formulated under subsec-
tions (b)(2), (c)(2),and (d)(2) in the most promising
cases, giving special attention to structural and admin-
istrative problems. In formulating any such measure
which provides for a charge, the appropriate level of the
charge should be determined, if possible, and the environ-
mental and economic impacts should be identified.
(f) Within one year after the date of enactment of this
Act, the Administrator shall complete a study and report
to the Congress on the advantages and disadvantages (in-
cluding an analysis of the feasibility) of establishing a
system of penalties for stationary sources on emissions of
oxides of nitrogen and make recommendations regard-
ing the establishment of such a system. Such study shall
determine if such a system will effectively encourage the
development of more effective systems and technologies
for control of emissions of oxides of nitrogen for new
major emitting facilities, or existing major emitting facil-
ities, or both. In any case in which a proposed penalty
system is recommended by the Administrator, the report
should include—
(1) a recommendation respecting the appropriate
period during which such system of penalties should
apply, and the appropriate termination date or dates
for such system, if any, taking into account—
(A) the time at which adequate technology
may reasonably be anticipated to be available to
control oxides of nitrogen for that category of
facilities,
(B) the degree to which such technology can
be expected to be used on such facilities, and
(C) the Administrator's authorities to require
the use of such technology, and
(2) recommendations respecting the compilation
of records by facilities subject to such penalties for
purposes of determining the applicability and
amount of such penalty.
(g) Not later than two years after the date of the
enactment of this section, the Administrator and the
Council shall conclude the study and assessment under
this section and submit a report containing the results
thereof to the President and to the Congress. Interim
reports on specific pollution problems and solutions rec-
ommended shall be made available to the President and
the Congress by the Administrator whenever available.
SAVTNO PROVISION; EFFECTIVE DATES
SEC. 406. (a) No suit, action, or other proceeding law-
fully commenced by or against the Administrator or any
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Chapter One The Clean Air Act
185
other officer or employee of the United States in his offi-
cial capacity or in relation to the discharge of his official
duties under the Clean Air Act, as in effect immediately
prior to the date of enactment of this Act shall abate by
reason of the taking effect of the amendments mode by
this Act. The court may, on its own motion or that of
any party made at any time within twelve months after
such taking effect, allow the same to be maintained by
or against the Administrator or such officer or employee.
(b) All rules, regulations, orders, determinations, con-
tracts, certifications, authorizations, delegations, or other
actions duly issued, made, or taken by or pursuant to
the Clean Air Act as in effect immediately prior to the
date of enactment of this Act, and pertaining to any
functions, powers, requirements, and duties under the
Clean Air Act, as in effect immediately prior to the date
of enactment of this Act, and not suspended by the
Administrator or the courts, shall continue in full force
and effect after the date of enactment of this Act until
modified or rescinded in accordance with the Clean Air
Act as amended by this Act.
(c) Nothing in this Act nor any action taken pursu-
ant to this Act shall in any way affect any requirement
of an approved implementation plan in effect under sec-
tion 110 of the Clean Air Act or any other provision
of the Act in effect under the Clean Air Act before the
date of enactment of this section until modified or re-
scinded in accordance with the Clean Air Act as amended
by this Act.
(d)(l) Except as otherwise expressly provided, the
amendments made by this Act shall be effective on date
of enactment.
(2) Except as otherwise expressly provided, each
State required to revise its applicable implementation
plan by reason of any.amendment made by this Act shall
adopt and submit to the Administrator of the Environ-
mental Protection Administration such plan revision
before the later of the date—
(A) one year after the date of enactment of this
Act. or
(B) nine months after the date of promulgation
bv the Administrator of the Environmental Protec-
tion Administration of anv regulations under an
amendment made by this Act which are necessary
for the approval of such plan revision.
NOTE
Public Law 96-300 amended the following section and
also provided for its repeal effective on the date the Na-
tional Commission on Air Quality ceased to exist. It is
shown here for information purposes only and is no
longer a part of the Clean Air Act.
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186
NATIONAL COMMISSION ON AIR QUALITY
SEC. 323. (a) There is established a National Commis-
sion on Air Quality which shall study and report to the
Congress on—
(1) available alternatives, including enforcement
mechanisms to protect and enhance the quality of
the Nation's air resources so as to promote the public
health and welfare and to achieve the other purposes
of the Act, including achievement and maintenance
of national ambient air quality standards and in ac-
cordance with subsection (b)(2) of this section the
prevention of significant deterioration of air quality;
(2) the economic, technology, and environmental
consequences of achieving or not achieving the pur-
poses of this Act and programs authorized oy it;
(3) the technological capability of achieving and
the economic, energy, and environmental and health
effects of achieving or not achieving required emis-
sion control levels for mobile sources of oxides of ni-
trogen in relation to and independent of regulation
of emissions of oxides of nitrogen from stationary
sources;
(4) air pollutants not presently regulated, which
pose or may in the future pose a threat to public
health or public welfare and options available to reg-
ulate emissions of such pollutants;
(5) the adequacy of research, development, and
demonstrations being carried out by Federal, State,
local, and nongovernmental entities to protect and
enhance air quality;
(6) the ability of (including financial resources,
manpower, and statutory authority) Federal, State,
and local institutions to implement the purposes of
the Act;
(7) the extent to which the reduction of hydro-
carbon emissions is an adequate or appropriate
method to achieve primary standards for photo-
chemical oxidants. Such study shall include—
(A) a description and analysis of the various
pollutants which are commonly referred to as
photochemical oxidants" or chemical precurs-
• era to photochemical oxidants;
(B) an analysis of any pollutants or combina-
tion of pollutants which need to be reduced to
achieve any photochemical oxidant standard,
and the amount of such reduction;
(C) the relationship tetween the reductions
of hydrocarbons, oxides of nitrogen, and any
other pollutants and the achievement of appli-
cable standards for photochemical oxidants;
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Chapter One ^__^ The Clean Air Act
187
(D) the degree to which hnokjrronnd or
natural sources and long-rnnpp »• :iu-|iort;xuon
of pollutants contribute to measured ambient
levels of photochemical ozidants;
(E) any other oxidant-related issues which
the Commission determines to be appropriate;
and
(8) (A) the special problems of small businesses
and government agencies in obtaining reductions of
emissions from existing sources in order to offset in-
creases in emissions from new sources for the pur-
poses of this Act; and
(B) alternative strategies for permitting, without
impeding the achievement of national ambient air
quality standards as expeditiously as •possible, the
construction of new facilities and the modification
of existing facilities in air quality control regions
exceeding the national ambient air quality standard
for any pollutant regulated under the Act
The Commission's study and report under paragraph
(4) shall include analysis of the health effects of pollut-
ants which are derivates of oxides of nitrogen.
(b) (1) Studies and investigations conducted pursuant
to subsection (a) shall include the effects of existing or
proposed national ambient air quality standards on em-
ployment, energy, and the economy (including State and
local), their relationship to objective scientific and medi-
cal data collected to determine their validity at existing
levels, as well as their other social and environmental
effects.
(2) The Commission shall, in carrying out the study
authorized under this section, give priority to a study of
the implementation of the provisions of part C of this
Act (relating to prevention of significant deterioration
of air quality) and its effects on the States and the Fed-
eral Oovernment In carrying out such study, the Com-
mission shall study, among other questions, the following:
(A) whether the provisions relating to the desig-
nation of, and protection of air quality in class I areas
under part C are appropriate to protect the air qual-
ity over lands of special national significance, includ-
ing recommendations for, and methods to (i) add to
or delete lands from such designation, and (ii) pro-
vide appropriate protection of the air quality over
such lands; J
(B) whether the provisions of part C, including
the three-hour and twenty-four-hour increments, (i)
affect the location and size of major emitting facili-
ties, and (a) whether such effects are in conflict or
consonance with other national policies regarding the
development of such facilities;
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Chapter One . The Clean Air Act
188
(C) whether the technology is available to control
emissions from the major emitting facilities which
are subject to regulation under part C, including an
analysis of the costs associated with that technology;
(D) whether the exclusion of nonmajor emitting
sources from the regulatory framework under this
Act will affect the protection of air quality in class I
and class II regions designated under this Act;
(E) whether the increments of change of air qual-
ity under this Act are appropriate to prevent signifi-
cant deterioration of air quality in class I and class
II regions designated under part C of title I;
(F) whether the choice of predictive air quality
models and the assumptions of those models are ap-
propriate to protect air quality in the class I and
class II regions designated under part C of title I
for the pollutants subject to regulation under part
C;and
(G) the effects of such provisions on employment,
energy, the economy (including State and local), the
relationship of such policy to the protection of the
public health and welfare as well as other national
priorities such as economic growth and national de-
fense, and its other social and environmental effects.
(c) The Commission shall, as a part of any study con-
ducted under subsection (b) (2) of this section, specifi-
cally identify any loss or irretrievable commitment of
resources (taking into account feasibility), including
mineral, agricultural and water resources, as well as land
surface-use resources.
(d) Such Commission shall be composed of thirteen
members, including the chairman and the ranking minor-
ity member of the Senate Committee on Public Works
and the House Committee on Interstate and Foreign
Commence (or delegates of such chairmen or member ap-
pointed by them from among representatives of such
committees) and nine members of the public appointed
by the President The chairman of the Commission shall
be elected from among the members thereof. Not more
than one-third of the members of the Commission may
have any interest in any business or activity regulated
under this Act.
(e) The heads of the departments, agencies, and in-
strumentalities of the executive branch of the Federal
Government shall cooperate with the Commission in
carrying out the requirements of this section, and shall
furnish to the Commission such information as the Com-
mission deems necessary to carrv out this section.
(f) A roportj together with any appropriate rocom
mcndatiom. ahull be aubmit.tj.jl tn thn ("!nn«Tcm nn thn
ho irrigation and otudy oono
tion (a) (3) of thia aeetien no later than March 1, 1076,
and tho fcouko of the iaveatigafcion and atudy coaoom
ing ouboeofeioH (b) (0) o* thia acetion na later than two
CAA Coopliance/Enforceaent 1-198 Guidance Manual 1986
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Chapter One The Clean Air Act
189
jitiiij arer me aate i
der thia Act, and fui
n enactment of the Clean AIP Act
JE^C?
other pui
— — 7 — — - —™ —- grw.fr www* A »*V .**.V»*IA4Ill*31sa CfclA/L
shall undertake to enter into appropriate arrangements
with the National Academy of Sciences to conduct a
study of the same matters required to be studied by the
Commission under subsection (b) (2) and to submit such
study to the Congress, at tho oomo timo ao required fop
the report of the Cemnuaaien eeneeniing ouch ouboootioni
Funds shall be available in the same manner, and the
Administrator shall have the same authorities and duties
respecting such study, as provided in the case of the study
authorized pursuant to section 202(c).
/ __ V A . I ••• » ...*.'
.
77TS
ia wien regard te all
— ——•--•—•—• www •+^-*rmmmmmm+tjun^im
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Chapter One The Clean Air Act
190
In the conduct of the study, the Commission
is authorized to contract with nongovernmental entities
that are competent to perform research or investigations
in areas within the Commission's mandate, and to hold
pub he hearings, fonims. and workshops to enable full
public participation. The Commission may contract with
nonprofit technical and scientific organizations, includ-
ing the National Academy of Sciences, for the purpose
of developing necessary technical information for the
f"d,y author>zed by snos
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Chapter One
4 Overview
The central components of the regulatory scheme of the Act may be said to
Include the following:
• Section 107 pertaining to Air Quality Control Regions;
• Section 109 pertaining to National Ambient Air Quality Standards;
• Section 110 pertaining to State Implementation Plans;
• Section 111 pertaining to New Source Performance Standards;
• Section 112 pertaining to National Emission Standards for Hazardous
Air Pollutants;
• Sections 113 and 120 pertaining to federal enforcement; and
• Section 114 pertaining to Inspections, monitoring and entry.
The remaining components of Titles I and III are either very specific in
nature (e.g., provisions relating to federal facilities) or are of a gen-
eral administrative nature (e.g., provisions relating to rulemaking and
Judicial review). As such, these components are not deemed, for purposes
of this manual, to be central to a basic understanding of the regulatory
scheme of the Act. These components are nevertheless important and are
discussed under the heading of "Special Considerations" in Chapter Eleven.
We have chosen this approach to avoid the potential for "losing sight of
the forest due to the trees."
National Ambient Air Quality Standards
Much of the activity engaged in by EPA and state air pollution control
agencies is aimed at achieving and maintaining the National Ambient Air
Quality Standards. Section 109 directs the Administrator to establish
NAAQS to protect the public health with an adequate margin of safety and to
protect the public welfare. The standard to protect the public health is
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Chapter One Overview
called the "primary NAAQS," and the standard to protect the public welfare
is called the "secondary NAAQS." The standards are expressed as a concen-
tration of the pollutant averaged over a period of time. Exhibit l-l lists
the NAAQS and describes some of the effects of the pollutants.
Note that the secondary standards are sometimes more stringent than the
primary standards. This is true because the values associated with the
secondary standards are sometimes more sensitive to the harmful effects of
pollutants than is human health. Section 302(h) provides:
All language referring to effects on welfare Includes, but is
not limited to, effects on soils, water, crops, vegetation,
man-made materials, animals, wildlife, weather, visibility,
and climate, damage to and deterioration of property, hazards
to transportation, as well as effects on personal comfort and
well-being.
Whether or not an NAAQS is established for a pollutant depends on the re-
sults of scientific study. Section 108 requires the Administrator to issue
air quality criteria that "accurately reflect the latest scientific knowl-
edge useful in indicating the kind and extent of all identifiable effects
on public health or welfare which may be expected from the presence of such
pollutant in the ambient air, in varying quantities." The criteria include
information, to the extent practicable, that describes the following:
• Those variable factors (Including atmospheric conditions) that, of
themselves or in combination with other factors, may alter the
effects on public health or welfare of such air pollutant;
• The types of air pollutants that, when present in the atmosphere,
may interact with such pollutant to produce an adverse effect on
public health or welfare; and
• Any known or anticipated adverse effects on welfare.
Pollutants for which criteria had been issued prior to 1970 were required
to be addressed by an NAAQS proposed within 30 days after the date of
enactment of the 1970 Amendments. Any pollutants for which criteria are
Issued after 1970 are addressed by NAAQS to be proposed simultaneously with
the issuance of the criteria. Section 109(d)(l) requires the Administrator
to "[not] later than December 31, 1980, and at five-year intervals there-
after * * * complete a thorough review of the criteria * * * and the
national ambient air quality standards * * * and promulgate such new stan-
dards as may be appropriate."
The NAAQS should not be confused with emission standards. The latter stan-
dards apply to Individual sources of air pollution or categories of Indus-
trial sources. The NAAQS, on the other hand, serve as benchmarks from
which each state derives the total emission reductions necessary to be
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Chapter One Overview
accomplished in a given area. The requisite total emission reductions are
translated into specific emission limitations that sources must meet on a
continuous basis. Consequently, EPA does not enforce the NAAQS per se.
Instead, CPA enforces emission standards designed to contribute to achieve-
ment and maintenance of the NAAQS.
Air Quality Control Regions (Section 107)
The Air Quality Act of 1967 required the designation of AQCRs based on
"jurisdlctlonal boundaries, urban-industrial concentrations, and other fac-
tors including atmospheric areas necessary to provide adequate implementa-
tion of air quality standards." [Section 107(a) (1967).] The 1970 Clean
Air Act Amendments repealed that section, but in the course of establishing
new criteria for AQCR designations, the 1970 Act carried forward the desig-
nations made up to that time. [Section 107(b)(l) (1970).] In addition,
the 1970 Act provided that the Administrator could designate as an AQCR any
interstate or major intrastate area deemed necessary or appropriate for the
attainment and maintenance of ambient air quality standards. Today, the
United States is divided into 247 AQCRs. Many AQCRs are subdivided into
smaller areas based on municipal boundaries, latitudes and longitudes, and
other boundaries. A complete list of AQCRs (and their attainment status)
is codified at 40 C.F.R. Part 81.
Within 120 days after the enactment of the 1977 Amendments, each state was
required to submit a list of all AQCRs or portions thereof that were:
• Not meeting a primary NAAQS for a criteria pollutant other than
S02 or particulates;
• Not meeting a primary NAAQS for S02 or particulates; or would
not, in the time period set forth in the SIP, attain or maintain
such standard;
• Not meeting any secondary NAAQS;
• Not classifiable on the basis of available information for S02
and partlculate NAAQS; or
• Enjoying air quality levels better than the primary or secondary
NAAQS other than for S02 or particulate matter, or for which
there is Insufficient data to be classified.
The Administrator then was given 60 days after submittal of the lists to
promulgate them with such modifications as deemed necessary. The lists are
reviewed from time to time by the state and can be revised by federal prom-
ulgation, upon submission of the revision by the state. See Bethlehem
Steel Co. v. EPA, 723 P.2d 1303 (7th Cir. 1983).
Governors are authorized, with EPA approval, to redeslgnate AQCRs for the
purpose of efficient and effective air quality management, except where a
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Chapter One Overview
proposed redeslgnatIon of boundaries Involves an AQCR chat "the Administra-
tor finds may significantly affect air pollution concentrations In another
state." In such case, the approval of the governors of each such affected
state Is required. [Section 107(e) (1970).] In Western Oil and Gas
Association v. EPA, 23 ERG 1185 (9th Clr. 1985), the court upheld EPA's
approval of the nonattalnraent designation for the San Francisco Bay Area.
In Ohio v. Ruckelshaus. 776 F.2d 1333 (6th Clr. 1985), the court upheld
EPA's refusal to redeslgnate Loraln County, Ohio, from "nonattalnraent" to
"attainment for ozone," even though monitoring data Indicated that the
county had achieved the ozone NAAQS. The Sixth Circuit concluded that EPA
had acted reasonably, because emissions from sources within Lorain County
contributed to exeedances of the ozone standard in Cleveland, Ohio.
State Implementation Plans (Section 110)
Each state must adopt and submit to the Administrator a plan for the imple-
mentation, maintenance, and enforcement of the NAAQS (primary and secon-
dary) for each AQCR or portion thereof. States adopt the plans, known as
State Implementation Plans (SIPs), after reasonable notice and public
hearing.
Following adoption of the SIP as state law, the state must submit the SIP
to the Administrator who is required "to approve or disapprove such [SIP]
or each portion thereof" after determining whether the submission satisfies
the requirements of Sections 110(a)(2)(A) through 110(a)(2)(K).
Briefly, to satisfy the minimum requirements of Sections 110(a)(2)(A)
through 110(a)(2)(K), a SIP must provide:
• For attainment of the primary NAAQS "as expedltlously as practic-
able" but, with some exceptions, no later than December 31, 1982;
• For attainment of the secondary NAAQS at a specified "reasonable
time";
• For emission limitations, schedules, and timetables for compliance
with such limitations and other measures as may be necessary to
ensure attainment and maintenance of the primary standard. Emis-
sion limitations governing the amount of emissions allowed are
called "mass standards" and those governing the amount of light
that a smoke plume may obscure are called "opacity standards." The
"other measures" usually include at least operation and maintenance
requirements (0/M);
• For a system to monitor, compile, and analyze data on ambient air
quality;
• For a program to enforce emission limitations;
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Chapter One ^ Overview
• For a program to regulate the construction, modification, and oper-
ation of sources, Including a preconstructlon review and permit
system for "new" sources In "clean air areas" (see Part C below)
and nonattalnment areas (see Part D below) as necessary to ensure
achievement and maintenance of the NAAQS;
• For the prohibition of emissions from sources In amounts that pre-
vent attainment or maintenance of the NAAQS In another state, or
Interfere with another state's program to protect visibility or to
prevent significant deterioration of air quality;
• For ensuring compliance with Section 126 relating to interstate
pollution abatement;
• For funding, personnel, and authority to implement the SIP;
• For emission monitoring by sources and periodic reporting of the
nature and amounts of the emissions;
• For emergency powers;
• For procedures to accomplish revisions to the SIP as necessary to
account for revisions to the NAAQS, or to correct substantial
inadequacies in the SIP;
• For a construction ban in nonattalnment areas unless a federally
approved Part 0 (nonattainment) plan is In effect; and
• For prevention of significant deterioration of air quality in so-
called "clean air areas" in accordance with Part C.
The Administrator shall approve the SIP or portion thereof if it meets the
requirements of Section 110(a)(2). Upon EPA approval, the SIP, or portion
thereof, becomes federally enforceable. If the Administrator determines
the SIP, or portion thereof, is substantially inadequate, the state must
revise the plan to correct the deficiency. [Section 110(a)(2)(H).]
Section 110(c) authorizes the Administrator to promulgate a SIP, or portion
thereof, for a state in any of the following circumstances: (1) if the
state falls to submit a plan; (2) if the state submits a plan, or portion
thereof, that Is not in accordance with Section 110 requirements, or (3) if
a state fails to revise a plan within 60 days after notification by the
Administrator of an inadequacy in the SIP.
Parts C and D; PSD and Nonattainment Mew Source Review
Background
In Fri v. Sierra Club. 412 U.S. 541 (1973), the Supreme Court ruled that
the 1970 Act's statement of purpose includes a requirement that SIPs
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Chapter One ___ Overview
include provisions designed to prevent significant deterioration (PSD) of
air quality in attainment areas. The Court's ruling upheld a district
court's injunction requiring EPA to disapprove state plans and to promul-
gate regulations where the plan failed to provide for the prevention of
significant deterioration of air quality. Neither Section 10l(b) (1970),
which states the purposes of the Act, nor Section L10(a)(2) (1970), which
sets forth minimum SIP requirements, explicitly required PSD.
In response to the district court's order, EPA disapproved all SIPs in
November 1972. Following the Supreme Court's affirmance of the district
court's order, EPA initiated rulemaking in 1973 to Incorporate PSD
provisions into SIPs. Regulations were promulgated in 1974 and were upheld
by the U.S. Court of Appeals for the District of Columbia Circuit.
Part C; Prevention of Significant Deterioration (Sections 160-169)
The requirements of Part C are in addition to provisions aimed at achieving
and maintaining the NAAQS. [Alabama Power Co. v. Costle, 636 F.2d 323
(D.C. Cir. 1979).] SIPs must contain "adequate provisions" to prohibit
sources from interfering with measures designed to prevent significant
deterioration of air quality in areas designated as "attainment" or "not
classifiable." [Section 110(a)(2)(J) (1977).]
The purpose of Part C is not to prohibit industrial growth in clean air
areas, nor is it to prohibit any increases in ambient concentrations of
criteria air pollutants. Instead, Part C allows industrial growth while
protecting air quality through a permit system that employs a rubric of
"baselines," "increments," "ceilings," "maximum allowable Increases," and
"maximum allowable concentrations." [Section 163.]
The groundwork for the PSD scheme lies la the classification of the PSD
areas (or parts thereof) as belonging to Class I, II, or III. (Note that
PSD areas do not necessarily have the same boundaries as AQCRs, although
they may.) The amounts of "maximum allowable increases" in emissions and
"maximum allowable concentrations" of criteria pollutants over the
"baseline" depends on this classification.
Section 162 provides that Class I areas (commonly called "pristine areas")
include:
• International parks;
• National wilderness areas that exceed 5,000 acres in size;
• National memorial parks that exceed 5,000 acres in size; and
• National parks that exceed 6,000 acres and were in existence on
August 7, 1977 (the effective date of the 1977 Amendments).
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Chapter One Overview
Class II areas lac Lade all attainment and not classifiable areas not desig-
nated as Class I areas (unless subsequently redesignated). Class III
areas, not defined In the statute, refer to areas that the state decides
not to afford the protections associated with either the pristine or Class
II areas.
Baselines and Ceilings. In the PSD scheme, each class area has specific
maximum allowable increases (called "increments") in pollution concentra-
tions for particulate matter and SOo. The maximum allowable increase
over the baseline is called the ceiling. The "ceiling" is set at a level
yielding a maximum allowable concentration that is lower than the NAAQS.
The "emphatic goal of the PSD provisions is to prevent those [ceilings]
from being exceeded." Alabama Power Co. v. Coatle, 636 F.2d 323, 362
(D.C. Cir. 1979).
Consumption of increments Is measured from established baselines. Base-
lines were established by the 1977 Amendments and refer to the ambient con-
centration levels that exist at the time of the first application for a
permit in an area subject to Part C, based on air quality data available to
EPA and the state and the monitoring data required to be submitted by the
permit applicant. [Section 169(4).] The "date of the first application
for a permit" varies with the area involved. The earliest possible base-
line date is August 7,, 1977, the effective date of Che 1977 Amendments.
For some areas, no baseline date Is yet in place because there have been no
permit applications to date. la addition, an area may have one baseline
date for S02 and another baseline date for particulate matter.
Permitting Authority. PSD Is administered in accordance with the permit
system established by Sections 110(a)(2)(D) and 165(a)(l). Either EPA or a
state may be the permitting authority. The state is the permitting author-
ity if its SIP submittal was approved by the Administrator as meeting, at a
minimum, the requirements of Sections 110(a)(2)(D), HO(a)(2)(E), and
HO(a)(2)(J) and the regulations at 40 C.F.R. §51.24.
If the Administrator disapproves the portion of the SIP submittal for PSD
as being "substantially Inadequate," 40 C.F.R. §51.24(a)(3), the state must
revise the plan within 60 days. If the revised plan la still substantially
Inadequate or if no plan is submitted at all by the state, the provisions
of 40 C.F.R. §52.21 are triggered with respect to that portion of the plan,
rendering EPA as the permitting authority. Finally, if EPA is the
permitting authority, EPA subsequently can delegate its authority under the
Act to a state that demonstrates it has the legal authority and resources
to carry out the program. [40 C.P.R. §52.21(u).]
Preconstruction Review and Permits. Section 165 and the regulations at 40
C.F.R. §52.21 establish the requirements and procedures for preconstruction
review of proposed major stationary sources (and major modifications).
These requirements are extremely complicated. This section of the manual
only attempts to set forth the basic principles involved in the
preconstruction review and permit issuance process.
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Chapter One Overview
The PSD program contemplates that new major source construction or uajor
modification cannot begin In any area to which PSD applies unless a permit
l.aa I.ooi I a of.I e a.I prior Lo cotlo I. I'ueL I.MI .11
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Chapter One Overview
If the Administrator requests, the perrait application must also
contain Information on the air quality Impact of the source,
and of "any or all general commercial, residential, Industrial,
and other growth which has occurred since August 7, 1977, In
the area the source or modification would affect."
• Additional Impact Analyses. The permit application must provide an
analysis of the Impairment that would result to visibility, soils,
and vegetation (except for vegetation that Is commercially value-
less). [40 C.F.R. §52.2l(o).J
Federal Class I Area Impacts. If a permit application Indicates that the
proposed source or modification would affect a Class I area's air quality-
related values (Including visibility), the Administrator must notify the
Federal Land Manager or other federal official directly responsible for the
management of the land. The Land Manager or other official may then demon-
strate to the Administrator that emissions from the proposed source or mod-
ification would have an "adverse impact" on the values (Including visibil-
ity). If the Administrator concurs in the demonstration, the permit cannot
be Issued, even if the emissions would not cause an exceedance of the maxi-
mum allowable Increase for Class I areas.
Procedures. Section 165(a)(2) requires that a public hearing be held with
the opportunity for interested persons to appear and submit written or oral
presentations on the air quality impact of the proposed source, control
technology requirements, and "other appropriate considerations." In
practice, EPA holds a public hearing when someone requests one. EPA issu-
ance of PSD permits is governed by the procedures at 40 C.F.R. Part 124
(applicable to several permit programs) and PSD-speclfic procedural regula-
tions at 40 C.F.R. Sections 124.41 and 124.42.
Continuing Obligations of the Permit Holder
Section 52.21(r) of 40 C.F.R. sets forth certain obligations of the
source. Construction and operation of the source must be done in
accordance with the permit and the application for the permit. Construc-
tion must commence within 18 months after receiving approval or the
approval becomes invalid, subject to certain qualifications. Finally, the
source must comply fully with applicable provisions of the SIP and other
local, state, or federal law.
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ChaPter One
Applicability of PSD or "Who Needs a PSD Permit?" ~
The preconstructlon review and permit requirements of Section 165 apply to
any: v* 3
Major emitting facility
Which commenced
Construction
After August 7, 1977
In an area to which PSD applies.
A "major emitting facility" is defined in Section 169(1) as any of 27 cate-
gories of sources (listed below) that "emit, or have the potential to emit
one hundred tons per year or more of any air pollutant" and "any other
source with the potential to emit 250 tons per year or more of any air pol-
lutant.1 In the 1978 regulations, EPA interpreted the phrase "potential to
emit by referring to a source's "uncontrolled emissions," (i.e., the pro-
jected emissions from the source operating at full capacity without pollu-
tion controls). [40 C.F.R. §§51.24(b)(3) and 51.21(b)(3) (1978).] The U
S. Court of Appeals for the District of Columbia Circuit invalidated that
?«™?itl°n ln Alabama Power Co.. et al. v. Cotitle. 636 F.2d 323 (D.C. Cir.
1979). The court ruled that an emitting facility is "major" only if:
• It actually emits the specified annual tonnage of any air
pollutant; or
• It has the potential to emit, when operating at full design capac-
ity, the statutory amount of any air pollutant.
The design capacity calculation must account for the anticipated function-
ing of the air pollution control equipment designed into the facility. Any
physical or operational limitations on the capacity to emit a pollutant,
including control equipment and restrictions on hours of operation are'
treated as part of the design capacity only if the limitation is federally
enforceable. [40 C.F.R. §52.21(b)(4) (1983).] For example, a boiler whose
uncontrolled emissions are 115 tons of S02 per year but which has been
designed to meet a federally enforceable limit of 90 tons per year of SOo
would not be subject to PSD because it would only have the potential to 2
emit 90 tons per year of S02.
If an emitting facility is "major" for one pollutant, the BACT requirements
also apply to "each pollutant subject to regulation" under the Act. [Sec-
?" J™(a)( M F°r examPLe' a sulfurlc acid plant with the potential to
emit 200 tons of S02 per year with controls operating is subject to PSD
for S02 (assuming the other elements of applicability set forth below
are are also present). In addition, the plant is also subject to the BACT
requirement for each criteria pollutant, any NESHAP pollutants, and any
pollutant designated under Section lll(d) that it emits in significant
amounts.
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Chapter One Overview
Potential To Emit LOO Tons Per Year: The 27 Source Categories
• Fossil fuel-fired steam electric plants of more than 250 million
Btu's per hour of 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 plants
• Chemical process plants
• Fossil fuel boilers of more than 250 Btu's per hour heat input
• Petroleum storage and transfer facilities with a capacity greater
than 300,000 barrels
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Chapter One Overview
• Taconlce ore processing plants
• Charcoal production plants
"Commenced" Is defined at 40 C.F.R. Section 52.2l(b)(9) as meaning that the
owner or operator has:
• Obtained all necessary preconstructlon approvals and permits; and
• Begun or caused to begin, a continuous program of actual on-site
construction of the source to be completed within a reasonable
time or, has entered Into binding agreements or contractual obliga-
tions to undertake a continuous program of actual on-slte construc-
tion of the source within a reasonable time. The binding agree-
ments or contractual obligations must be such that cancellation or
"modification" cannot be done without substantial loss to the owner
or operator.
"Construction" is defined at 40 C.F.R. Section 52.21(b)(8) as meaning "any
physical change or change in the method of operation (including fabrica-
tion, erection, Installation, demolition, or modification of an emissions
unit) that would result In a change in actual emissions." Construction
also Includes "modifications" as defined In the regulations at 40 C.F.R.
Section 52.21(b).
"After" August 7, 1977, Is the established cut-off date for PSD applicabil-
ity because that is the effective date of the 1977 Amendments to the Clean
Air Act. In the case of a facility on which construction was commenced
after June 1, 1975, and prior to the enactment of the 1977 Amendments, the
PSD regulations In effect prior to the 1977 Amendments apply. [Section
I62(b).]
Finally, a PSD permit Is required of owners or operators of major emitting
facilities whose construction or modification commenced after August 7,
1977, in an area to which PSD applies. PSD applies in areas designated
under Sections L07(d)(l)(D) and 107(d)(l)(E), the "unclasslfiable" and
attainment" areas, respectively.
Part D: Plan Requirements for Nonattatnment Areas (Sections 171-178)
An AQCR is a "nonattalnment area" if, for any pollutant, monitored data or
Sff/Jl1"1"*7 modelin8 8how8 concentrations of the pollutant In excess of any
NAAQS. Nonattainment area" also Includes any area designated under Sec-
tion 107(d)(l)(A) through (C). Part D evinces the congressional Intent
that these dirty air areas be improved to achieve the NAAQS. The 1977
Amendments required that SIPs accomplish the cleanup "as expeditiously as
practicable, but, in the case of national primary ambient air quality
standards, not later than December 31, 1982." [Section 172(a)(l).l The
attainment date for photochemical oxidants and carbon monoxide can be as
late as December 31, 1987, for those areas where the state demonstrated
CAA Co-pllaace/Baforce.ent ^U Guidance Haaual 1986
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Chapter One Overview
prior to December 31, 1982, that attainment by that date was not possible
"despite the implementation of all reasonably available measures."
[Section 172(b).]
The following provisions are basic elements of a fully approvable Part D
SIP:
• As in the case of all other SIP requirements, the state must adopt
the Part 0 regulations after reasonable notice and public hearing.
If the state fails to do so, the Administrator may invoke Section
110(c) and promulgate the Part D regulations for the state;
• The plan must provide for the implementation of all reasonably
available control measures as expedltiously as practicable;
• In the Interim before attainment, the plan must require "reasonable
further progress," which is defined as "annual incremental reduc-
tions in emissions * * * (including substantial reductions in the
early years following approval [of the Part D plan] and regular
reductions thereafter) which are sufficient to provide for attain-
ment [by December 31, 1982, or December 31, 1987, as applicable]."
The interim requirements include adoption of reasonably available
control technology (RACT) on existing sources. RACT is defined at
40 C.F.R. Section 51.1(o);
• The plan must Include a comprehensive, accurate, and current inven-
tory of actual emissions from all sources;
• The plan must quantify the emissions that will be allowed, if any,
from new and modified sources;
• The plan must establish a preconstruction review and permit
program;
• Administration of the plan must be funded and staffed;
• The plan must contain emission limitations, schedules of compli- ,
ance, and such other measures aa may be necessary to carry out the
plan's requirements. The terms "emission limitations" and "sched-
ule of compliance" are defined at Sections 302(k) and 302(p),
respectively;
• The plan must evidence the planning procedures required by Section
174. In addition, the plan must Include an analysis of air qual-
ity, health, welfare, economic, energy, and social effects of the
plan; alternatives to the plan; and a summary of public comments on
the analysis;
• The plan must Include written evidence of the existence of legal
authority in state law to carry out the plan; and,
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Chapter One Overview
• For areas where Che attainment date for carbon monoxide and
photochemical oxldants is December 31, 1987, the plan must
establish a program to analyze alternative siting of new sources, a
specific schedule to Implement motor vehicle emission inspections,
and an identification of other necessary measures to achieve
attainment.
Part D Permits
Any "major stationary source," as the term is defined by Section 302(j),
proposed to be constructed or modified in a nonattainroent area must obtain
a construction and operation permit meeting the requirements of Section
173. A new source/nonattalnment permit may be issued only if all of the
following conditions are met:
• At the time the proposed new source is to begin operating, the
total allowable emissions from all existing sources in the area
Including the proposed source will be "sufficiently less" than
total emissions from existing sources allowed under the applicable
plan prior to the permit application. (The term "sufficiently
less" means emission reductions that, when considered together with
other plan provisions, would constitute "reasonable further
progress.")
• Emissions from the proposed new or modified source will not cause
or contribute to concentrations in excess of the allowable concen-
tration of the pollutant permitted of new and modified sources
under the Part D plan.
• The proposed source Is subject to the "lowest achievable emission
rate" (LAER). LAER Is defined at 40 C.F.R. Section 51.18(J)-
(xiii). (Section 178 requires the Administrator to publish guid-
ance documents to assist states In implementing LAER requirements.)
• The owner or operator of the proposed source demonstrates that all
major sources owned or operated by him or her in the state are In
compliance with all applicable emission limitations and standards,
or on a compliance schedule to do so.
• The Part 0 plan is being carried out.
• The emission reductions required as a precondition to the issuance
of the permit are legally binding.
Unlike the case of Part C permits, only states issue the Part D permits.
Technically, if the Administrator invoked Section 110(c) and subsequently
promulgated the Part D plan for a state, EPA could be the permitting autho-
rity. However, EPA has not taken this approach to deficient Part D SIPs.
Instead, EPA has taken the position that the construction ban on new and
modified sources contemplated by Section 110(a)(2)(I) operates.
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Chapter One Overview
Other Elements of Part D
For carboa monoxide and photochemical oxidant nonaCtatnment areas, Section
174 requires that state and local government agencies divide up the
responsibilities for planning and enforcing measures to achieve attain-
ment. The preparation of the Part D plan for these areas must be coordin-
ated with the continuing, cooperative, and comprehensive transportation
planning process contemplated by 23 U.S.C. Section 134 and the air quality
maintenance planning process required by Section 110 of the Clean Air Act.
Section 175 authorizes grants to assist organizations responsible for the
planning process.
Baa on Federal Grants and Assistance
Finally, Section 176 prohibits the availability of any grants or other fed-
eral assistance, except for safety, mass transit, or air quality Improve-
ment transportation projects if:
• Any NAAQS is not being met In an area where transportation controls
are required for attainment; and
• The state has not submitted a plan that meets all of the require-
ments of Part D.
Definitions of "Major Stationary Source"
Persons proposing to construct a new major stationary source or to modify
an existing major stationary source must obtain a permit prior to
construction or modification, and a permit may be granted only to major
sources that commit to use advanced technology to achieve the lowest
achievable emission rate in nonattainment areas, or the best available
control technology under the PSD requirements. Because these requirements
apply only to major stationary sources, there has been extensive litigation
over the definition of "major stationary source."
Section 111, which requires EPA to establish standards of performance for
certain categories of new sources, contains this definition: "The term
'stationary source* means any building, structure, facility, or
Installation which emits or may emit any air pollutant." Because Section
lll(a) prefaces the definitions with the phrase, "For purposes of this
section," it can be argued that its definition may not apply under Part C
or Part D. The general definitions section contains this definition at
302(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....
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Chapter One Overview
Because Part D does riot provide another definition, for the purpose of Part
D a "major stationary source" Is a facility or source that has the
potential to emit 100 tons or more. Part C, Section 169, defines the term,
"major emitting facility," to mean certain listed categories of stationary
sources that "emit, or have the potential to emit, one hundred tons per
year or more of any air pollutant" and "any other source with the potential
to emit two hundred and fifty tons per year or more of any air pollutant."
Therefore, determining whether a new Industrial project or piece of
equipment Is a "major stationary source" that Is subject to new source
review requirements may depend first on whether the construction or
modification is occurring in an attainment area or a nonattalnment area,
because different threshold amounts of pollutant may trigger the permit
requirement.
Emissions Trading: "Bubbles and Banking"
When the process or equipment that is emitting pollutants Is part of an
Industrial plant, the question arises whether each piece of equipment or
process in the plant is a separate stationary source or whether all equip-
ment or processes taken together are one stationary source. The definition
found in Section lll(a) seems to permit a good deal of flexibility. EPA
has tried to use this flexibility to encourage plant managers to bring
industrial plants Into compliance by reducing pollutant emissions through-
out an industrial plant with the most cost-effective control programs.
In order to achieve and maintain the NAAQS, states establish emission
limitations for individual sources (called "source-specific standards") and
uniform emission limitations for categories of sources. The cost of emis-
sions controls varies widely depending on the type of Industrial process,
Its age, and its physical configuration or design. In some cases, a
relatively low cost pollution control program can yield as great or greater
emissions reductions as a higher priced pollution control program. In
fact, pollution control costs for adjacent processes can vary by as much as
100 to 1 while yielding the same air quality benefits.
In recognition of the cost disparities associated with equivalent emission
reductions, EPA issued the "Emissions Trading Policy" (44 Fed. Reg. 71,779,
December 11, 1979, as superseded by 47 Fed. Reg. 15,076, April 7, 1982,
which was superceded by 51 Fed. Reg. 43814, December 5, 1986). The policy
consists of the "bubble policy" and the "banking policy."
The "bubble policy" provides sources and states with the flexibility to
implement alternative control strategies to those currently mandated by the
SIP. The "bubble" allows plant managers to construct an imaginary dome
(hence the term "bubble") over the entire plant and to rearrange control
requirements, decreasing controls where control costs are high in exchange
for compensating increased controls where costs are low. An offshoot of
such a policy, called "netting out," allows sources to avoid the applica-
tion of certain requirements in certain situations if the modification of a
facility in total does not result in higher emissions.
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Chapter One Overview
A firm may Imple.-nenc the bubble at Its facility by applying to the state
for a revision to the SIP. As In the case of any SIP revision, the state
must submit It to EPA for approval before It Is legally effective. Alter-
natively, a state may have a "generic rule" approved by EPA that permits
certain types of bubbles for certain classes of pollutants to be effective
without case-by-case EPA approval.
Generally speaking, a bubble must satisfy the following requirements:
• The emissions reductions under the alternative approach must be
quantifiable and enforceable, and the Impact of the trade on ambi-
ent air quality must be shown to be equivalent to existing require-
ments. Depending on differences In location, method of discharge,
and other considerations, monitoring and/or modeling may sometimes
be required to establish this equivalence.
• The surplus reductions used In a bubble must be sufficiently reli-
able and measurable to be permanent. Strategies incorporating
uncertain control techniques or reductions may need a greater than
1-to-l ratio of reduction to relaxation to provide this certainty.
• Bubbles must Involve comparable pollutants (I.e., carbon monoxide
reductions cannot be traded against partlculate matter Increases).
In Alabama Power, et al. v. Coatle, 636 F.2d 323 (D.C. Clr. 1979), the
court held that EPA could employ the bubble concept to the definition of
major source in PSD areas. The court held that a source could avoid
application of the PSD requirements if any Increase in emissions from a
modification of the source was offset by a decrease in emissions elsewhere
at the source. Earlier, the same court had held, in ASARCO, Inc. v. EPA,
578 P.2d 319 (D.C. Cir. 1978), that this sort of netting out could not be
used by sources that would otherwise be subject to NSPS requirements.
Finally, In Chevron USA v. NRDC. Inc.. 104 S. Ct. 2778 (1984), the Supreme
Court upheld EPA's proposal that, for nonattainment areas, the word
"source" could mean a grouping of smaller facilities. Such a definition
could affect the result of the ASARCO decision.
"Banking" is an expansion of the bubble policy that allows bubbles between
different plants. Under the banking policy, a source that reduces its
emissions below applicable emissions limitations obtains an emission reduc-
tion credit (ERC) that is registered or "banked" In a central registry.
The stored ERC is available for subsequent use by the holder for a bubble
at Its own plant, to establish an offset to acquire a Part D permit, or to
sell to another firm that may use the ERC for similar purposes.
Standards of Performance for New Stationary Sources (Section 111)
The New Source Performance Standards (NSPS) is a regulatory program
distinct from the regulatory programs established by SIPs. Whereas SIP
requirements vary from state to state, the NSPS apply uniformly from state
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Chapter One Over view
to state, regardless of the air quality associated with the Location. The
NSPS is a federal program administered by EPA, although most states have
been delegated EPA's authority.
The designers of the 1970 Clean Air Act Amendments recognized several
factors that underlie the NSPS program. First, Congress recognized that
pollution control is typically less costly and more efficient if the
controls are part of original facility designs rather than retrofitted to
existing facilities. As older Industrial facilities are phased out and
replaced by new facilities, the more efficient control technologies
associated with the new growth would provide a net air quality benefit over
time. Of course, gaining this net air quality benefit is the ultimate goal
of the Clean Air Act.
Congress also recognized that efficient air pollution controls are costly
items, even when designed into the original facility. Consequently,
industries would be tempted to locate in areas that require the least
costly pollution investments. Each state would have an incentive to
establish less stringent requirements than competing states to be more
attractive as a location for new industry.
Tackling both problems at once, Congress required uniform "technology-
based" standards establishing emission limitations reflecting the best
technological system of emission reduction adequately demonstrated. "Best
demonstrated technology" provides the net air quality benefit eventually,
and uniformity avoids competition for new industries among states.
Promulgation of NSPS
The NSPS are all codified at 40 C.F.R. Part 60. NSPS are promulgated in
accordance with the rulemaking provisions of Section 307(d). Essentially
the rulemaking is of the "notice and comment" variety wherein the Agency:
• Publishes notice of proposed rulemaking (including a statement of
basis and purpose) and establishes a public docket;
• Receives written comments from the public;
• Receives oral testimony from the public;
• Provides a 30-day period following the close of the basic public
comment period to receive rebuttal or supplementary information;
and
• Promulgates the rule on the basis of information or data contained
in the public docket only.
The standards "reflect the degree of emission reduction achievable through
application of the best technological system of continuous emission reduc-
tion which (taking into consideration the cost of achieving such emission
reduction, any nonalr quality health and environmental impact and energy
CAA Co«pliance/Kaforce»ent1^218Guidance Manual 1986
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Chapter One Overview
requirements) the Administrator determines has been adequately demon-
strated." [Section lll(a)(l).] For fossil fuel-fired stationary sources
governed by 40 C.F.R. Part 60, Subpart Da, the standards must require a
"percentage reduction" in emissions achievable through application of the
best technological system of emission reduction.
The NSPS is usually expressed as a mass emission limitation (e.g., 1.2
pounds of S02 per 1 million Btu heat input). Particulate matter (which
is visible to the naked eye) may also be regulated by an opacity standard.
Opacity, or visible emissions (VE), standards limit the amount of light
that can be obscured by a plume of smoke (e.g., the standard may prohibit
any emissions in excess of 20 percent average opacity). See 40 C.F.R. Part
60, Appendix A, Reference Method 9, which establishes how opacity is
determined.
Applicability Determinations
EPA regulations at 40 C.F.R. Section 60.5 provide that a source owner or
operator may request a determination from the Administrator of whether con-
struction or modification of a facility triggers the applicability of the
NSPS. The following analysis is applied:
• Was "construction," "reconstruction," or "modification" of
• the "affected facility"
• "commenced"
• after the "applicability date" of
• the applicable "standard of performance"?
If the answer to each point is affirmative, then the source is "new" and
subject to the NSPS.
Definitions
Each phrase of the applicability analysis is defined either in the statute
or the regulations at 40 C.F.R. Part 60. Each is a term of art and may
carry a meaning that one would not Intuitively expect.
• "Construction" means fabrication, erection, or installation of an
affected facility. [40 C.F.R. §60.2.]
• "Reconstruction" means the replacement of components of an existing
facility to such an extent that:
— The fixed capital cost of the new components exceeds 50 percent
of the fixed capital cost that would be required to construct a
comparable entirely new facility, and
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Chapter One Overview
— It Is technologically and economically feasible to meet the
applicable standards set forth In Part 60. [40 C.F.R.
§60.15(b).]
• "Modification" means any physical change In, or change In the
method of operation of, an existing facility that Increases the
amount of any air pollutant (to which a standard applies) emitted
Into the atmosphere by that facility or that results in the
emission of any air pollutant (to which a standard applies) into
the atmosphere not previously emitted. [40 C.F.R. §60.2.]
Sections 60.14(e) and 60.l4(f) of 40 C.F.R. specifically exempt
certain "changes" from being considered modifications.
• "Affected facility" means any apparatus to which a standard
applies. [40 C.F.R. §60.2.] In order to determine which
"apparatus" Is involved, one must refer to each specific subpart.
For example, Subpart D applies to fossil fuel-fired steam-
generating units of certain size. That term is further defined as
meaning a "furnace or boiler." Thus, if a power plant owner
inquired of the Agency whether a change in the location or size of
Its coal material-handling equipment subjected the plant to Subpart
D, the answer would be negative because Subpart D does not apply to
the material-handling "apparatus." However, material-handling
equipment may be apparatus to which a standard applies under a
different subpart such as Subpart Y, which regulates coal
preparation plants. [Compare 40 C.F.R. §§60:40 and 60.41 with 40
C.F.R. §60.250.]
• "Commenced" means that an owner or operator has undertaken a con-
tinuous program of construction or modification or that an owner or
operator has entered Into a contractual obligation to undertake and
complete, within a reasonable time, a continuous program of con-
struction or modification. [40 C.F.R. §60.2.]
• The "applicability date" is defined by the statute as "the publica-
tion of regulations (or, if earlier, proposed regulations) pre-
scribing a standard of performance * * * applicable to the source."
[Section lll(a)(2).] One can determine the "effective date" for
each standard simply by referring to the appropriate subpart. The
term is important because any construction, etc., that had begun
prior to that date designates the source as an "existing facility"
and thus, not regulated by NSPS.
• "Standard of performance" means a standard that establishes allow-
able emission limitations for any pollutant emitted from the reg-
ulated facility. [Section lll(a)(l).J It also means "a require-
ment of continuous emission reduction, including any requirement
relating to the operation or maintenance of a source to assure
continuous emission reduction. [Section 302(1).] Construction or
modification of an affected facility that commences after the
effective date of the NSPS will not subject the facility to the
NSPS unless it causes an increase in an air pollutant for which the
NSPS has established a standard of performance. For example, a
CAA Co«pllance/Koforce«ent1^220Guidance Manual 1986
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Chapter One
Overview
modification to a steam generator that Increases emissions of
carbon monoxide would not alone subject the plant to Subpart D
because that subpart regulates only partlculates, S02, and NOx-
As of June I, 1986, EPA had promulgated NSPSs for the following 56 source
categories:
Category
Fossil Fuel-Fired Steam Generators
Incinerators
Portland Cement Plants
Nitric Acid Plants
Sulfurlc Acid Plants
Asphalt Concrete Plants
Petroleum Refineries
Petroleum Storage Vessels
Secondary Lead Smelters
Secondary Brass and Bronze Ingot
Production Plants
Basic Oxygen Furnaces (Iron and Steel)
Sewage Treatment Plants
Primary Aluminum Reduction Plants
Wet-Process Phosphoric Acid Plants
Superphosphorlc Acid Plants
Olammonium Phosphate Plants
Triple Superphosphate Plants
Granular Triple Superphosphate Storage Facilities
Electric Arc Furnaces
Primary Copper Smelters
Primary Zinc Smelters
Primary Lead Smelters
Coal Preparation Plants
Ferroalloy Production Facilities
Kraft Pulp Mills
Grain Elevators
Lime Manufacturing Plants
Utility Steam Generators
Stationary Gas Turbines
Petroleum Storage Vessels
Glass Manufacturing Plants
Auto and Light-Duty Truck Surface Coating
Ammonium Sulfate Manufacturing
Lead Acid Battery Manufacturing
Phosphate Rock Plants
Metal Furniture Surface Coating
Graphic Arts: Rotogravure Printing
Applicability Date
August 17, 1971
August 17, 1971
August 17, 1971
August 17, 1971
August 17, 1971
June 11, 1973
June 11, 1973 or
October 4, 1976
June 11, 1973 or
March 8, 1974
and prior to
May 19, 1978
June 11, 1973
June 11, 1973
June 11, 1973
June 11, 1973
October 23, 1974
October 22, 1974
October 22, 1974
October 22, 1974
October 22, 1974
October 22, 1974
October 21, 1974
October 16, 1974
October 16, 1974
October 16, 1974
October 24, 1974
October 21, 1974
September 24, 1976
January 13, 1977
May 3, 1977
September 18, 1978
October 3, 1977
May 18, 1978
June 15, 1979
October 5, 1979
February 4, 1980
January 14, 1980
September 21, 1979
November 28, 1980
October 28, 1980
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Guidance Manual 1986
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Surface Coat lag of Large Appliances
Metal Coil Surface Coating
Asphalt Roofing Manufacture
Beverage Can Surface Coating
Bulk Gasoline Terminals
Equipment Leaks of VOC in the Synthetic
Organic Chemical Manufacturing
Pressure-Sensitive Tapes and Labels
Metallic Mineral Processing Plants
Flexible Vinyl and Eurethane Coating
and Printing
Equipment Leaks of VOC in Petroleum
Refineries
Synthetic Fiber Production Facilities
Petroleum Dry Cleaners
Equipment Leaks of VOC from Onshore
Natural Gas Processing Plants
Wool Fiberglass Insulation
Manufacturing Plants
Non-Metallic Mineral Processing
Plants
December 24, 1980
January 5, 1981
November 18, 1980
or May 26, 1981
November 26, 1980
December 17, 1980
January 5, 1981
December 30, 1980
August 24, 1982
January 18, 1983
January 4, 1983
November 23, 1982
December 14, 1982
January 20, 1984
February 7, 1984
August 1, 1985
Performance Tests
The regulation at 40 C.F.R. Section 60.11(a) provides as follows:
Compliance with standards in this part, other than
opacity standards, shall be determined only by
performance tests established by §60.8, unless
otherwise specified in the applicable standard.
Section 60.8 requires that, within 60 days after achieving the maximum pro-
duction rate at which the affected facility will operate but not later than
180 days after initial startup of such facility, the owner or operator must
conduct a performance test and furnish to the Administrator a written
result report. The Administrator may also require performance tests at any
time thereafter.
The purpose of the initial performance test is to determine whether the
source is operating la compliance with the NSPS. The 60-days/180-days rule
does not establish a grace period, per se, for noncompllance. [See 40
C.F.R. §60.11(d).]
Determination of Compliance
EPA can determine whether a source is in compliance with the NSPS emission
limitation only In accordance with the appropriate performance test codi-
fied In Appendix A to Part 60. [40 C.P.R. §60.11(a).] Performance tests
are to be conducted under conditions that are representative of the
performance of the affected facility. Periods of startup, shutdown, and
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Chapter One Overview
malfunction are not Co be considered representative for the purpose of
performance tests and emissions in excess of the emission limit in the
applicable standard during periods of startup, shutdown, or malfunction are
not generally a violation of the emissions standards. [40 C.F.R.
§60.8(c).J EPA has generally taken the position that performance tests
shall be conducted during operation of a facility at or near maximum design
capacity. EPA cannot conduct frequent performance tests due to the large
number of sources subject to NSPS and the cost and time associated with
performance tests.
If a new source that is subject to an NSPS has never conducted a
performance test, EPA or the state agency should issue an order under
Section 114 requiring the source to do so. When a new source that is
subject to the NSPS has not installed the necessary pollution control
equipment and EPA or a state agency wishes to bring an enforcement action
under Section 113 or Section 120 against the owner, EPA or the state agency
should first issue an order to the owner under Section 114 to conduct the
Initial performance test required by Section 60.8. This is because
performance test results are the only admissible evidence of a violation of
an NSPS emission limit. If a new source owner refuses to conduct the
required performance test, EPA can bring a civil action under Section 113
for a violation of a Section 114 order.
In United States v. Segale, No. CR84-73T (W.D. Wash. Mar. 11, 1985), a
district court dismissed a criminal indictment for violation of the NSPS
partlculate standard for new asphalt concrete plants, 40 C.F.R. §60.92,
because the indictment did not allege that the performance test required by
Section 60.8 had been conducted. The indictment was based on partlculate
emissions that violated the 20 percent opacity standard. The court
construed Section 60.92(a) as requiring a performance test as a
prerequisite of a violation. Section 60.92(a) states the following:
On or after the date on which the performance test
required to be conducted by §60.8 is completed, no
owner or operator subject to the provisions of this
subpart shall discharge or cause the discharge into
the atmosphere from any affected facility any gases
which:...
(2) Exhibit 20 percent opacity, or greater....
To fill in the gaps resulting from the performance test rules, 40 C.F.R.
Section 60.il(d) requires:
At all times, including periods of startup, shutdown,
and malfunction, owners and operators shall, to the
extent practicable, maintain and operate any affected
facility including associated air pollution control
equipment in a manner consistent with good air
pollution control practice for minimizing emissions.
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Chapter One Overview
Determination of whether operation and maintenance (0/M) procedures are
acceptable may be based on information available to the Administrator that
may Include, at a minimum, monitoring results, opacity observations, review
of 0/M procedures, and inspection of the source. [40 C.F.R. §60.11(d).]
Other NSPS Program Elements
Notification and Recordkeeping (40 C.F.R. §60.7). Owners and operators of
NSPS sources are required to furnish written notification (within certain
time periods and with certain exceptions) of:
• The date construction or reconstruction of an affected facility is
commenced;
• The date of anticipated initial startup;
• The date of actual Initial startup;
• Any physical or operational change to an existing facility that may
increase the emission rate of any pollutant to which a standard
applies; and
• The date upon which the demonstration of the continuous emission
monitor (GEM) will be commenced.
Owners and operators must maintain records of the occurrence and duration
of any startup, shutdown, or malfunction in the operation of any affected
facility, any malfunction of the GEM, and the period during which the sys-
tem or device is inoperative. An owner or operator must maintain for at
least two years all measurements (GEM and performance test), all GEM evalu-
ations, calibrations, adjustments, and maintenance, and such other informa-
tion as may be required by regulation. Owners and operators required to
install GEM must submit quarterly excess emission reports whether or not
there have been any excess emissions during that quarter.
Monitoring. Section 114 authorizes the Agency to require continuous emis-
sion monitoring (GEM). Many NSPSs require the Installation, calibration,
maintenance, and operation of GEM equipment systems. "Continuous monitor-
Ing system" is defined as meaning the "total equipment, required under the
emission monitoring sections in applicable subparts, used to sample and
condition (If applicable), to analyze, and to provide a permanent record of
emissions or process parameters." [40 C.P.R. §60.2.] Prior to the perfor-
mance tests required by 40 C.F.R. Section 60.8, the monitors must be
installed and operational [40 C.P.R. §60.13(b)], such that representative
measurements of emissions or process parameters are obtained during the
initial performance tests [40 C.F.R. §§60.13(c) and 60.13(f)].
Except for system breakdowns, repairs, calibration checks, and zero and
span adjustments, the GEM must be In continuous operation and meet the
minimum frequency of operation requirements codified at 40 C.F.R. Section
60.13(e). Owners and operators must evaluate the performance of the GEM
CAA Compliance/Enforcement1-224Guidance Manual 1986
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Chapter One Overview
frequently [see 40 C.F.R. §60.13(c)], and adjust the calibration daily or
at shorter intervals. [40 C.F.R. 60.13(d).J Technical specifications are
codified at 40 C.F.R. Part 60, Subpart B.
It is important to be aware of whether the CEM requirement in a particular
subpart is the designated compliance test method or is only a means of
monitoring the operation and maintenance of a source. If the CEM is the
designated compliance test method, the data can be used as evidence in a
court action to enforce the emission limitation. If the CEM is not the
designated compliance test method, the data cannot be used as evidence of a
violation of the emission limitation but may be evidence of a violation of
40 C.F.R. Section 60.11(d). CEMs are the compliance test method in
Subparts Da (covering new electric steam generators), P, Q, and R (covering
new nonferrous smelters).
Section 111 and "Bubbles." In 1978, the D.C. Circuit stated that (with
regard to NSPS) "any version of the bubble concept is Incompatible with the
language of the Act and contrary to its purpose...." Asarco, Inc. v. EPA,
578 F.2d 319, 329 (D.C. Cir. 1978), (emphasis provided by the court). In
Asarco, EPA had promulgated a regulation defining "stationary source" as:
Any building, structure, facility or installation which
emits or may emit any air pollutant and which contains
any one or combination of the following: (1) Affected
facilities (2) Existing facilities. (3) Facilities of the
type for which no standards have been promulgated in this
part. 40 C.F.R. §60.2(d)(1976).
The court pointed out that the regulations "instead of limiting the defini-
tion of 'stationary source' to one 'facility' as the statute does, make it
cover 'any one or combination of facilities." 578 F. 2d 319, 324 (D.C.
Cir. 1978). Since Section lll(a)(3) defines a source as "any building,
structure, facility, or installation which emits or may emit any air
pollutant" as distinguished from any one or combination of facilities such
as plant, the court rejected application of a bubble concept to NSPS.
However, in a footnote, the court noted that it accepted EPA's definition
of "facility" as "any apparatus to which a standard of performance is
specifically applicable." Importantly, the court noted:
This definition is clearly designed to designate as
"facilities" those units of equipment — be they
individual machines, combinations of machines, or even
entire plants — that the Agency finds to be
appropriate units for separate emission standards....
In designating what will constitute a facility in each
particular industrial context, EPA is guided by a reas-
oned application of the terms of the statute it is
charged to enforce, not by an abstract 'dictionary1
definition. This court would not remove this appropri-
ate exercise of the Agency's discretion. 578 F.2d 319,
324 n. 17 (D.C. Cir. 1978).
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Chapter One
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Judicial Review of NSPS Regulations and Applicability Determinations.
Section 307(b)(l) provides for review of a newly promulgated NSPS
exclusively in the United States Court of Appeals for the District of
Columbia Circuit. (Section 307(b) establishes the D.C. Circuit as the
exclusive jurisdiction for challenge to any nationally applicable Clean Air
Act regulation.) Challenges must be filed with the court within 60 days
from the date of publication of the rule in the Federal Register. After
the 60 days expire, no challenge to the NSPS Itself is permissible, unless
the challenge is based upon grounds arising solely after the 60-day period
expired. In such a case, the 60-day period begins to run from the date
such grounds arise.
The 60-day limitation on challenges to newly promulgated NSPS regulations
Is Important. If a source falls to comply with the NSPS, EPA may seek
enforcement of the NSPS In the federal district court. The 60-day
limitation operates to preclude the source from challenging the basis for
the NSPS during the enforcement action. In other words, the court In the
enforcement action will focus on the question of whether or not the source
is violating the standard, but will not entertain any questions pertaining
to how the standard was established. [See Section 307(b)(2).J
Applicability determinations, which are source specific as opposed to
nationally applicable, are reviewable In the United States Court of Appeals
for the Circuit in which the source is located. That point was settled by
the Supreme Court in the case of Harrison v. PPG Industries. 446 U. S. 578
(1980). The Supreme Court ruled that the applicability determination in
that case was a "final agency action" and, therefore, was reviewable pur-
suant to Section 307(b).
That ruling is important because the 60-day limitation on filing challenges
consequently applies to applicability determinations as well as to the pro
mulgation of the nationally applicable NSPS. Thus, the source also cannot
challenge the applicability of the standard when EPA seeks to enforce it
provided that an applicability determination had been made and published'in
the Federal Register.
In Caterpillar Tractor Company v. Adamkus. et al.. No. 83-1083 (C.D. 111.,
May 23, 1985), Caterpillar sought a declaratory Judgment that the NSPS for
fossil-fuel-fired steam generators did not apply to two of its new
blolers. EPA filed a counterclaim to enforce the NSPS and obtained a
summary Judgment that the company had violated the standard. The NSPS
applies to boilers that have a heat Input capacity of more than 250 million
Btu per hour. Caterpillar argued that, although its boilers had a design
capacity of 294 million Btu per hour, the NSPS should apply only If Its
actual operating levels exceeded 250 million Btu per hour. The district
court agreed with EPA's argument that the manufacturer-rated design
operating capacity determines whether the standard applies. Using the
actual operating rate to determine whether the standard applied would lead
to the odd result of having the source regulated only some of the time.
Caterpillar also argued that performance tests which it had conducted while
operating at maximum capacity under an EPA-prescribed test protocol were
not valid evidence of violations because operating at maximum capacity was
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Chapter One Overview
not "representative" of Its normal operating conditions. The court held
that these performance tests, which showed excess emissions, did establish
violations.
Innovative Technology Waivers. Section 11L(J) provides for the issuance of
one or more waivers from NSPS requirements in order to encourage the uses
of innovative technological systems or systems of continuous emissions
reduction. An innovative technology waiver may be issued after Federal
Register notice and opportunity for public hearing. The applicant must
demonstrate the following points:
1. The proposed system has not been adequately demonstrated;
2. The proposed system will operate effectively, and there is a sub-
stantial likelihood that such system will achieve greater contin-
uous emission reduction than that required to be achieved under
the NSPS that would otherwise apply, or achieve at least an equi-
valent reduction at lower cost in terms of energy, economic, or
nonair quality environmental Impact;
3. The proposed source will not cause or contribute to an unreason-
able risk to public health, welfare, or safety in its operation,
function, or malfunction; and
4. The number of waivers will not be more than is necessary to ascer-
tain whether or not such system will achieve the conditions in
points 2 and 3 above.
An innovative technology waiver exempts the new source from the applicable
emission standards only for a limited period of time to allow the design
and installation of the innovative system. It must be terminated whenever
the Administrator determines that the innovative technological system that
has been Installed has failed to achieve continuous emission reductions
equivalent to the emission standards; and it may not extend beyond the date
seven years after the waiver was granted or four years after the new source
or affected portion thereof commences operation, whichever is earlier.
When an Innovative technology waiver is terminated, the Administrator must
grant an extension of time for compliance that is the minimum period
necessary for the source to be brought into compliance with the standard
using demonstrated technology (no more than three additional years).
Technology-baaed Regulation of Existing Sources. Section ill(d) authorizes
the Administrator to promulgate regulations requiring states to establish
technology-based standards of performance for existing sources of
"designated pollutants." In 1975, the Administrator promulgated regula-
tions that established a procedure under which states shall submit their
plans for standards of performance for existing sources of designated
pollutants. [40 C.F.R. Part 60, Subpart B.] "Designated pollutants" are
pollutants for which standards of performance have been established for new
sources but for which air quality criteria have not been issued under
Section 108 and for which there are no plans to issue air quality criteria
or to publish emission limits under Section 112 (pertaining to hazardous
air pollutants).
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Chapter One Overview
These regulations provide chat, for promulgation of an NSPS which Includes
a standard of performance for a designated pollutant, the Administrator
will publish, after notice and comment, a final guideline document that
will contain an emission guideline and information pertinent to the
development of state plans for control of the designated pollutant. Within
nine months after the final guideline document has been published, each
state Is to adopt and submit to the Administrator a state plan for the
control of the designated pollutant from the existing sources in that
state. EPA has published final emission guidelines for only one
designated pollutant. In 1977, EPA published an emission guideline for
sulfuric acid mist from sulfuric acid production units. F40 C.F.R.
Sections 60.32 through 60.34.]
National Emission Standards for Hazardous Air Pollutants (Section 112)
The NAAQS discussed previously are aimed at pollutants that are known to
affect human health and welfare adversely when ambient concentrations are
excessive. Some pollutants, however, are more dangerous than the criteria
pollutants because even in relatively small concentrations they can be
"anticipated to result in an increase in mortality or an increase in seri-
ous Irreversible, or incapacitating reversible, illness." [Section
The 1970 Clean Air Amendments, therefore, required that the Administrator
first list hazardous air pollutants and then promulgate emission standards
governing their release into the atmosphere. In contrast to the primary
NAAQS, which are ambient standards established at levels that provide an
"adequate" margin of safety to protect the public health, the NESHAP are
emission standards established at levels that provide an "ample" margin of
safety to protect the public from the harmful consequences of the
pollutant.
EPA has established NESHAPs for the following pollutants:
• Radon-222 emissions from underground uranium mines (40 C.F.R. Part
61, Subpart B)
• Beryllium emissions from
- Beryllium processing facilities (40 C.F.R. Part 61, Subpart C),
- Rocket Motor Test Sites (40 C.F.R. Part 61, Subpart D)
• Mercury (40 C.F.R. Part 61, Subpart E)
• Vinyl Chloride (40 C.F.R. Part 61, Subpart F)
• Radlonuclide emissions from
- Department of Energy facilities (40 C.F.R. Part 61, Subpart H)
CAA (kmpliance/BQ£orce.eat1^228Guidance Manual 1986
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Chapter One Overview
- Facilities licensed by the Nuclear Regulatory Commission and
non-DOE federal facilities (40 C.F.R. Part 61, Subpart I)
- Elemental phosphorous plants (40 C.F.R. Part 61, Subpart K)
• Benzene fugitive emissions (40 C.F.R. Part 61, Subpart J)
• Asbestos (40 C.F.R. Part 61, Subpart M)
• Inorganic arsenic emissions from
- Glass manufacturing plants (40 C.F.R. Part 61, Subpart N)
- Primary copper smelters (40 C.F.R. Part 61, Subpart 0), and
- Arsenic trioxlde and metallic arsenic production facilities (40
C.F.R. Part 61, Subpart P)
• Volatile hazardous air pollutants (fugitive emissions) (40 C.F.R.
Part 61, Subpart V)
Effective Date. A NESHAP is effective upon promulgation.
Applicability of NESHAPa to Individual Sources
NESHAPs apply to "new," "modified," and "existing sources."
• New and Modified Sources. Section 112(c)(l)(A) prohibits any per-
son from constructing a new source or modifying an existing source
unless the Administrator finds that the source, if properly oper-
ated, will not cause emissions in violation of the standard. In
order to obtain the Administrator's approval to construct or modify
a source to which a standard is applicable, the source owner or
operator is required to submit an application prior to commencement
of construction or modification. [40 C.F.R. §61.07.] The Admini-
strator has 60 days to approve or deny the application. [40
C.F.R. §61.08.] If the Administrator intends to deny the applica-
tion, the notification to the source must Include the information
and findings underlying the decision and an invitation for the
source to present additional information or arguments for
approval. [40 C.P.R. §61.08(c).] A final determination in writing
is rendered within 60 days of presentation of (or due date for) the
additional information. [40 C.F.R. §61.08(d).j
• Existing Sources. Section 112(c)(l)(B) prohibits emissions in
excess of the NESHAP from existing sources. Existing sources are
required to comply with the NESHAP 90 days after the effective date
of the standard, unless a waiver has been obtained. Waivers are
permitted for up to two years and may be granted if the Administra-
tor finds that the source requires a period longer than 90 days to
install controls and that steps will be taken during the period of
the waiver to assure the protection of human health from imminent
endangerment. The procedures for review and determination of
waiver requests are established at 40 C.F.R. Sections 61.10 and
61.11.
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Chapter One Overview
Exemptions. Any source may be exempted from NESHAP compliance for a period
of up to two years (which period aay be extended one or more times) If the
President determines that the:
• Technology to Implement the standard Is not available; and
• Operation of the source Is required for reasons of national
security.
Regulation of Work Practices Under Section 112
The 1977 Amendments added a new Subsection (e) to Section 112 expressly to
permit EPA to promulgate standards for design, equipment, and operational
or work practices, or combinations thereof, If the Administrator determines
that It Is not feasible to prescribe or enforce an emission standard for
control of the hazardous pollutant. Prior to the 1977 Amendments, the Act
permitted regulation of NESHAPs by emission standards only. Emissions
standards did not Include work practices. See Adamo Wrecking Co. v. United
States. 434 U.S. 275 (1978). ~"~
The Infeaslbtlity of prescribing a numerical emission standard can occur
when:
• A hazardous pollutant or pollutants cannot be emitted through a
conveyance designed and constructed to emit or capture such a
pollutant; or
• The application of measurement methodology to a particular class of
sources Is not practicable due to technological or economic
limitations.
If the Administrator promulgates a design, equipment, work practice, or
operational standard, a source may use an alternative means of emission
limitation if the source can establish to the satisfaction of the
Administrator that such alternative will achieve a reduction in emissions
at least equivalent to the reduction achieved under the promulgated
standard. [Section 112(e)(3).J
Notification of Startup. If initial startup of a source is to occur after
the effective date of a NESHAP, the source owner or operator is required to
notify EPA in writing of the anticipated date of startup and the actual
date of startup. [See 40 C.F.R. §61.09.]
Determination of Compliance
Emissions tests and monitoring must be conducted and reported in accordance
with the requirements of 40 C.F.R. Sections 61.13 and 61.14 and Appendix
B. The owner or operator of a new source and, at the request of the
CAA Co.pllance/Bnforce.entf^O Guidance Manual 1986
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Chapter One Overview
Administrator, the owner or operator of an existing NESHAP source must
provide the following:
• Sampling ports adequate for test methods that are applicable to the
source;
• Safe sampling platforms;
• Safe access to sampling platforms;
• Utilities for sampling and testing equipment; and
• Any other facilities that the Administrator needs to test a source
safely and properly.
Judicial Review of NESHAPs. In accordance with Section 307(b)(l), a newly
promulgated NESHAPs is reviewable exclusively in the United States Court of
Appeals for the District of Columbia Circuit by filing a challenge within
60 days from the date of publication in the Federal Register of the promul-
gated regulation. In an action taken by EPA to enforce the NESHAP, the
source cannot challenge the regulation itself but may challenge whether the
standard applies to the source or whether the standard is being violated.
Role of States in Section 112. If the Administrator finds that a state's
procedure is adequate for implementing and enforcing the NESHAPs program in
the state, the Administrator may delegate the authority to implement and
enforce this program. [Section 112(d)(l).] Even after delegating the
program, however, the Administrator retains the authority to enforce any
applicable emission standard.
Whether or not the NESHAPs program has been delegated, states may adopt and
enforce standards more stringent than federal standards and require owners
or operators to obtain permits, licenses, or other approvals prior to ini-
tiating construction, modification, or operation of the source. [40
C.F.R. §61.17.]
Federal Enforcement (Sections 113 and 120)
Clean Air Act regulations are enforced by the states or designated state
agencies, by the federal government, or both. Additionally, citizens may
enforce the Act in certain cases. (See Chapter Eleven.)
States primarily enforce SIP regulations but may also enforce NSPS and
NESHAP regulations where EPA has delegated the federal responsibility to
the state. EPA can also enforce SIP regulations, as well as the NSPS and
NESHAP programs. This manual addresses in detail federal judicial
enforcement in Chapters Seven and Nine and federal administrative enforce-
ment under Section 113 in Chapter Six.
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Chapter One Overview
Administrative Orders, Civil and Criminal Judicial Actions (Section 113)
Section 113 was first enacted in 1970 and was substantially amended in
1977. The Steel Industry Compliance Extension Act of 1981 added a new Sub-
section (e), which had limited applicability.
Viewed in an oversimplified form, Section 113(b) authorizes EPA to enforce
a host of regulations in the U.S. District Court for the district in which
the violation has occurred or in which the defendant resides or has his or
her principal place of business. Federal courts may order injunctive
relief and the payment of up to $25,000 per day of violation in civil
penalties. Jail terms and monetary penalties can be levied against persons
convicted of knowingly violating certain regulations.
Before invoking federal court jurisdiction to remedy SIP violations, EPA
must issue a Notice of Violation (NOV) to the source owner or operator. If
the violation continues for 30 days thereafter, a federal cause of action
ripens. Sometimes, the receipt of an NOV by a source owner or operator is
enough to prompt corrective action. (See Chapter Six).
Section 113 authorizes EPA to issue an administrative order to remedy cer-
tain violations. This enforcement tool usually requires corrective action
by the source owner or operator that is relatively easy to accomplish.
Usually, the violation, or underlying cause of the violation, remedied by a
Section I13(a) order is associated with operation and maintenance of con-
trol equipment or of the source itself. (See Chapter Six).
Section 113(d) provides ruleraaking authority for EPA to issue delayed com-
pliance orders to qualifying sources. Delayed compliance orders are dis-
cussed in Chapter Six. Detailed discussion of DCOs is available in the
Policy Compendium at Section 113, particulary Tab T.
Noncompliance Penalty (Section 120)
The 1977 Amendments added a potentially powerful enforcement tool to the
Act. The administratively assessed penalty recovers any economic benefit
accruing to the source from a delay in compliance. By penalizing violating
sources an amount that nullifies any economic benefit derived from delayed
compliance, it is believed that a strong financial incentive for
noncompliance can be eliminated.
When a source delays complying or does not continuously comply with
applicable standards, the source derives an economic benefit because the
capital commitment, or other expense, required for pollution control is
deferred. This deferred outlay, if invested in profit-making ventures by
the violating source, could provide the violating source with a competitive
advantage over law-abiding industry competitors. The potential for this
advantage is sometimes incentive enough for some sources to take a
"wait-and-see" approach to compliance.
CAA Coapliance/Bnforceaent [T^Guidance Manual 1986
-------
Chapter One Overview
The noncompllince penalty removes these advantages. With certaLn excep-
tions, Section 120 permits the assessment and coilection of penalties froa:
• Major stationary sources not in compliance with an emission limita-
tion, emission standard, or compliance schedule under SIPs whether
or not the source is subject to a federal or state consent decree;
• Any source in violation of an NSPS or NESHAP requirement; and
• Certain categories of sources falling to comply with the require-
ments of an extension, order, or suspension granted pursuant to
specific variance provisions of the Act.
The noncompliance penalty program is Implemented by regulations codified at
40 C.F.R. Part 66. The program is discussed in detail In Chapter Eight of
this manual.
Inspections, Monitoring, and Entry (Section 114)
This section provides broad authority to EPA to gather information and evi-
dence for numerous purposes under the Act. Section 114 will be discussed
in more detail In Chapters Three, Four, and Eleven. Basically, Section 114
permits the Agency to "reasonably" require the owner or operator of any
emission source to:
• Establish and maintain records;
• Make reports;
• Install, use, and maintain monitoring equipment or methods;
• Sample emissions; and
• Provide other information.
Authorized representatives of the United States are empowered, upon
presentation of credentials and prior notification to the state air
pollution control agency, with the:
• Right of entry to, upon, or through any premises of source owners
or where records are located;
• Right of access, at reasonable times, to records (including the
right to copy them);
• Right to Inspect monitoring equipment and methods; and
• Right to sample emissions.
CAA Compliance/Enforcement 1-233 Guidance Manual 1986
-------
Chapter One Overview
Section 114 requires that any records, reports, or information shall be
available to the public except "upon a showing satisfactory to the Adminis-
trator [that public availability] would divulge [trade secrets]." If the
Administrator so finds, the Agency must protect the confidential business
information in accordance with 18 U.S.C. Section 1905 and EPA's regulations
at 40 C.F.R. Part 2. [See Chapter Eleven.]
CAA Ooapllance/Bnforce«ant 1-234 Guidance Manual 1986
-------
Chapter One
Exhibit 1-1
Pollutant
Particulatet
matter
Sulfur oxides
Carbon*
monoxide
Nitrogen
dioxide
Ozone
Lead
Rational Ambient
Averaging
Time
Annual (geometric
mean)
24 hrsa
Annual (arithmetic
mean
24 hrsa
3 hrsa
8 hrsa
1 hra
Annual (arithmetic
mean)
1 hra
3 mo s (arithmetic
mean)
Air Quality Standards
Primary
Standard Levels
75 ug/m3
260 ug/m3
80 ug/m3
(0.03 ppm)
365 ug/m3
(0.14 ppm)
10 mg/m
(9 ppm)
40 mg/m
(35 ppm)
100 ug/m3
(0.05 ppm)
240 ug/m3
(0.12 ppm)
1.5 ug/m3
Secondary
Standard Levels
60 ug/m3
150 ug/m3
—
~ —
1,300 ug/m
(0.5 ppm)
100 ug/m3
(0.05 ppm)
240 ug/m3
(0.12 ppm)
1.5 ug/m3
* The secondary standard for carbon monoxide was revoked on September 13,
1985.
a Not to be exceeded more than once a year.
t EPA' has proposed a revision of the partlculate standard. At present,
primary and secondary NAAQS for partlculates limit ambient levels of
particulates regardless of size. The new primary NAAQS will limit only
the smaller partlculates (which are thought to be more likely to affect
health).
CAA Compliance/Enforcement
1-235
Guidance Manual 1986
-------
Coqurtsoa of FSI Values, Pollutant Levels, and General nnbh Effects
vO
00
Pollutant Level
PSI TSP 90J
Value (24-hr) (24-hr)
ug*3 «fr>
400 875 2.1DO
and above and above and above
03
(8-hr)
ng/iir
46.0
and above
Oj NOj
(1-hr) (l-hr)
** "*
1.000 3,000 fezanfaus
and above and above
Health
Ef farts Warning
Pmature death of 111 All persons should main
and elderly. Healthy Indoors, keeping windows
30O-199
625-674
1,600-2,099 J4.0-45.9
800-999 2,260-2,999
200-279 J75-624 800-1,599 17.O-33.9
401-900 1,130-2,259
100-199
260-374
365-799
10.0-16.9
136-400
people will experience
advene synptons that
affect their normal
activity.
IhzardouB Prenacure onset of
certain dlseaso In
addition to significant
AgjciVRt Ion or sjn^jtum
an) decreased exercise
tolerance In hnlthy
persons.
Very Uritealrhful Significant aggravation
of syncconn and decreased
exercise tolerance In
person with hart or
lung disease, with
widespread ayu^AO'BS In
the healthy population.
IHimlthful Mid aggravation of
aymxmB In susceptible
persona, with trdtatton
ayaptan In the Wealthy
population.
and djors closed. All
pagmg should alMnlie
physical eiertlon and
•void traffic.
Elderly and pgsuia wtth
existing diseases should
stay Inbora ani avoid
physical exertion.
General popubtton should
avoid outdoor activity.
Elderly and penum vtth
existing hart or lung
disease should stay
l»bon and reduce
physical activity.
Persons with existing
heart or respiratory
allnoti should raJuoe
physical exenlon and
outcfcor activity.
vO
en
fM
u
It
o
•a
H
" Anrual prlnary NMQS.
Also publljhed at 40 PR 58, Appendix G
-------
2 General Operating Procedures
-------
Chapter Two ,,
— Contents
CAA Compliance/Enforcement2=11 Guidance Manual 1986
-------
Chapter Two
General Operating Procedures
Primary EPA Office Responsibilities
The United States engages in Clean Air Act compliance and enforcement
activities on the basis of the expertise, knowledge, advice, recommenda-
tions, and actions of the EPA and the Department of Justice.
Although it is an artificial distinction in certain respects, EPA's
enforcement program Includes both compliance-oriented activities and
legal-oriented activities. The compliance activities are primarily the
responsibility of EPA Headquarters' program offices and Regional
Administrators while the legal activities are primarily charged to Regional
Counsel or the Headquarters Office of Enforcement and Compliance
Monitoring (OECM). Many enforcement activities are not clearly
"compliance" or "legal" as they Involve elements of each activity. Where
both elements are present (which is usually the case), the EPA employee
must be especially diligent in coordinating his or her activity with the
activities of the other participating offices.
The Act invests all of the powers granted to EPA in the Administrator.
Section 301, however, authorizes the Administrator to delegate any author-
ities, except rulemaklng, under the Act to any officer or employee of EPA.
A copy of the portions of the EPA Delegations Manual applicable to the
clean air program can be found in the General Enforcement Policy
Compendium. In addition to the official delegations of authority, the com-
pliance and enforcement program is governed by two important documents in
the General Enforcement Policy Compendium. The documents, entitled "Work-
ing Principles Underlying EPA's National Compliance/Enforcement Programs"
and "General Operating Procedures for the Civil Enforcement Program," are
applicable to all EPA enforcement programs, including clean air.
In summary, the basic compliance/enforcement functions are divided among
participating offices as follows.
CAA Coup1lance/Bnforceaent 2-1 Guidance Manual 1986
-------
Chapter Two General Operating Procedures
Headquarters
Program Office: Assistant Administrator for Air and Radiation
• Manages national program matters;
• Establishes national enforcement compliance priorities;
• Provides overall direction to and accountability measures for the
enforcement compliance program;
• Maintains the Compliance Data System (CDS);
• Provides technical support.(including support for litigation
activities);
• Takes lead role In preparing guidance and policy decisions on
enforcement compliance Issues;
• Concurs, as necessary, on enforcement actions at as early a stage
as possible In the case development process;
• May retain responsibility for issuing civil administrative com-
plaints and other administrative orders in cases of first Impres-
sion, overriding national significance, or violations by any entity
in more than one Region; and
• Participates with OECM in handling enforcement legal issues and in
preparing joint guidance for areas in which compliance and legal
issues overlap.
Assistant Administrator for Enforcement and Compliance Monitoring Through
the Associate Enforcement Counsel for Air
• Provides legal advice regarding enforcement matters to the Assis-
tant Administrator to assist the Office of Air and Radiation in
performing programmatic functions;
• Develops legal and enforcement policies and guidance;
• Confers with the Department of Justice on the potential impact of
enforcement policy on litigation matters;
• Cooperates with the Assistant Administrator in the development of
enforcement policies that involve both enforement compliance and
enforcement legal activities;
• Checks case referrals from Regions, as well as consent decrees,
prior to submitting them to the Assistant Administrator for
Enforcement and Compliance Monitoring to ensure completeness and to
identify and properly address all precedential or nationally signi-
ficant Issues. A copy of the memorandum entitled "Headquarters
CAA Compliance/Enforcement2^2Guidance Manual 1986
-------
Chapter Two General Operating Procedures
Review and Tracking of Civil Referrals" can be found In the General
Enforcement Policy Compendium;
• Typically assists and supports the Regional Counsel lead attorneys
and Department of Justice attorneys by coordinating legal activity
and by contributing case Information to the development process;
and
• Occasionally takes the lead, or a more active role, In litigation
activities In a limited number of actions Involving precedential or
nationally significant Issues.
Regional Offices
Program Office
• Identifies Instances of noncompllance;
• Establishes priorities for handling Instances of noncompllance;
• Evaluates the technical sufficiency of actions designed to remedy
violations;
• Identifies for formal action those cases that cannot be resolved
less formally;
• Provides technical support necessary for developing cases and con-
ducting litigation;
• Issues permits;
• Issues Notices of Violation;
• Issues Administrative Orders under Sections 113(a) and 167(a);
• Issues Section 120 notices of noncompllance; and
• Issues applicability determinations pursuant to 40 C.F.R. §60.5
(NSPS) and 40 C.P.R. §61.5 (NESHAPs).
Regional Counsel
• Acts as attorney for client program offices;
• Assists program office in drafting or reviewing the terms and con-
ditions of permits;
• Assists program office in drafting or reviewing notices of
violation, administrative orders, or administrative complaints;
CAA Coapllance/Enforceaent2^3Guidance Manual 1986
-------
Chapter Two General Operating Procedures
• Assists throughout the case development process;
• Formally concurs on civil referrals prior to signature by the
Regional Administrator;
• Ensures consistency of action with OECM guidance;
• Assists in negotiating enforcement matters;
• Attends negotiations whenever outside parties are represented by
counsel in negotiations;
• Serves as lead attorney In handling specific enforcement actions
consistent with the Section VII(B) of the May 7, 1982, memorandum
on regional reorganization:
— Manages case for EPA,
— Coordinates case development for EPA, and
— Coordinates litigation activity with DOJ; and
• Provides legal representation for the Agency in administrative pro-
ceedings originating in the Region and appeals from those hearings.
National Enforcement Investigation Center (NEIC)
The National Enforcement Investigation Center (NEIC) reports to the Assis-
tant Administrator for Enforcement and Compliance Monitoring. Located in
the Denver area, NEIC functions as a national technical resource and inves-
tigative unit. NEIC's expertise in Investigation and evidence discovery
can assist case development and provide litigation support. OECM estab-
lishes NEIC's priorities and its availability. Regional Administrators and
the Assistant Administrator for Air and Radiation may request NEIC's
Involvement in cases that have precedential implications, national signifi-
cance, or are raultl-regional in nature, as opposed to cases involving more
routine matters.
The Department of Justice
Title 28, Section 512 of the United States Code establishes the Department
of Justice as the lawyer for the United States in any judicial action to
which the United States is a party, except as otherwise provided by law.
One such exception provided by law is Section 305 of the Clean Air Act,
which provides as follows:
(a) The Administrator shall request the Attorney General to
appear and represent him in any civil action instituted un-
der this Act 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.
CAA Conpliance/Bnforceaent 2-4 Guidance Manual 1986
-------
Chapter Two General Operating Procedures
(b) In the event the Attorney General agrees to appear
and represent the Administrator In any such action, such
representation shall he 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
of civil litigation.
A copy of the Memorandum of Understanding Is Included In the General
Enforcement Policy Compendium.
Section 305 and the Memorandum of Understanding establish the basic rela-
tionship between the Department of Justice and EPA In the conduct of civil
judicial litigation. The relationship Is defined In greater detail by the
April 8, 1982, memorandum of the (then) Associate Administrator for Legal
and Enforcement Counsel and General Counsel entitled "Draft DOJ/EPA Litiga-
tion Procedures." A copy of that document, commonly referred to as the
"Quantico Guidelines" because it was developed at a meeting held at the
QuantIco (VA) Marine Base, can be found in the General Enforcement Policy
Compendium. Finally, the September 29, 1983, letter from Deputy Adminis-
trator Alvln Aim to the Acting Assistant Attorney General established a
procedure for the direct referral of certain routine cases.
CAA Coapllance/Bnforcenant 2-5 Guidance Manual 1986
-------
U.S. Environmental Protection Agency
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-------
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National Enforcement
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-------
Chapter Two
Organizational Charts
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CAA Coapllance/Eaforceaent
2-8
Guidance Manual 1986
-------
I
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-------
3 Compliance Monitoring Procedures
-------
Chapter Three
Compliance Monitoring Procedures
Chapter Contents Page
1 Introduction 3-1
2 CAA Section 114 Requests for Information 3-3
Purpose 3-3
Exhibit 3-1: Model Section 114 Letter 3-4
Exhibit 3-2: Model Section 114 Letter 3-5
3 Inspections 3-7
Authority 3-7
Notice to State 3-8
Levels of Inspection 3-8
Elements of an Inspection for Levels 3 and 4 3-11
4 Warrants 3-15
Policy 3-15
Securing and Serving an Administrative Warrant 3-17
Exhibit 3-3: Model Application for Administrative
Warrant 3-19
Exhibit 3-4: Model Affidavit in Support of
Application for an Administrative Warrant 3-20
Exhibit 3-5: Model Administrative Warrant 3-22
CAA Compliance/Enforcement 3-1 Guidance Manual 1986
-------
Chapter Three Contents
CAA Coapllance/Enforcement 3-11 Guidance Manual 1986
-------
Chapter Three
1 Introduction
Compliance monitoring is a terra used to describe the means by which EPA
verifies conformance with statutory and regulatory requirements. In the
context of the Clean Air Act, Section 114 authorizes the Administrator or
authorized representatives to require any person who owns or operates any
emission source or who is subject to any requirement of the Act to:
• Establish and maintain records;
• Make reports;
• Install, use, and maintain monitoring equipment or methods;
• Sample emissions in accordance with EPA-prescribed locations,
intervals, and methods; and
• Provide such other information as may be required.
EPA's compliance monitoring activities vary widely from a letter requesting
information to a full-scale investigation, including onsite inspection and
sampling.
CAA Conpllance/Enforcement3-1Guidance Manual 1986
-------
Chapter Three Introduction
CAA Compliance/Enforcement 3^2 Guidance Manual 1986
-------
Chapter Three
2 CAA Section 114 Requests for
Information
Purpose
A Section 114 request for information is one of EPA's chief sources of
information.
Section 114 letters serve the following purposes:
• To provide advance notification of an Inspection;
• To obtain information when a full-scale, on-site Inspection Is not
cost effective;
• To facilitate the effectiveness of an Inspection; and
• To eliminate the need for an Inspection in some cases.
Section 114 letters typically request the following types of information:
• Raw materials, products, byproducts, production levels;
• Facility layout maps that identify process areas and emission
points;
• Flow diagrams for processes and emissions control;
• Description and design of pollution control equipment and normal
operating parameters;
• Recent self-monitoring reports;
• Description of self-monitoring equipment in use, normal operating
levels, and types of data produced by the equipment; and
• Copies of records that are required to be kept under an applicable
regulation.
Exhibit 3-1 is a model Section 114 letter aimed at facilitating an upcoming
scheduled Inspection. Exhibit 3-2 is a model letter aimed at obtaining
compliance information.
CAA Coapllance/Enforcenent3^3Guidance Manual 1986
-------
Chapter Three Exhibit 3-L
Model Section 114 Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Dear Mr./Ms.
The Environmental Protection Agency (EPA) will conduct an Inspection of
your facility's premises/conveyance under the authority of Section 114
of the Clean Air Act (42 U.S.C. §7414) on . The pur-
pose of the inspection is to determine compliance with the requirements
of this Act applicable to the emissions within your facility's
premises/conveyance. The inspectors will review records, files, and
papers that are either required to be maintained by this Act or are
applicable to the emissions within your facility's premises/conveyance;
observe process operations; evaluate monitoring practices, equipment,
and sites; and collect environmental samples. In addition, the inspec-
tors may wish to take photographs of selected subjects.
Prior to arrival, the inspectors) will require certain information; we
recognize that some of this material may have been submitted to EPA in
the past. If such is the case and that material is the most current
information, please simply refer to the title, date, and specific
recipient of such documents in your response to this request. .
Please provide copies of the following Information to EPA within twenty
days of receipt of this letter:
(List Information requested.)
Pursuant to regulations appearing at 40 C.F.R. Part 2, Subpart B and
specifically Section 2.301, you are entitled to claim any or all the
information provided to EPA or collected by EPA during the inspection
as confidential business information. Such Information can be dis-
closed by EPA only In accordance with the procedures set forth in the
regulations (cited above). Any such claim for confidentiality must
conform to the requirements set forth In 40 C.F.R. Section 2.203(b).
If you have any questions, please contact .
Thank you for your assistance In this matter.
Sincerely,
CAA Conpllance/Knforceaent 3-4 Guidance Manual 1986
-------
Chapter Three fahibit 3"2
Model Section 114 Letter
UNITED STATES
ENVIRONMENTAL PROTECTION AGENCY
Washington, D.C. 20460
Mr. John R. Smith
Sulfur Power and Light Company
600 Main Street
Glen Dale, Delaware 19901
Dear Mr. Smith:
Under the provisions of the Clean Air Act, as amended, 42 U.S.C. §1957
et seq., the Administrator of the Environmental Protection Agency
approved portions of an Implementation plan submitted by the State of
Delaware to attain national ambient air quality standards for sulfur
oxides within the Metropolitan Philadelphia Air Quality Control Region
(40 C.F.R. Part 52, 37 Fed. Reg. 2581). Among the provisions so
approved is Delaware Regulation VIII for control of sulfur content of
fuels.
Pursuant to Section U4(a)(ii) of the Act [42 U.S.C. §1857c-9(a)(il)],
to determine whether Sulfur Power and Light Company is in violation of
such provisions of the Implementation plan, you are hereby required,
under authority of Section 114(a), to report the following Information
with respect to the Sulfur Power and Light Company Plant In Glen Dale,
Delaware:
(1) Sulfur content of fuel used (percent by weight)
(2) Sampling and analytical procedure used to determine sulfur
content of fuel
(3) Number of fuel-burning units
(4) Rated heat input capacity per unit
Under Section 113(a) of the Act [42 U.S.C. §1857c-8(a)], failure to
provide the information required by this letter may result In an order
requiring compliance or in a civil action for appropriate relief. In
addition, Section 113(c)(l) of the Act [42 U.S.C. §1857c-8(c)(1)], any
such order shall be punished by a fine of not more than $25,000 per day
of violation, or by Imprisonment for not more than one year, or by
both.
Finally, Section Il3(c)(2) of the Act [42 U.S.C. §1857c-8(c)(2)] pro-
vides that any person who knowingly makes any false statement in any
report required under the Act shall be punished upon conviction, by a
fine of not more than $10,000, or by imprisonment for not more than six
months, or by both.
CAA Conpllance/Enforcenent 3-5 Guidance Manual 1986
-------
Chapter Three Exhibit 3-2
The information required by this letter shall be submitted no later
than 5 days after the date of its receipt. In addition, any change in
the information must be reported no later than 5 days after such change
occurs. This continuing requirement to provide notification of changes
in the information covered by this letter shall remain in effect until
expressly terminated in writing by this office.
If you have any questions concerning this matter, please contact
, at (phone number).
Regional Administrator
CAA Coapllance/Enforcenent 3-6 Guidance Manual 1986
-------
Chapter Three
3 Inspections
Authority
Section 114 of the Clean Air Act, authorizes the Administrator or author-
ized representatives, upon presentation of credentials, to:
• Enter any premises where any required records are maintained;
• Have access to and copy records;
• Inspect any monitoring equipment or methods; and
• Sample any emissions.
Off-Site Inspections
EPA has authority to conduct unannounced, off-the-premises Clean Air Act
visible emission observations Air Pollution Variance Board v. Western
Alfalfa, 416 U.S. 861 (1974).
Authorized Representatives
EPA does not have the manpower resources to conduct all of the compliance
monitoring functions on Its own. In order to carry out these functions,
EPA frequently hires private contractors to conduct on-slte Inspections and
sampling, among other things. EPA maintains that such contractors are
"authorized representatives" of the Administrator within the meaning of
Section 114. However, the courts have not unanimously upheld EPA's posi-
tion.
The U.S. Court of Appeals for the Ninth Circuit held, in Bunker Hill Co.
v. EPA, 658 F.2d 1280 (9th Cir. 1981), that EPA may designate contractors
as authorized representatives of the Administrator under Section
114(a)(2). Accord, In re Aluminum Co. of America, No. M-80-13 (M.D.N.C.
August 5, 1980). However, the U.S. Courts of Appeals for the Sixth Circuit
in United States v. Stauffer Chemical Co., 684 F.2d 1174 (6th Cir. 1982)
and for the Tenth Circuit in Stauffer Chemical Co. v. EPA, 647 F.2d 1075
CAA Compliance/Enforcement3^7Guidance Manual 1986
-------
Chapter Three Inspections
(10th Cir. 1981) have held that only EPA officers and employees are
authorized representatives.
Due to the split in the decisions, EPA developed the following policy:
• First, Second, Third, Fifth, Seventh, Eighth, Eleventh, and
District of Columbia Circuits. Contractors may be designated to
conduct inspections of facilities owned by anyone other than
Stauffer.
• Ninth Circuit. Contractors may be designated to conduct any
inspections.
• Sixth and Tenth Circuits. Absent express permission from Head-
quarters, contractors should not be designated to conduct any
inspections.
Notice to State
When EPA conducts a compliance Inspection to enforce any emission standard
or limitation that a state adopted as part of the state's implementation
plan or to enforce an emission standard or limitation contained in a
delayed compliance order issued by the state under Section 113(d), EPA must
give the state or local air pollution control agency reasonable prior
notice of the inspection. [See Section 114(d)(l).] State/EPA Memorandums
of Agreement should outline notification procedures. Additional guidance
on Section 114(d) is available in the Policy Compendium at Section 114, Tab
A.
Levels of Inspection
There are five levels of EPA Inspections.
Level 0
Level 0 consists of a determination of the continued operation of the
source and may not involve an on-site visit. It technically is not an
inspection and the Agency does not consider a Level 0 inspection to be an
acceptable compliance assurance method. A Level 0 inspection typically has
been characterized as a "drive-by" or "windshield" inspection.
CAA Compliance/Enforcement 3-8 Guidance Manual 1986
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Chapter Three Inspections
Level 1
Neither does the Agency consider a Level 1 inspection, in most cases, to be
a bonafide compliance inspection. A Level 1 inspection is an on-slte
inspection that is usually limited to the evaluation of visible emissions
from process vents, fuel combustion sources, incinerators, and fugitive
emission sources. This type of inspection should only be used to enforce
opacity standards or particulate standards when a correlation between
opacity and mass emission rates has been established.
This inspection requires a minimum of time and manpower and places limited
regulatory pressure or involvement on the source. A Level 1 inspection
should be restricted to sources where there is a minimum potential for
malfunction or excess emissions under nonrepresentative, operating
conditions.
Level 2
Level 2 is considered a compliance determining inspection in which current
control device and process operating conditions may be recorded as part of
the source evaluation in addition to visible emission observations. This
level of inspection, however, does not include the measurement of operating
conditions by the inspector or the completion of a detailed engineering
analysis. It does Include a review of existing records and log books on
source operations, particularly for the intervening period following the
last Inspection.
In a typical application, the inspector may record such process items as
feed rates, temperatures, raw material compositions, process rates, and
such control equipment performance parameters as water flow rates, water
pressure, static pressure drop, and electrostatic precipitator (ESP) power
levels. The Inspector could then use these values to determine any signi-
ficant change since the last inspection or any process operations outside
normal or permitted conditions, particularly when coupled with the
aforementioned records check.
A significant change in operating conditions could require that the Inspec-
tor upgrade the inspection to a Level 3 or that a stack test be conducted
to verify compliance.
Level 3
Level 3, a thorough and time-consuming inspection, is designed to provide a
detailed engineering analysis of source compliance using measured operating
parameters such as pressure drop, fan static pressure and current, gas
stream temperature, ESP power levels, flue gas conditions, oxygen level,
and water flow rates. The measured data are reduced and used to calculate
flue gas volume, superficial velocity, specific collection area, inlet
velocity, air-to-cloth ratio, hood inlet volume and velocity, liquid-to-gas
CAA Compliance/Enforcement3-9Guidance Manual 1986
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Chapter Three Inspections
ratio, throat velocity, etc. Because many of these are control device and
source specific, they must be adjusted to the individual source being
inspected.
There are three major purposes for this type of inspection:
• To establish baseline operating conditions;
• To support case development activity; and
• To verify whether the source is experiencing O&M problems that
result in less than continuing compliance with the emission
standards.
The inspection may also include an internal Inspection of the control
device. For fabric filters, an internal inspection is required to deter-
mine bag condition or integrity of the baghouse. For scrubbers, an inspec-
tion of the condition of the nozzles is required if the water flow rate or
pressure data indicate the possibility of pluggage. An internal inspection
of ESPs may be required If power data indicate a problem with ash buildup
or plate alignment. A periodic internal inspection of mechanical collec-
tors is required where the collection of abrasive dust is likely to cause
abrasion-induced failure.
Because this level of inspection requires the monitoring of equipment con-
ditions and, in some cases, an internal Inspection, the inspector must be
sure that all safety requirements are met prior to entry. In all cases,
lockout procedures should be used and applicable safety equipment employed.
Level 4
The Level 4 inspection prepares an actual emissions baseline for the source
through the use of a stack test. This inspection requires that the
Inspector monitor all process and control device operating parameters
during a stack test for use during future Inspections. The Level 4
Inspection is typically applied to sources with ESPs or high-energy wet
scrubbers. The inspection may require documentation of control equipment
conditions through the use of an internal inspection before the stack test
or a chemical analysis of process material or fuel that is being burned
(e.g. , percent sulfur, percent ash, heat content, or percent moisture).
The purpose of the increasing level of inspection is to concentrate the
resources on those sources that have the greatest potential to exceed the
emission limits. For Instance, initial results of the Level 3 Inspection
may Indicate that specific sources are not experiencing deficiencies in
performance and, therefore, do not warrant a higher level of inspection.
In these cases, the frequency or level of inspection may be adjusted
downward consistent with the results of the Level 3 inspection.
CAA Compliance/Enforcement 3-10 Guidance Manual 1986
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Chapter Three Inspections
Elements of an Inspection for Levels 3 and 4
Generally, the elements of Level 3 or Level 4 Inspections are: (1) pre-
inspection preparation, (2) entry, (3) opening conference, (4) sampling and
documentation, (5) closing conference, and (6) report preparation. Most of
these elements are common to all inspections, but the emphasis given to any
element will vary with the needs of the individual Inspection.
Pre-Inspection Preparation
To ensure effective use of the Inspector's time, the following procedures
are typically undertaken before beginning the Inspection of a selected
facility:
• Establish inspection objectives;
• Establish the scope of the inspection;
• Prepare an inspection plan;
• Conduct a review of Agency records;
• Contact state/local agency for most recent source information;
• Prepare necessary documents; and
• Prepare sampling equipment and safety equipment.
Entry
In order to obtain actual physical entry to the premises, EPA employs the
following procedures for Clean Air Act purposes:
• Introduction;
• Presentation of official credentials;
• Management of denial of entry when necessary (for entry/denial pro-
cedures, see Warrants Section 2 of this chapter).
Opening Conference
After entry, the inspector usually conducts an opening conference with the
facility management. During the opening conference, the inspector Is res-
ponsible for the following activities:
• Discussing the objectives and scope of the inspection (for
announced inspections, this should be done before arrival);
CAA Conpllance/Enforcenent 3-11 Galdanee Manual 1986
-------
Chapter Three Inspections
• Advising the plant manager of the right to request confidential
treatment of trade secret information pursuant to AO C.F.R. Part 2;
• Providing information on the requirements of the CAA;
• Planning meetings with personnel and scheduling inspections of
various plant areas;
• Discussing plant safety requirements and emergency procedures; and
• Advising company officials of their right to sample emissions or to
conduct visible emission observations at the same time EPA does.
Sampling and Documentation
Reviewing facility records, taking samples, and preparing documentation are
the basic inspection activities. These activities provide the evidentiary
support the Agency uses in enforcement actions. The inspector's responsi-
bilities include:
• Identifying, locating, and Inspecting records that are relevant to
the control of emissions;
• Preparing documentation of all inspection activities;
• Inspecting operating conditions associated with production facil-
ities, control equipment, and monitoring equipment;
• Taking photographs, if necessary;
• Taking necessary samples, sealing samples, and establishing chain-
of-custody;
• Taking visible emission samples; and
• Operating in a safe and efficient manner.
Closing Conference
The closing conference with facility officials enables the inspector to
prepare receipts and answer questions about the Act. At the closing con-
ference, the Inspector "wraps up" the inspection by:
• Writing necessary receipts;
• Accepting the Declaration of Confidential Business Information (40
C.F.R. §2.203);
• Advising that results of any analysis of samples will be furnished
to the facility; and
CAA Ccmpllance/Enforceaent 3-12 Guidance Manual 1986
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Chapter Three Inspections
• Discussing specific Inspection findings (i.e., factual observations
and measurements). Conclusions should not be drawn until all
pertinent findings, data, and information are evaluated. At no
time should enforcement considerations be discussed.
Report Preparation
Inspection results are organized In a comprehensive, relevant, and accurate
report including:
• Inspection report forms;
• Narrative report; and
• Other documentary support.
In preparing the inspection report, CBI material preferably should be
referenced in a nonconfIdential manner. (As an alternative, the report
could Include the confidential information; however, the entire inspection
report must then be treated as a confidential document.)
CAA Compliance/Enforcement 3-13 Guidance Manual 1986
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Chapter Three Inspections
CAA Compliance/Enforcement 3-14 Guidance Manual 1986
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Chapter Three
4 Warrants
In the vast majority of cases, EPA obtains the consent of the facility's
management in order to enter the premises and to conduct compliance moni-
toring activities. However, some facilities refuse to allow EPA employees
access to premises, especially where "trade secret" operations or, perhaps,
surreptitious illegal activities are conducted. When consent cannot be
obtained (or is withdrawn) an administrative warrant can be used to gain
entry. A warrant is a judicial authorization for an appropriate official
(EPA inspector, U.S. Marshal, or other authorized officer) to enter a
specifically described location and perform clearly defined inspection
functions.
Policy .
It Is the policy of EPA to obtain a warrant when all other efforts to gain
lawful entry have been exhausted and the inspector has carefully followed
established entry procedures. This policy, of course, does not apply to
pre-inspection warrants.
Marshall v. Barlow's, Inc.
In Marshall v. Barlow's. Inc., 436 U.S. 307 (1978), the Supreme Court
addressed the need for an administrative warrant when an Occupational
Health and Safety Administration inspector sought entry Into a workplace
where consent for the inspection was not voluntarily given by the owner.
The Court concluded that an administrative warrant was required to conduct
such regulatory inspections unless the industry Is one with a history of
pervasive regulation, such as liquor or firearms. The Agency applies the
requirements of the Barlow's decision to all CAA Inspections.
According to Barlow's, a warrant may be obtained on either of two bases:
• Where there is probable cause to believe that a violation has been
committed; or
CAA Compliance/Enforcement 3-15 Guidance Manual 1986
-------
Chapter Three Warrants
• When the Inspection is pursuant to a neutral inspection scheme.
[Criteria for neutral inspection schemes under the CAA are
available in the Policy Compendium, Section 114, Tab B.]
Probable cause (for purposes of administrative warrants) means that there
is specific evidence of an existing violation or the threat of one. The
application for the warrant must be supported by factual Information suffi-
cient to apprise a court of the specific nature of the circumstances giving
rise to the need for a warrant.
Seeking a Warrant Before Inspection
Normally, EPA arrives at a facility and requests entry without having first
obtained a warrant. If the facility denies entry, EPA then obtains the
warrant. However, it is sometimes advisable to obtain a warrant prior to
going to the facility. A pre-inspection warrant may be obtained at the
discretion of the Regional Office if:
• A violation is suspected and could be covered up within the time
needed to secure a warrant;
• Prior correspondence or other contact with the facility to be
inspected provides reason to believe that entry will be denied when
the inspector arrives; or
• The facility is unusually remote from a magistrate or a district
court and, thus, obtaining a warrant after a refusal of.entry would
require excessive travel time.
Civil Versus Criminal Warrants
If the purpose of the inspection is to discover and correct, through civil
procedures, noncompliance with regulatory requirements, a civil warrant
should be secured if entry is refused.
If the primary purpose of the Inspection Is to gather evidence for a crimi-
nal prosecution and there is sufficient evidence available to establish
probable cause for a criminal warrant, then a civil warrant should not be
used to gain entry. Rather, a criminal search warrant must be obtained
pursuant to Rule 41 of the Federal Rules of Criminal Procedure. (See
"Guidelines for the Use of Administrative Discovery Devices In the
Development of Potential Criminal Cases.")
Evidence obtained during a valid civil inspection is generally admissible
in criminal proceedings.
CAA Compliance/Enforcement 3-16 Guidance Manual 1986
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Chapter Three Warrants
Securing and Serving an Administrative Warrant . _ .
EPA developed certain procedures for obtaining and serving warrants in
light of the Barlow's decision.
Important Procedural Considerations
• The application for a warrant should be made as soon as possible
after the denial of entry or withdrawal of consent.
• In order to satisfy the requirements of the Barlow's decision, the
affidavit in support of the warrant must include a description of
the reasons why the facility has been chosen for inspection. The
only acceptable reasons are specific probable cause or selection of
the facility for inspection pursuant to a neutral administrative
inspection scheme.
• A warrant must be served without undue delay and within the number
of days stated (usually 10 days). The warrant will usually direct
that It be served during daylight hours.
• Because the Inspection is limited by the terras of the warrant, it
is very important to specify to the greatest extent possible the
areas Intended for inspection, records to be inspected, samples to
be taken, etc. A vague or overly broad warrant probably will not
be signed by the magistrate.
• If the owner refuses entry to an inspector holding a warrant but
not accompanied by a U.S. Marshal, the Inspector should leave the
establishment and inform the U.S. Attorney.
Procedures for Obtaining a Warrant
1. Contact the Regional Counsel's Office. The inspector should discuss
with the Regional Counsel's Office the facts regarding the denial or
withdrawal of consent or the circumstances that gave rise to the need
for a pre-inspection warrant. A joint determination will then be made
as to whether or not to seek a warrant.
2. Contact Headquarters Air and Radiation Program Office. The Regional
Office should notify Headquarters.
3. Contact the United States Attorneys Office. After a decision has been
made to obtain a warrant, the designated regional official should con-
tact the U.S. Attorney for the district in which the property is
located. The Agency should assist in the preparation of the warrant
and necessary affidavits.
CAA Compliance/Enforcement3^17Guidance Manual 1986
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Chapter Three Warrants
4. Apply for the Warrant. The application for a warrant should identify
the CAA as authorizing the issuance of the warrant. The name and
location of the site or establishment to be inspected should be clearly
identified and, if possible, the owner and/or operator should be
named. The application can be a one- or two-page document if all
factual requirements for seeking the warrant are stated in the
affidavit and the application so states. The application must be
signed by the U.S. Attorney [Exhibit 3-3].
5. Prepare the Affidavits. The affidavits in support of the warrant
application are crucial documents. Each affidavit should consist of
consecutively numbered paragraphs that describe all of the facts in
support of warrant issuance. Each affidavit should be signed by a per-
son with first-hand knowledge of all the facts stated, most likely the
inspector. An affidavit is a sworn statement that must be notarized or
sworn to before the magistrate [Exhibit 3-4].
6. Prepare the Warrant for Signature. The draft should be ready for the
magistrate's signature. Once signed, the warrant is an enforceable
document (i.e., failure by a facility to comply with the warrant is
treated as a contempt of the court). The warrant should contain a
"return of service" or "certificate of service" that indicates upon
whom the warrant was served. This part of the warrant Is to be dated
and signed by the Inspector after the warrant is served [Exhibit 3-5].
7. Serve the Warrant. The warrant is served on the facility owner or the
agent In charge at the time of the inspection. Where there is proba-
bility that entry will still be refused, or where there are threats of
violence, the inspector should be accompanied by a U.S. Marshal. In
this case, the U.S. Marshal Is principally charged with executing the
warrant, and the inspector must abide by the U.S. Marshal's decisions.
8. Perform the Inspection. The inspection should be conducted strictly In
accordance with the warrant. If sampling is authorized, all procedures
must be followed carefully, Including presentation of receipts for all
samples taken. If records or other property is authorized to be taken,
the Inspector must issue a receipt for the property and maintain an
inventory of anything removed from the premises. This inventory will
be examined by the magistrate to ensure that the inspector has not
overstepped the warrant's authority.
9. Return the Warrant. After the Inspection has been completed, the war-
rant must be returned to the magistrate. Whoever executes the warrant
(i.e., the U.S. Marshal or whoever performs the inspection) must sign
the return of service form Indicating to whom the warrant was served
and the date of service. The executed warrant is then returned to the
U.S. Attorney who will formally return it to the issuing magistrate or
judge. If anything has been physically taken from the premises, such
as records or samples, an inventory of such items must be submitted to
the court, and the Inspector must be present to certify that the inven-
tory is accurate and complete.
CAA Covpliance/Enforceaent 3-18 Guidance Manual 1986
-------
Chapter Three Exhibit 3-3
Model Application for Adnlnlstratlve Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF: ) Docket No.
) Case No.
Application for an
Administrative Warrant
NOW COMES a duly designated representative of the Administrator of the
United States Environmental Protection Agency, by and through (name),
United States Attorney for the District of
and applies for an administrative warrant to enter, Inspect, reproduce
records, photograph, and sample for compliance with the Clean Air Act,
42 U.S.C. §7401 et seq., and as authorized by Section 114 of the Act,
42 U.S.C. §7414, the premises at (description of the premises) in the
possession, custody, or control of the (name of company or owner).
In support of this application, the duly designated representative of
the Administrator respectfully submits an affidavit and a proposed
warrant.
Respectfully submitted,
(Signature of U.S. Attorney)
United States Attorney for the
District of
(Date)
CAA Conpllance/Enforceaent 3-19 Guidance Manual 1986
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Chapter Three
Exhibit 3-4
Model Affidavit In Support of
Application for an Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF:
Docket No.
Case No.
Affidavit in Support of
Application for an
Administrative Warrant
State of
County of
(Name of Affiant)
being duly
sworn upon his (her) oath, according to law, deposes and says:
1. I am compliance officer with the (division)
States Environmental Protection Agency, Region
_, United
and a duly
designated representative of the Administrator of the United States
Environmental Protection Agency for the purpose of conducting inspec-
tions pursuant to Section 114 of the Clean Air Act, 42 U.S.C. §7414. I
hereby apply for an administrative warrant of entry, Inspection, repro-
duction of records, photography, and sampling of the premises in the
possession, custody, or control of the (name of company or owner).
2. (Name of establishment, premises, or conveyance) is a
(describe business) that the undersigned compliance officer of the
United States Environmental Protection Agency has reason to believe is
in violation of the Clean Air Act. This belief is based upon the
following facts and information: (Summarize the reasons why a viola-
tion is suspected and the specific facts that give rise to probable
cause or summarize the neutral administrative inspection scheme used to
select the premises for inspections).
3. The entry, inspection, reproduction of records, photography,
and sampling will be carried out with reasonable promptness, and a copy
of the results of analyses performed on any samples or material collec-
ted will be furnished to the owner or operator of the subject premises.
CAA Conpliance/Enforceaent
3-20
Guidance Manual 1986
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Chapter Three fahibit 3-4
4. The compliance officer may be accompanied by one or more other
compliance officers of the United States Environmental Protection
Agency.
5. A return will be made to the court at the completion of the
inspection, reproduction of records, photography, and sampling.
(Signature of Affiant)
(Title)
(Division)
Region ( )
United States Environmental
Protection Agency
Before me, a notary public of the State of »
County of . on this day of
19 , personally appeared . and uP°n oath
stated that the facts set forth in this application are true to his
(her) knowledge and belief.
(Signature of Notary)
A Notary Public of
My Commission Expires^
CAA Compllance/Boforcement 3-21 Guidance Hanual 1986
-------
Chapter Three
Exhibit 3-5
Model Administrative Warrant
UNITED STATES DISTRICT COURT
DISTRICT OF
IN THE MATTER OF:
To (name)
(title)
Docket No.
Case No.
Warrant of Entry, Inspection,
Reproduction of Records,
Photography, and Sampling
United States Environmental
Protection Agency, Region , and any other duly designated repre-
sentatives of the Administrator of the United States Environmental
Protection Agency:
Application having been made by the United States Attorney on behalf of
the United States Environmental Protection Agency (EPA) for a warrant
of entry, inspection, reproduction of records, photography, and
sampling to determine compliance with regulations under the Clean Air
Act, 42 U.S.C. §7401 et seq.; and, the court being satisfied that there
has been a sufficient showing that reasonable legislative or admini-
strative standards for conducting an Inspection and investigation have
been satisfied;
IT IS HEREBY ORDERED that EPA through its duly designated representa-
tives (Names of representatives) is hereby entitled and author-
ized to have entry upon the following described premises:
(Description of premises.)
IT IS FURTHER ORDERED that entry, inspection, reproduction of records,
photography, and sampling shall be conducted during regular working
hours or at other reasonable times, within reasonable limits, and in a
reasonable manner.
IT IS FURTHER ORDERED that the warrant shall be for the purpose of
conducting an entry, inspection, reproduction of records, photography,
and sampling pursuant to 42 U.S.C. §7414 consisting of the following
activities:
CAA Conpliance/Rnforceaent
3-22
Guidance Manual 1986
-------
Chapter Three fahibit 3-5
(Describe specific activities.) For example;
• Entry to, upon, or through the above-described
premises including all buildings, structures,
equipment, machines, devices, materials, and sites to
inspect, sample, monitor, and investigate the said
premises.
• Access to and reproduction of all records pertaining
to or relating to air emissions.
• Inspection, Including photographing of any equipment,
methods, or sites used to monitor or control air
emissions.
IT IS FURTHER ORDERED that, if any property Is seized, the duly
designated representative or representatives shall leave a receipt for
the property taken and prepare a written inventory of the property
seized and return this warrant with the written Inventory before me
within 10 days from the date of the inspection.
IT IS FURTHER ORDERED that this warrant shall be valid for a period of
10 days from the date of this warrant.
IT IS FURTHER ORDERED that the United States Marshal Is hereby authorized
and directed to assist the representatives of the United States
Environmental Protection Agency In such manner as may be reasonable,
necessary, and required.
(Signature of Magistrate)
(Date)
CAA Coapllance/Enforceoient 3-23 Guidance Manual 1986
-------
Chapter Three Exhibit 3-5
RETURN OF SERVICE
I hereby certify that a copy of the within warrant was served by
presenting a copy of same to (facility owner or agent) on (date) at
(location of establishment or place) .
(Signature of person making service)
(Official title)
RETURN
Inspection of the establishment described In this warrant was completed
on (date)
(Signature of person conducting the Inspection)
CAA Compliance/Enforcement 3-24 Guidance Manual 1986
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4 Documentation of Evidence
-------
Chapter Four
Documentation of Evidence
Chapter Contents Page
1 Introduction 4-1
2 Inspection File Review 4-3
Controlled Identification of Sample 4-3
Exhibit 4-1: Custody Seal 4-5
Exhibit 4-2: Chain-of-Custody Record 4-6
3 Review of Adequacy of Evidence 4-9
Initial Review of the Inspection File 4-9
Contents of an Inspection File 4-10
Additional Sources of Documentation 4-13
Further Processing of the Inspection File—
Enforcement Case Review 4-13
CAA Gompliance/Eaforceaent 4-1 Guidance Manual 1986
-------
Chapter Four Contents
CAA Coopllance/Knforceaent 4-ii Guidance Manual 1986
-------
Chapter Four
1 Introduction
Upon completion of an inspection, enforcement inspectors are required to
organize the documentary evidence into an inspection file. An inspection
file may actually consist of two separate files—a nonconfidential file and
a confidential business information (CBI) file.
Information gathered during a CAA Inspection that has not been declared CAA
CBI is organized by the inspector into a package referred to as the non-
confidential inspection file. This file contains the inspector's report,
all forms, and nonconfidential evidence. Once compiled, the file Is sent
to the enforcement personnel who review it to determine if it warrants
enforcement action.
Information gathered during an Inspection that has been declared CBI is
organized by the inspector into a package referred to as the CBI inspection
file. When an inspector returns with information that has been declared
confidential, the information is given to the Document Control Officer
(DCO). In addition, the inspector also Informs the officer of any physical
samples that were declared confidential. Physical samples are assigned a
Document Control Number by the control officer who, in turn, notifies the
laboratory of this number. (The Document Control Number is used by
laboratory personnel in completing the chain-of-custody and laboratory
analysis forms.) Once CBI material has been logged in by the control
officer, review of the information by enforcement personnel must be in
accordance with the procedures prescribed by the control officer.
CAA Conpllance/Eaforceneat 4-1 Guidance Manual 1986
-------
Chapter Four Introduction
CAA Compliance/Enforcement^2Guidance Manual
-------
Chapter Four
2 Inspection File Review
To ensure the validity and probative value of documentary evidence for an
administrative or Judicial enforcement proceeding, enforcement personnel
must review the evidence for objectivity, adequacy, and proper
identification. In some instances, the enforcement personnel may request
an Enforcement Case Review, which could include an interpretation of
laboratory test results. In all cases, it must be verified that all
procedural safeguards were implemented.
Controlled Identification of Sample
An important aspect of any review is the determination that samples were
properly collected and accurately and completely identified.
Whenever a sample is taken, a Collection Report (EPA Form 3540-7) is
completed describing the sample collection process. Information Includes:
• Type of sample;
• Sample number, subsample number;
• Date of collection;
• Collection method;
• Description of sample;
• Duplicate samples, if provided; and
• Description of procedures for sealing sample.
When a facility claims that samples or documents are confidential, the
facility must complete a Declaration of Confidential Business Information.
Information contained on the declaration includes:
• EPA Regional Office address;
• Date of declaration;
CAA Compliance/Enforcement 4-3 Guidance Manual 1986
-------
Chapter Four Inspection File Review
• Name, title, and address of firm and individual making the
declaration;
• List, by title or description, of all information claimed as CBI;
and
• Name and title of inspector.
If the facility claims that the information is confidential, EPA must
follow the CBI procedures. (See Chapter Eleven.)
Samples that are to be used as evidence must be sealed with EPA seals,
which are placed on sample containers by the inspector (see Exhibit 4-1).
In addition, an accurate written record must be maintained to trace the
possession of each sample from the moment of collection through its
introduction as evidence. Therefore, transfer of all samples from the
inspector to other authorized persons must be recorded on an EPA Chain-of-
Custody Record, which contains the following information (see Exhibit 4-2):
• Site location;
• Station location;
• Date and time of collection;
• Sample analysis required;
• Sampler's name;
• Remarks; and
• Accepting/relinquishing samples.
CAA Coapliance/Enforceaeat 4-4 Guidance Manual 1986
-------
.0
2
rfi
•8
u
o
l-c
4)
a
«
CUSTODY SEAL
/
i Date
8|BQ
Signature
ivas Aaoisno
o-<0 ""•• CUSTODY SEAL
f\ 'o ._
Slgiuilure
-------
Chapter Four
Exhibit 4-2
Chain of Custody Record
Chun otCusnoy 3«cora
8
10
11
• Enter inspector's
name and EPA
office address (1).
• The inspector
must sign the
Chain of Custody
Record (2).
• The Sample (3)
and Inspection
(4) numbering
program is
currently under
development.
Information
regarding these
spaces will be
provided at a
later date.
• Task numbers
refer to EPA
contractors.
Inspectors may
disregard (5).
• Describe the
sample, including
size, container, i —--~~^~~~
and contents '
(e.g., 8 oz. — •
bottle of PCB
transformer oil.)
List brand names,
if any (6).
• List date (7) and time (8) sample was collected.
• Indicate if duplicate sample was requested by facility, officials (9)."
• Enter name and address of firm (10).
• Lis: :escir.g required for samples coiieccad (e.g. , cesc for PCB con-
centration) (11). *~
• The remaining parts of the Record will be completed by personnel other
than the insoeccor.
I :.
CAA Compliance/Enforcement
4-6
Guidance Manual 1986
-------
Chapter Four
Exhibit 4-2
UnitMSum
Envirenmtmii feeucnon
A««ncv
Chain of Custody Record
1 T«i ( ] HO
Can4iuo« of ••*!•
Of 'Jttktl •«««l*««
CAA Compliance/Enforcemeat"
4-7
Guidance Manual 1986
-------
Chapter Four Exhibits
CAA Coopliance/Knforceaent 4-8 Guidance Manual 1986
-------
Chapter Four
3 Review of Adequacy of Evidence
Initial Review of the Inspection File
Enforcement personnel must review the inspection file with the following
considerations in mind:
• Adequacy of the documentation;
• Significance of the violation in terms of EPA13 enforcement
objectives (see Chapter Five); and
• History of violations by the firm. (History may be obtained from
the Compliance Data System (CDS) and the regional case files.)
The purpose of the review is to develop a recommendation whether or not to
initiate an enforcement action.
Adequacy of the Documentation
The initial phase of the review should focus on two aspects of the
documentation:
• That all necessary documentation and samples have been provided;
and
• That the evidence is adequate to establish the elements of the
violation as indicated by the results of the inspection and other
information.
In some instances, review will indicate the possibility of additional
violations that the file does not document. In such case, the Regional
Office should obtain the additional documentation. This may require
further consultation with the inspector or forwarding the file to
Headquarters for an enforcement case review. When a violation is
discovered that is unrelated to the initial suspected violation, the new
violation should be pursued as a new action.
CAA Compliance/Enforcement 4-9 Guidance Manual 1986
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Chapter Four Review of Adequacy of Evidence
Contents of an Inspection File
Depending on the level of inspection (see Chapter 3) and the availability
of other forms of information, an inspection file may contain some or all
of the following items:
• Project Plan. The plan should be reviewed to determine that it
accurately reflected objectives, scope, logistics, and schedules
for the inspection. Inspectors should be prepared to explain the
rationale for the inspection plan and any deviations from the
original plan.
• Inspection Report. The report should be reviewed for factual
accuracy, professional judgments, objectivity, and
comprehensiveness.
• Custody Records. There should exist a complete inventory of sample
tags/seals (Exhibit 4-1), chain-of-custody records (Exhibit 4-2),
and related material that demonstrates the chain of custody and
proper identification of all samples.
• Laboratory Analyses. Test results from any laboratory analyses
should be reviewed for custody, methods, quality control, and
proper identification.
• Declaration of Confidential Business Information. The declaration
should be reviewed for signatures, dates, and a complete listing of
all documents and data for which CBI was claimed.
• Copy of applicable regulations, permits, orders, etc.
• Oral or written admissions by the source as to control, ownership,
or operation of the facility; applicability of regulations, etc. in
response to Section 114 letters or from other sources.
• State and local records showing name of corporation, state of
incorporation; tax records showing payment of taxes for
facility; etc.
• Financial service records, publications such as Moody's and
Standard and Poor's often list assets.
• Securities and Exchange Commission Forms 10K and 10Q.
• Profitability claims. The plant may have "lost" money while
its corporate division may have made money.
• Financial service reports and state files may show where the
"person" resides, is incorporated, and does business.
CAA Conpliance/Enforceaent 4-10 Guidance Manual 1986
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Chapter Four Review of Adequacy of Evidence
• Source technical data from which EPA engineers can calculate
relevant data (e.g. , size of boilers).
• Maps showing location of source.
• State or previous EPA inspections of facility.
• Search of state/EPA records showing absence of variance provision.
• NOV Issued in SIP Cases
— Postal service return receipt signed by source representative.
All NOVs should be sent certified.
— Official file copy of NOV showing date mailed or hand-served.
• Violations 30 Days After NOV
— State or EPA inspections showing violations; stack test visible
emission, or emission factor calculation reports for tests done
after 30-day period.
— Source admissions; response to Section 114 letter or other
correspondence, oral statements in meetings, conferences, etc.
— Source data indicating operation of plant in the same fashion
(e.g., same coal, same method of operation, same lack of
controls) after 30-day period as before.
• Affidavits. Affidavits are sworn statements taken by the inspector
that relate to personal first-hand knowledge of a potential
violation. Affidavits may be used to substantiate a violation or
to establish the circumstances surrounding a violation. The person
making the affidavit must sign it and be able to verify personally
the facts contained in the statement.
The objective of an affidavit is to obtain a clear and concise
written record of factual information relating to a suspected
violation. The oath taken by the person making the affidavit
serves to substantiate the truth of the statement. Affidavits may
be used to verify the dates obtained from a facility's records
(e.g., the date of emissions). Review should emphasize the
admisslbility of the affidavit in court (i.e., whether the
affidavit was properly executed and whether it contributes valid
evidence to any contemplated proceeding). The affidavit itself
should contain the following:
— Identity of the affiant;
— The reason why the affidavit was taken;
— The pertinent facts in a simple narrative style, arranged in
chronological order; and
CAA Goapliance/Enforceaent 4-11 Guidance Manual 1986
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Chapter Four Review of Adequacy of Evidence
— A concluding paragraph indicating that the affiant read and
understood the statement.
In addition, any corrections made to the final copy must be
initialed by the affiant.
• Statements. Statements are similar in most respects to affidavits
except that statements are not taken under oath. Although an un-
sworn statement does not carry the same evidentiary weight in
court, statements are taken for the same reasons and under the same
procedures as affidavits. An important use for statements is veri-
fication of data collected during an inspection. For example, a
statement may be obtained from a facility representative that indi-
cates the date of an exceedance. Review should verify the person's
identity and the truth of the statement evidenced by a signature or
some other written or verbal acknowledgment.
• Printed Matter. Brochures, literature, labels, and other printed
matter may provide important Information regarding a firm's condi-
tions and operations. These materials may be collected as relevant
documentation. All printed matter should be Identified with the
date, the Inspector's initials, and related sample numbers.
• Photographs. The documentary value of photographs ranks high as
admissible evidence. Clear photographs of a relevant subject,
taken in proper light and at proper lens setting, provide an
objective record of conditions at the time of inspection. Review
must ensure that the photographs are clear, objective, and properly
identified. The photographs should be identified by location,
purpose, date, time, inspector's Initials, and related sample
number. This information should be recorded on the photographs, or
in the inspector's field notebook, or both.
• Drawings and Maps. Schematic drawings, maps, charts, and other
graphic records can be useful in supporting violation
documentation. They can provide graphic clarification of site
location relative to height and size of objects, and other
Information that, in combination with samples, photographs, and
other documentation, can produce an accurate and complete evidence
package.
Review should ensure that drawings and maps are simple and free of
extraneous details. Basic measurements and compass points should
be Included to provide a scale for interpretation.
• Mechanical Recordings. Records produced by an electronic or
mechanical apparatus are admissible in federal court. Review of
charts, graphs, and other "hard copy" should ensure relevance and
identity. The data collected should be identified by date of
collection, inspector's initials, and related sample number.
CAA Ccmpllance/Bnforceaent 4-12 Guidance Manual 1986
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Chapter Four Review of Adequacy of Evidence
Additional Sources of Documentation
Frequently, a complete review of the file will indicate the need for
additional information. In some cases, this information will be provided
by subsequent reports. If not, enforcement personnel should seek to obtain
the additional information or elaboration from the most knowledgeable
source. Additional sources of documentation Include:
• Inspector's Narrative Report;
• Inspector's Field Notebook; and
• Follow-up inspections and requests for information.
Further Processing of the Inspection File—Enforcement Case Review
Once the investigative file has been initially reviewed, further case
development may be necessary at Headquarters. If so, the file should be
sent to the appropriate Headquarters Office. Aspects of the case that
could require further processing include:
• Failure to comply with recordkeeping and reporting requirements;
• Scientific review to determine the significance of any discrepancy
in chemical composition, toxicity, or risk assessment;
• Relationship of the suspected CAA violation to other federal
environmental laws;
• New program elements for which policy interpretations must be
established; and
• New or existing programs in which information is normally kept on
file at Headquarters.
CAA Compliance/Enforceaent 4-13 Guidance Manual 1986
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Chapter Four Review of Adequacy of Evidence
CAA Grapliance/Knforceaent 4-14 Guidance Manual 1986
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5 Responding to Noncompliance
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Chapter Five
Responding to Noncompliance
Chapter Contents
Objectives 5-1
Priority Target Areas 5-2
Responses to Noncompllance 5-6
Considerations In Selecting an Appropriate Response 5-11
Ensuring Compliance with Response's Requirements 5-15
Exhibit 5-1: Stationary Source Compliance Process 5-16
CAA. Conpllaace/Boforcement 5-1 Guidance Manual 1986
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Chapter Five Contents
AA Co-pUaoce/Knforc«eat 5-ii Guidance Manual 1986
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Chapter Five
Responding to Noncompliance*
Objectives
The objectives of responding to noncorapliance problems are to ensure that
the problem is corrected quickly, to deter similar problems from arising,
to see that the law is applied equitably, and to punish misconduct by
source owners and operators.
The state (and local) air pollution control agencies have the primary
responsibility for monitoring and enforcing compliance with the State
Implementation Plans (SIPs). In those states where EPA has delegated its
authority to enforce the New Source Performance Standard (NSPS) and
National Emission Standard for Hazardous Air Pollutants (NESHAP) regula-
tions, the states have primary responsibility for monitoring and enforcing
compliance with these federal standards. State and local agencies conduct
regular inspections of stationary sources of air pollution within the state
which emit, or have the potential to emit, 100 tons per year of any
regulated pollutant. EPA refers to these major sources of air pollution as
"Class A" sources. The compliance status of these sources is reported to
EPA and is entered into a national computer data system, the Compliance
Data System (CDS). The EPA regional office is responsible for monitoring
compliance with NSPS and NESHAP regulations if that function has not been
delegated to a state. The EPA regional air program office is responsible
for tracking the compliance status of all sources in the region and
determining which sources to target for an EPA enforcement action, based on
national and regional enforcement priorities.
This chapter is excerpted from the EPA Compliance Strategy for
Stationary Sources of Air Pollution (November 1983). The complete
document is contained in the CAA Policy Compendium, General, at Tab H.
The excerpt has been updated to reflect developments since then and has
been adapted to the format of this manual.
CAA Compliance/Enforcement5^1Guidance Manual 1986
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Chapter Five -- _ _ Responding to Woacoa.pl lan
Priority Target Areas
The current system of priorities for responding to noncompliance problems
is primarily delineated by two memoranda. The first is the December 29,
1981, memorandum from Kathleen Bennett to the Regional Administrators
entitled "EPA Accountability Systera-OANR Policy Guidance" (see CAA
Compendium. General, at Tab B). - '
In an appendix to that memorandum, the term "significant violator" is
defined, and the statement is made that these significant violators should
be addressed. This policy was elaborated upon in a memorandum of June 24,
1982, to the Regional Offices', entitled "Significant Violators" (see CAA
Policy Compendium, General, at Tab E). Subsequently, the def initioTT oFT
significant violator was changed in a memorandum to the Regions (dated July
12, 1984) (see_, CAA Policy Compendium. General, at Tab J). Roughly speak-
ing, the following are sources to be given a high priority as significant
violators:
• Violators of NESHAPs other than the asbestos standards;*
• A Class A source in violation of a SIP if the source impacts a
nonattainment area and is In violation for the pollutant for which
the area is nonattainment.
• Violators of new source requirements (NSPS and requirements of
Parts C and D of the Act);
• Sources in violation of a federal consent decree or administrative
order; and
• Class A federal facility violators.
The purpose of establishing the significant violator program was to define
the Agency's highest priority sources for enforcement action, other than
emergency actions. In light of the special importance attached to these
sources, Regional Offices are required to report on a quarterly basis on
the status of efforts made by themselves and their states to resolve these
violations.
* Because of the transitory nature of asbestos demolition/renovation
activities, they are not easily susceptible to tracking under the
significant violator program. However, because of their environmental
significance, they are tracked in a separate system and enforcement of
violations is given high priority.
snt 5-2 Guidance Manual 1986
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Chapter Five __ __??9j>ondlng^_tp_ "_op_c
The list of significant violators is obviously dynamic, with sources being
added and deleted as violations are discovered and resolved. The initial
list established in March 1982 contained 482 sources. Since then more than
1,000 sources have been added and many have been resolved. As of December
31, 1986, the number of significant violators was 647. As EPA continues to
improve its information on the Identity and compliance status of sources of
volatile organic compounds (VOCs), the list will continue to grow before
enforcement efforts begin to turn this around.
It is generally accepted within the Agency that the significant violator
program forms a sound base for the Clean Air Act enforcement program. It
is expected that this concept will continue into the forseeable future,
with no changes anticipated.
The second major priority-setting memorandum is the Agency's Post-1982
Enforcement Policy, dated September 20, 1982 (see, CAA Policy Compendium,
Section 113, Tab R). This policy provides more detail for addressing SIP
violators in primary nonattalnment areas after December 31, 1982. (The
policy does not apply when the attainment deadline is after 1982, such as
in areas with Section I72(a)(2) extensions.)
In particular, the policy maintains that EPA or the states should seek
shutdown of sources subject to the policy unless:
• The public interest in continued operation of the source outweighs
the environmental cost of the additional period of noncompliance;
and
• The source has sufficient funds to comply expedltlously.
Further guidance on the Post-1982 Enforcement Policy was issued on January
12, 1983, in a memorandum from Kathleen Bennett and Robert Perry to the
Regional Administrators and Regional Counsels (see, CAA Policy Compendium,
Section 113, Tab S). This guidance clarified the policy in a number of
ways, most importantly in providing further detail on criteria to be
applied when reviewing state actions for possible overflling. This supple-
mental guidance also directed the Regional Offices to Issue Notices of
Violation to all sources to which the policy applied, Including state-lead
cases, so that EPA would be In a position to act quickly if state action
should ultimately prove Inadequate. Finally, guidance Issued January 11,
1984 by the Deputy Administrator eliminated the requirement for stipula-
tions contained in the original Post-82 Enforcement Policy and permitted
the use of consent decrees for the purpose of settling these cases.
EPA may defer to a state judicial order or administrative order (other than
a delayed compliance order) if the order contains, at a minimum, the
following key elements:
• The source commits to an expeditious schedule to come into
compliance with the applicable SIP (or RACT, if no Part D plan Is
in force);
CAA Covpllance/Bnforceaent 5-3 Guidance Manual 1986
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Chapter Five Re a pond log to Noacoapl lance
• The compliance schedule contains enforceable increments of
progress;
• The order includes reporting requirements, including reporting to
the state and, if a judicial order, to the court, of completion of
each increment;
• The order treats limited-life facilities in a manner that is
consistent with EPA guidance; and
• The order requires payment of a significant cash penalty.
When EPA brings an enforcement action against a source that is subject to
the Post-1982 Enforcement Policy, it will usually take the form of a civil
action under Section 113(b) because this is the only enforcement tool that
permits EPA to obtain civil penalties and a court-ordered compliance
schedule. If the Agency decides to seek shutdown of the source, the
consent decree or court order should be consistent with the Enforcement
Policy Respecting Sources Complying by Shutdown, issued on November 27,
1985 (see, CAA Policy Compendium, General, at Tab L). If the Agency
decides to permit the source to continue to operate while coming into
compliance, EPA will seek a consent decree or court order that, at a
minimum, incorporates the following requirements:
• An expeditious schedule with increments of progress to comply with
the SIP, or RACT If no Part D plan is in force where one is
required;
• Interim emission limitations and controls to the extent
practicable;
• Monitoring and reporting requirements;
• Stipulated penalties, at least for violations of the compliance
schedule, and interim controls;
• Provisions preventing Increases of emissions;
• Payment of a significant cash penalty, with total civil penalties
reflecting the criteria of the Clean Air Act Stationary Source
Civil Penalty Policy; and
• An express reservation of the right to seek injunctive relief,
including shutdown, if the source does not comply with the order.
Since the policy was established, EPA has been working closely with the
states to ensure its successful implementation. A high proportion of the
sources that were determined to be subject to the policy either have come
into compliance, have been put on a compliance schedule, or have an
enforcement action pending against them. Of course, as with the signifi-
cant violator program, new violators are continually being Identified so
CAA Compliance/Enforcement 5-4 Guidance Manual 1986
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Chapter Five Responding to Noncoapllance
that the overall number of identified violators is not necessarily decreas-
ing. In fact, It Is Increasing as VOC compliance inventories and data
become more complete.
Because of the importance of the significant violator and Post-1982
Enforcement Policy concepts In the enforcement program and because they are
different yet partially overlapping, it would be worthwhile to summarize
the main points of each for comparison purposes.
Significant Violators
• A priority-setting mechanism to assist the Regions and states in
targeting their resources to achieve the greatest environmental
benefit;
• A defined universe used for tracking regional program performance
In the Strategic Planning Management System;
• Sources are not subject to any particular substantive Agency poli-
cies based solely on their status as significant violators.
Sources on the list may be subject to any of a number of
substantive Agency policies;
• Includes NSPS, NESHAP, and PSD (Prevention of Significant
Deterioration requirements) violators, and violators of Part D
nonattainment permitting requirements;
• Includes SIP sources in secondary nonattainment areas as well as
primary nonattainment areas; and
• Generally Includes only Class A SIP violators that impact
nonattainment areas.
Post-1982 Enforcement Policy
• The sources subject to the Post-1982 Enforcement Policy are all
Class A SIP sources located in areas that are designated primary
nonattainment for one or more pollutants for which the emission
limitations are being violated (unless subject to an attainment
date later than December 31, 1982).
Thus, some degree of overlap exists between sources that meet the signifi-
cant violator definition and sources subject to the requirements of the
Agency's Post-1982 Enforcement Policy. However, they are distinct
universes that have been established to serve different purposes.
VOC sources are of concern because of their contribution to ozone non-
attainment areas, many of which will not be attained by the end of 1987.
For the next few years, efforts will be substantially Increased to enforce
VOC control requirements due to the millions of people exposed to the
health effects of urban smog.
CAA Conpllance/Enforceaeat 5-5 Guidance Manual 1986
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Chapter Five Responding to Noncompllance
In addition to the priorities set by the documents cited above, several
other aspects are important to note. The highest priority should be given
to any emergency episode that may arise as defined in Section 303 of the
Act. Expanded guidance for response under Section 303 was sent to Regional
Offices on September 15, 1983, and is included in the CAA Policy Compendium
at Section 303, Tab A. The essential point to note about this guidance is
that It urges a broader consideration of the use of Section 303 authority.
In the 1970s, emergency episodes (and thus use of Section 303) were viewed
almost entirely in the context of high levels of criteria pollutants under
adverse meteorological conditions. This occurs only infrequently these
days, at least for pollutants associated primarily with stationary
sources. However, the public Is increasingly aware of the serious threats
presented to public health by various toxic substances emitted to the air.
EPA should foster a broader awareness of the possible use of Section 303 as
a mechanism to address, in proper circumstances, the dangers presented by
such emissions.
Similarly, special note should be made of enforcement against violators of
hazardous air pollutant standards. This will consist primarily of
continued enforcement of vinyl chloride standards, asbestos demolition and
renovation standards, standards for volatile hazardous air pollutants
(benzene and vinyl chloride), and Initial implementation of newly prom-
ulgated NESHAPs.
Finally, priority should be given to addressing violations of Section 114,
which sets out the Agency's information-gathering authority, because that
authority is so basic to EPA's ability to set and enforce the substantive
requirements called for by the Act.
Note that these priorities reflect considerations at the national level.
Obviously, conditions at the state and local levels vary widely. The
listing of these national priorities should in no way be interpreted as
condoning a failure to address other important air quality problems, such
as violating sources in attainment areas, to the extent consistent with
other priorities and available resources.
Responses to Noncompllance
When EPA or a state learns of a noncompliance problem with a source that
meets the "significant violator" definition, in most cases the source
immediately becomes subject to the enforcement time lines established in
the annual state-EPA agreements. These agreements establish time lines for
when action should be taken and define what Is an acceptable action. If a
state takes the lead, EPA should understand what action the state is
contemplating and the timetable for the action so it can make a reasoned
judgment on deferral to the state. Monitoring of the state action is
required under the state-EPA agreements and should be done monthly. The
state is allowed 120 days to bring a source into compliance or to take
CAA Compliance/Enforcement5^6Guidance Manual 1986
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Chapter Five Responding to Noncompliance
appropriate state action. The following are examples of acceptable
actions:
• Obtaining a legally enforceable state administrative or judicial
order that includes an expeditious compliance schedule and
appropriate civil penalties;
• Referring a case to the state Attorney General's Office; or
• Developing and scheduling for public hearing a proposed SIP
revision that has already been reviewed and found likely to be
approved by EPA regional staff.
If the state has not taken an acceptable enforcement action within 120
days, EPA will issue a Notice of Violation (NOV) to position itself for
enforcement action. Should EPA take over the lead (or have the lead from
the onset), EPA must similarly take appropriate action within 120 days.
Appropriate action would mean (I) bringing the source Into compliance; (2)
putting the source on a Section 113(a) order, a DCO, or a Notice of
Noncorapliance under Section 120; or (3) referring a case to the Department
of Justice. Penalties must also be part of any action, where appropriate.
See the Guidance on Timely and Appropriate EPA/State Enforcement Response
for Significant Air Violators, Issued June 28, 1984 and revised April 11,
1986 (located in the CAA Policy Compendium, General, Tab I and Tab Q).
Exhibit 5-1 provides a simplified flow diagram of the formal enforcement
process.
Section 114 Information Gathering
When a Regional Office decides to initiate an administrative or civil
action against a violating source, the Region frequently must Initially
obtain information from the source that will support the enforcement
action. EPA may use its information-gathering authority under Section 114
of the Act to require the source to provide the Agency with information
concerning its compliance status. Section 114 of the Act authorizes EPA to
require sources to establish and maintain records, install and use monitor-
ing equipment, perform emission tests, admit inspectors, and, in general,
provide the Information EPA needs to determine whether the source is in
compliance. Once the response to the Section 114 letter is analyzed, an
inspection of the source to document the violation more thoroughly is often
required.
Notice of Violation
To begin an administrative or civil enforcement action relating to a SIP
violation, EPA must issue a Notice of Violation (NOV) under Section 113(a)
of the Act. Once EPA has issued an NOV, the violator has 30 days to remedy
the violation. No prosecution can occur if the violating source comes into
compliance within the 30 days following the Issuance of an NOV. Chapter
Six discusses NOVs in greater detail.
CAA Coopllance/Bnforceaent 5-7 Guidance Manual 1986
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Chapter Five Responding to Noncoapllance
EPA may use Its Information-gathering authority under Section 114 of Che
Act to determine whether a violation continues to exist 30 days after the
Issuance of an NOV. A follow-up inspection can be performed to document
the continuing violation where required. In addition, If the Section 113
conference with the source to discuss the NOV is held more than 30 days
after the issuance of the NOV, an admission from the source might be sought
at the conference. If a SIP violation persists beyond 30 days, EPA may
issue an administrative order under either Section 113(a) or Section 113(d)
or initiate a civil judicial action under Section 113(b).
An NOV Is not required In cases of NSPS or NESHAP violations. EPA may
issue an administrative order or Initiate a civil judicial action as soon
as the violation is discovered. In addition, for certain new source
violations as discussed below, an administrative order may be issued or
judicial action initiated under Section 167.
Immediate Compliance Orders Under Section 113(a)
A Section 113(a) order Is an administrative enforcement mechanism that is
often effective in bringing a source into compliance quickly. It Is most
effective where operation and maintenance problems exist. Reading Section
113(a) in conjunction with Section 110(1) and Section 113(d), it appears
that there are strict limits on the extent to which Section 113(a) orders
can be used for SIP violators. Thus, EPA has concluded that such orders
must require immediate compliance, defined as within 30 days of the effec-
tive date of the order. This limit does not apply to NSPS and NESHAP
violators. For these sources, a longer period may be granted in a Section
113(a) order, but only when the need for additional time arises from
circumstances beyond the control of the source (i.e., force majcure
situations). These concepts are discussed in more detail in an April 30,
1982, memorandum from Kathleen Bennett to the Regional Administrators
entitled "Duration of Section 113(a) Orders" (see, CAA Policy Compendium,
Section 113, Tab 0).
Section 167 and 113(a)(5) Orders
Another type of administrative enforcement mechanism is that used to halt
Illegal construction of a new or modified source in violation of Part C or
Part D of the Act. For violations of the Prevention of Significant
Deterioration (PSD) requirements in Part C, the appropriate order to be
issued is one under Section 167. Such an order can be Issued against:
• A major emitting facility if it should have obtained a PSD permit
but has not;
• A source being constructed or operated pursuant to a state-issued
PSD permit that conflicts with the requirements of the Clean Air
Act, Implementing regulations, or approved SIP requirements; and
CAA Coapllance/Bnforceaent 5-8 Guidance Manual 1986
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Chapter Five Responding to Nbncompllance
• A state, If EPA has delegated the PSD program to the state and the
state is about to issue a PSD permit EPA believes is inconsistent
with Part C or its Implementing regulations.
Detailed guidance concerning the use of Section 167 was Issued December 14,
1983, and is included In the CAA Policy Compendium at Section 167, Tab A.
For violations of the new source review requirements of Part D, an avail-
able administrative enforcement mechanism Is a Section 113(a)(5) order.
This section requires the Administrator to make a finding that a state Is
not acting in compliance with the regulations referred to In Section
129(a)(l) of the Clean Air Act Amendments of 1977 (the offset ruling) or
any plan provisions required by Section 110(a)(2)(I) and Part D. Once this
finding is made, EPA may issue an order under Section 113(a)(5) to a major
source, requiring it to refrain from or cease construction unless a valid
permit is obtained from the state.
Authority to issue Section 113(a) and Section 167 orders has been delegated
to Regional Administrators. Issuance of a Section 113(a)(5) or Section 167
order requires consultation with the Director, Stationary Source Compliance
Division, and the Associate Enforcement Counsel for Air Enforcement at EPA
Headquarters. Issuance of a Section 113(a) order other than under Section
113(a)(5) requires no consultation with Headquarters.
If a source does not obey a Section 113(a) or Section 167 order or if EPA
decides that a civil action is needed, the Agency may proceed in the courts
under either Section 167 or Section 113(b). EPA may ask for any necessary
injunctive relief under either section and, under Section 113(b), may seek
civil penalties of up to $25,000 per day of the violation. A Section 167
action, unlike one under Section 113(b), does not require a Notice of
Violation and documentation of a 30-day continuing violation.
Delayed Compliance Orders
Section 113(d) of the Act provides EPA and the states with another adminis-
trative remedy, known as a Delayed Compliance Order (DCO). Under a DCO,
EPA or a state may establish a schedule that requires compliance no later
than three years after the source's SIP compliance date. (State-issued
DCOs to major sources require EPA approval to be effective as a DCO.) A
source that has been granted a DCO and that is in compliance with the terms
of that order is not subject to further enforcement action under Section
113 for violations during the period of the DCO. However, major stationary
sources can be required to pay a noncompllance penalty under Section 120
(see below), notwithstanding the DCO.
Because of the three-year limit for a DCO previously noted, there are
relatively few sources eligible for DCOs for partlculate matter or sulfur
dioxide emission limit violations. Most of those limits were accompanied
by SIP compliance deadlines more than three years past. Similarly, SIP
compliance deadlines passed more than three years ago for most sources
CAA Coopllance/Enforceaent 5-9 Guidance Manual 1986
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Chapter Five Responding to Nonconpllance
subject to VOC regulations. However, In limited circumstances, some VOC
sources are eligible for DCOs due to SIP compliance deadlines in 1984 or
beyond.
Section H3(d)(4) and Section 113(d)(5) provide for two special types of
DCOs. Under Section 113(d)(4), a DCO may be issued to a source to foster
the development of Innovative technology. Section 113(d)(5) allowed
sources burning oil or natural gas to convert to burning coal and delay
compliance with applicable SIP requirements until December 31, 1985.
Nonferrous smelter orders under Section 119 of the Clean Air Act are
another type of delayed compliance order. See Chapter Six for further
discussion of DCOs.
Before EPA issues a DCO, the source must meet the eligibility requirements
in Section 113(d) of the Act. States may also issue DCOs but, as previous-
ly noted, any DCO issued to a major source requires EPA approval before it
is effective.
Guidance regarding DCOs appears in various Agency memoranda, the most
significant of which were compiled in an April 26, 1983, memorandum from
Kathleen Bennett and Courtney Price to the Regional Administrators and
Regional Counsels (see, CAA Policy Compendium, at Section 113, Tab T).
Regulations regarding the promulgation of DCOs and lists of all DCOs
issued, approved or disapproved by EPA are codified at 40 C.F.R. Part 65.
It should be clear from the description of the Agency's administrative
order authority that such orders are limited and cannot be used to address
many of the violations EPA faces. Therefore, many of the EPA enforcement
actions will come in the form of Section 120 proceedings (described next)
or civil actions filed in federal district courts.
Section 120 Penalties
In cases where a source is not in compliance with emission requirements,
EPA may also seek noncompliance penalties under Section 120 of the Act.
(See Chapter Eight.) EPA may seek these penalties in addition to any
relief under Section 113 of the Act. Section 120 is designed to recapture,
in an administrative proceeding, the economic savings realized by sources
in violation of applicable emission limits. While Section 120 is, by its
terms, a penalty provision only, the prospect of a Section 120 penalty can
often serve as a useful stimulant to prompt a source to come into
compliance.
EPA initiates an action under Section 120 by issuing to the source a Notice
of Noncompliance (NON). Although adjudicatory hearings may occur before a
source must pay a penalty, the penalty starts to accrue from the date EPA
issued the Notice of Noncorapliance. Consequently, it is often in the
source's best interest to achieve compliance expeditlously and not frivo-
lously use the administrative hearing process as a mechanism for delaying
achieving compliance.
CAA Compliance/Enforcement 5-10 Guidance Manual 1986
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Chapter Five Responding to Noncompllance
Section 306 List of Violating Facilities
One other possible sanction is the listing program under Section 306. It
enables EPA to prevent a violating source from receiving any federal con-
tracts, grants, or loans by placing it on the List of Violating
Facilities. This program is coordinated by the Legal Enforcement Policy
Division of the Office of Compliance Analysis and Program Operations in
OECM at EPA Headquarters. It is important to note that listing under
Section 306 is mandatory for facilities that are the subjects of criminal
convictions where the underlying violations have not been corrected.
Section 306(c), as implemented by Executive Order 11738, authorizes EPA to
place a facility on the list of violating facilities when the Agency has
made a determination in an administrative proceeding called a "listing
proceeding" that there is a record of continuing or recurring noncompliance
with clean air standards at the facility. EPA regulations governing list-
ing proceedings are codified in 40 C.F.R. Part 15. Guidance on implement-
ing the mandatory listing program was issued on August 8, 1984. (See
General Enforcement Policy Compendium, No. GM-23. See also CAA Policy
Compendium, Section 306.) Final guidance on implementing the discretionary
listing program was issued on November 26, 1986. The facilities listing
program can be an effective administrative tool to obtain compliance where
other administrative or Judicial enforcement actions have failed.
Federal Facility Compliance
It should be noted that Section 118 of the CAA requires that federal
facilities shall be subject to and comply with all applicable federal and
state air pollution control requirements. As noted earlier, Class A
federal facilities that violate a SIP meet the definition of a significant
violator. EPA should respond promptly and vigorously to any violations
under the same priorities established in the state-EPA agreements for other
sources, making full use of the mechanisms of Executive Order 12088 and
implementing procedures established by the Agency's Office of Federal
Activities. (See General Enforcement Policy Compendium, No. GM-25.) State
and local agencies are also encouraged to participate in the program to the
maximum extent possible.
Considerations in_Selecting an Appropriate Response
This section discusses considerations in selecting the appropriate vehicle
for a federal enforcement response once the decision has been made that a
federal response is appropriate. It is not intended to be prescriptive in
nature, given that selection of a response must be based on a reasoned
evaluation of all the circumstances of the case.
CAA Compliance/Enforcement 5-11 Guidance Manual 1986
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Chapter Five Responding to Noncoapliance
Criminal Actions Under Section 113(c)
As previously noted, the first judgment to be made is whether to pursue a
criminal action. While simultaneous civil and criminal actions are not
prohibited, they should generally be avoided.
Priorities for criminal enforcement should include the following:
• Knowing violations of SIPs that result in, or threaten, significant
environmental contamination or human health hazard;
• Knowing violations of WESHA? requirements; and
• Falsification of records or tampering with monitoring devices that
have, or could be expected to have, a significant impact on EPA's
regulatory process or declsionmaklng.
These priorities were set forth in an October 12, 1982, memorandum from
Robert Perry to Regional Counsels entitled "Criminal Enforcement Priorities
for the Environmental Protection Agency." (See General Enforcement Policy
Compendium, No. GM-14.)
Two other areas also deserve serious consideration for criminal Investiga-
tion—criminal contempt for willful violations of civil consent decrees
[punishable under 18 U.S.C. §401(3)] and violations of reporting require-
ments Imposed by Section 114 letters.
Chapter Nine describes criminal actions in greater detail.
For the large majority of cases, a criminal action would not be an appro-
priate response. Therefore, the other options detailed in the preceding
section should be considered.
In deciding between administrative orders and civil actions, judgments
should reflect a consideration of the likely effectiveness of each option
rather than artificial notions of "toughness." In the proper circum-
stances, an administrative response can be as effective as a judicial one.
Use of Section 113(a) Orders
In considering the use of a Section 113(a) order, the major factor is
whether compliance can reasonably be required within 30 days. (Note that
in the case of an NSPS or NESHAP violation, this limitation does not apply
if the violation arises from a force majeure event.)
In cases where compliance can be required within that period, a Section
113(a) order is often the best response since it can be issued simply and
quickly. However, a Section 113(a) order should normally be used only
where compliance with such order is expected.
CAA CoHpliance/Enforceaent 5-12 Guidance Manual 1986
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Chapter Five Responding to Noncompliance
If It Is felt Chat the source will not comply with the order, it probably
would be better to select another option. This is especially true if the
Regional Office believes that the source may attempt to challenge the order
in a Court of Appeals under Section 307(b)(l) as a final Agency action.
While EPA does not believe such a challenge can be made successfully,
actions that Invite collateral lawsuits at the Court of Appeals level
should be avoided whenever possible.
Where a Section 113(a) order is not appropriate, the election generally
will be from among a DCO, a Section 120 action, and a civil action. (This,
of course, presumes that a OCO is available.)
Use of Delayed Compliance Orders
If a DCO is available, its use by EPA is the most appropriate in cases
where a source requires additional time to comply due to an unforeseen in-
ability to comply and is acting in good faith to meet its emission require-
ments. This is because EPA has not routinely sought to file a civil action
for penalties against a source being issued a DCO for the period before the
DCO is issued, although this is legally permissible. As noted in the July
27, 1978 guidance on use of Section 113 orders (included as part of the CAA
Policy Compendium. Section 113, Tab T):
The issuance of delayed compliance orders by either the States or
EPA is discretionary. In exercising its discretion, EPA will
consider any past compliance efforts and any prior State or
Federal enforcement actions Involving the source. If, based on
these and other relevant factors, EPA determines that the source
is one with an egregious history of noncompllance, recalcitrance,
or environmental harm and/or that court supervision is likely to
be required in order to assure expeditious compliance, the source
will be considered an appropriate candidate for civil or criminal
action and no Federal delayed compliance order will be Issued.
Consequently, there will be no category of cases involving a
federally Issued delayed compliance order and a Federal court
action relating to Che predelayed compliance order period. EPA
will continue to urge the State to adopt a similar approach in
exercising their discretion. However, EPA approval or disapproval
of a State delayed compliance order will be based on the
statutory criteria of Section Il3(d). (pg. 5)
Another major factor in deciding whether to use a DCO is the policy that
EPA will not issue a DCO unless the source formally consents to its
issuance. The previously referenced July 27, 1978 guidance states:
A delayed compliance order will not be issued unless the source
Indicates in writing (by signature of appropriate persons autho-
rised to agree for the source) that it will agree to comply with
the delayed compliance order. Source consent will be required
for all Federal delayed compliance orders and is recommended for
CAA CoBpliance/Bnforceaent 5-13 Guidance Manual 1986
-------
Chapter Five Responding to Noncoapliance
State delayed compliance orders as well. However, a source's
agreement to comply is not precondition to EPA approval of a
State delayed compliance order, (pg. 7)
The purpose of this consent provision is to give greater assurance that the
source will comply and to minimize the possibility of a successful collat-
eral challenge under Section 307(b)(l).
Use of Section 120 Orders
As an alternative to or in conjunction with a DCO, a Section 120 action
should be considered. Because the amount of the Section 120 penalty is
directly related to the length of the period of noncorapliance following the
issuance of a Notice of Noncorapliance, it can serve as a powerful tool for
prompting source compliance. However, this requires a judgment on the part
of the Regional Office of how the source is likely to respond. Where the
source is not likely to respond positively, and injunctive relief will
still be required, it is preferable to avoid the use of Section 120 and go
directly to a Section 113(b) civil action for both injunctive relief and
civil penalties. In addition, because issuance of a Notice of Noncompli-
ance can lead very quickly to an adjudicatory hearing, a notice should not
be issued unless the Regional Office is prepared to proceed with such a
hearing.
One circumstance in which a Section 120 order can be particularly useful is
where the state has put the source on an acceptable schedule but has not
collected penalties where penalties would be appropriate. EPA could defer
to the state schedule in obtaining compliance and use the administrative
mechanism of Section 120 to address the penalty issue in lieu of bringing a
court action. In deciding between a Section 120 action and a court action,
practical considerations such as how crowded the court docket is, the
receptivity of the district court judges to environmental litigation, and
the readiness of the Regional Office to handle an almost immediate adjudi-
catory hearing should be carefully weighed.
Chapter Eight describes the Section 120 authorities in greater detail.
Use of Section 113(b)
Civil actions under Section 113(b) are most advantageous in the following
situations:
• A compliance schedule or other injunctive relief is necessary and
an administrative order Is unavailable or inappropriate;
• The compliance history of the source suggests that the schedule
should be subject to court supervision and contempt remedies; and
• Substantial civil penalties for past violations are appropriate.
(Note that in most cases, maximum penalties under Section 113(b)
will be substantially greater than those under Section 120 because
CAA Compliance/Eoforceaent5-14Guidance Manual 1986
-------
Chapter Five Responding to Noncoapliaace
of the large per-day amount and because Section 120 penalties run
only from the date of the Notice of Noncorapliance while Section
Il3(b) penalties are calculated back to the earliest date of
provable violation.)
Chapter Seven describes the Section H3(b) authority in greater detail.
Ensuring Compliance with Response's Requirements
After federal enforcement actions are resolved, EPA Regional Offices have
the responsibility of monitoring the source's activities to ensure compli-
ance with the terras of any administrative or court order. The Agency's
Compliance Data System (CDS) has the capability of serving as a tickler
file for keeping track of interim and final compliance dates in schedules.
It is used by Regional Offices for this purpose. In addition, a
computerized system has been developed by the Agency's National Enforcement
Investigations Center (NEIC) for tracking court-ordered schedules.
Regional Offices must conduct monitoring activities for their schedules
sufficient to detect any failure to keep to the terras of the order. No
detailed guidance is being provided here for this given that Regional
Offices have extensive experience with schedule-tracking and because the
monitoring effort reflects a case-by-case evaluation of the schedule itself
and all the associated circumstances. When serious failures are detected,
taking remedial action should be a very high priority, second only to
emergency actions under Section 303. This is because such flouting of
environmental requirements tends to undermine the entire regulatory
framework, particularly if the violator is repeatedly unresponsive.
In order to enhance the enforceability of EPA's consent decrees, the Agency
has developed model consent decree provisions (see, General Enforcement
Policy Compendium GM-17 and GM-27). Some of the most important features to
be included are:
• Various increments In compliance schedules, so that source progress
can be monitored. This avoids the situation of sudden discovery
that the source is far behind its schedule. These milestones
should be Incorporated Into CDS for easier tracking;
• Reporting requirements, again to monitor source progress; and
• Stipulated penalties, to provide an economic incentive for sources
to meet incremental dates, as well as the final compliance date in
the decree.
Post-settlement monitoring and enforcement is the topic of Chapter Ten.
CAA Compliance/Enforcement5-15Guidance Manual 1986
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6 Administrative Actions: NOV & AOs
-------
Chapter Six
Administrative Enforcement Actions:
Notice of Violation and Administrative
Orders
Chapter Contents
1 Introduction 6-1
2 Administrative Enforcement Procedures 6-3
Notices of Viola tion 6-3
Immediate Compliance Orders 6-8
Delayed Compliance Orders 6-10
Primary Nonferrous Smelter Orders 6-11
Orders Under Section 167 to Major Emitting Facilities 6-11
Orders Issued Pursuant to Section 303 Emergency Powers 6-12
CAA Conpliance/Eoforcenent 6-i Guidance Manual 1986
-------
Chapter Six Contents
CAA Coapllance/Enforceaent 6-11 Guidance Manual 1986
-------
Chapter Six
1 Introduction
Sections 113(a), 113(d), 119, 167, and 303 of the Clean Air Act provide
EPA with an array of administrative enforcement mechanisms for dealing with
both special situations and relatively easily corrected violations. The
administrative order is frequently the most expeditious approach to
compliance. Generally, the Agency prefers the administrative order
approach for resolving a compliance problem to avoid the resource commit-
ments of litigation. Violators often prefer the administrative order
approach to avoid the stigma and potential penalties associated with being
a federal district court defendant. Administrative orders, however, cannot
be employed to resolve every type of violation.
CAA Coapliance/Knforceaent 6-1 Guidance Manual 1986
-------
Chapter Six Introduction
CAA Compliance/Enforcement 6-2 Guidance Manual 1986
-------
Chapter Six
2 Administrative Enforcement Procedures
Notices of Violation
Section H3(a)(l) provides:
Whenever, on the basis of any information available to
him, the Administrator finds that any person is in vio-
lation of any requirement of an applicable implemen-
tation plan, the Administrator shall notify the person
in violation qf the plan and the State in which the
plan applies of such findings. If such violation
extends beyond the 30th day after the date of the
Administrator's notification, the Administrator may
issue an order requiring such person to comply with the
requirements of such plan or he may bring a civil
action in accordance with [Section 113(b)].
Purpose of the Notice of Violation
The Notice of Violation (NOV) serves several practical purposes in the
compliance and enforcement program, In addition to having legal
significance in certain cases. Because sometimes the owner/operator of a
facility that is in violation of an applicable requirement does not know
that a violation Is occurring, an NOV may serve to draw the
owner/operator's attention to the problem.
In some cases, a facility owner/operator may ignore a violation because of
the cost associated with correcting the violation and the belief that "no
one will notice." Receipt of an NOV may persuade such an owner/operator to
reevaluate the situation and to rectify the problem.
In other cases, an owner/operator may wish to comply with the law but does
not know what the law requires. An NOV can serve to clarify the legal
obligations imposed by the Act. The NOV also notifies the state of the
problem, which may prompt the state to commence enforcement action.
CAA Goapl lance /Enforcement 6-3Guidance Hanual 1986
-------
Chapter Six Administrative Enforcement Procedures
Finally, the NOV serves a critical legal function In that It Is a
procedural prerequisite to Issuing a Section 113(a) compliance order for
SIP violations and to establishing federal district court jurisdiction over
SIP violations. (Note that the procedural prerequisite applies only to SIP
violations.) The issuance of an NOV serves as the starting point In the
determination of when a SIP violation "has continued beyond the 30th
day."
Section H3(a)(3) permits orders and civil actions to remedy violations of
Sections 111, 112, and 114 based merely on "any information available" to
the Administrator (I.e., It does not require the Issuance of an NOV nor
does It require that a violation continue beyond 30 days). Section 113(b),
which lists federal district court causes of action, refers to the NOV
subsection only in connection with SIP violations. Nevertheless, it Is EPA
practice to Issue some form of notice in all cases absent countervailing
considerations. One example of a countervailing consideration would be the
need to take immediate action to prevent continuing emissions of hazardous
air pollutants In quantities that pose a high risk to humans In a densely
populated area.
Contents of an NOV
The statute does not set forth any specific requirements for the content of
an NOV. The Agency, however, has followed the practice of Including the
following elements in most NOVs:
• Specific reference to the legal standard that has been violated.
Acceptable: Indiana APC-3 prohibiting emissions In excess of
40 percent opacity at any time, codified at (cite
to regulation).
Unacceptable: The visible emission standard.
• Specific reference to the source In violation of the standard.
Acceptable: "The combustion stack associated with Coke Battery
No. 1."
Unacceptable: "The combustion stack."
• The factual basis for the NOV, Including the date, time, and
evidence of the violation.
Acceptable: "On the basis of opacity readings taken In
accordance with EPA Reference Method 9 (40 C.P.R.
Part 60, Appendix A) between the hours of 3:00 and
3:50 p.m. on December 17, 1983, EPA observed 24
exceedances of the applicable standard ranging
from a low of 50 percent opacity to a high of 100
percent opacity, and an average opacity of 60
percent.
CAA Goapllance/Hnforceaent 6-4 Guidance Manual 1986
-------
Chapter Six Administrative Enforcement Procedures
Unacceptable: "Our recent Inspection Indicates persistent
opacity problems."
• An explanation of further administrative or judicial action that
can be taken if the source does not comply.
Acceptable: "Section H3(a) of the Clean Air Act permits EPA
to issue an administrative order requiring compli-
ance with applicable standards. In addition,
Section 113(b) authorizes EPA to initiate a civil
action in U.S. district court for injunctlve
relief or to recover a $25,000 civil penalty per
day of violation, or both, if the Administrator
finds that the violation has continued beyond the
30th day after this notification. Moreover,
Section 113(c) authorizes the initiation of
criminal prosecution of knowing violations."
Unacceptable: "If EPA finds that this violation has continued
beyond the 30th day from this notification, EPA
can order you to comply or take you to court."
• An indication that (1) the source may confer with EPA officials
concerning the violations within 30 days of the notification; (2)
the source is entitled to the presence of an attorney if he or she
so desires; and (3) a tape recording of any such conference will be
made.
• The name, address, and telephone number of the EPA official to be
contacted concerning the scheduling of a conference.
• The signature of the properly delegated EPA official.
Many Regional offices have a standardized NOV.
Issuing the NOV
NOVs are issued under the signature of the director of the Regional Office
air program division after consultation with the Office of Regional Counsel
or by the Regional Administrator depending upon Regional Office practice.
The NOV is sent by certified mail, return receipt requested, or by personal
service (although the latter method is not the Agency's practice). Usual-
ly, an NOV is issued to a corporation, so it Is important that the NOV is
addressed to the appropriate company official. Normally, that official is
the president of the company, although sometimes it may be a plant manager
or an attorney.
Section Il3(a)(l) requires that the state also be notified. In some cases,
a State/EPA Memorandum of Agreement may require state notification prior to
Issuing the NOV. Section 113(a)(4) requires that, whenever an NOV or an
order is issued to a corporation under Section 113(a), a copy of the notice
or order shall be issued to "the appropriate corporate officers." (See CAA
CAA Compliance/Enforcement 6-5 Guidance Manual 1986
-------
Chapter Six Administrative Enforcement Procedures
Policy Compendium, Section 113, Tab BB, for guidance on complying with the
notification requirements of Section H3(a).)
The issuance of the NOV should be duly noted in the Region's Compliance
Data System, as well as in the case file for the facility.
Issuance of an NOV; Mandatory or Discretionary?
Federal courts have not ruled consistently on the question of whether the
Section 113(a) phrase, "the Administrator shall notify the person in viola-
tion," commands the issuance of an NOV or whether it is a discretionary
action.
EPA's interpretation of its authority has fared relatively well in the
courts. Courts Interpreting Section 113(a) of the Clean Air Act (as
amended in 1977) agree that, whatever the case before 1977 [see Kentucky
v. Ruckelshaus, 362 F. Supp. 360 (D. Ky. 1973), aff'd. 497 F.2d 1172 (6th
Cir. 1974), aff'd, 426 U.S. 167 (1976)], EPA's duty to take enforcement
action is mandatory where it has first made a finding of a violation by a
major stationary source. [See, e.g., Council of Commuter Organizations v.
M.T.A., 683 F. 2d 663 (2d Cir. 1983)]. They differ as to whether EPA must,
upon learning of facts potentially Indicative of violation, decide whether
a violation has in fact occurred. Such a finding is a statutory prerequi-
site to the mandatory duty to enforce findings of violation. Section
113(a). Most courts, however, have agreed with the court in City of
Seabrook v. Costie. 659 F.2d 1371, reh. den. 665 F.2d 347 (5th Cir., 1981),
which held that EPA's duty to make such a finding was discretionary.
Therefore, the court held that Section 304 provided no basis for action to
compel agency action and suggested that EPA's exercise of that discretion
might be entirely unreviewable. 659 F.2d at 1374. The Seabrook court's
holding follows the pre-1977 (but still precedential) decision In New
Mexico Citizens v. Train, 6 ERG 2061, 2065 (D. N.M. 1974) and distinguishes
the pre-1977 decision In Wisconsin's Environmental Decade Inc. v. Wisconsin
Power and Light Co., 395 F. Supp. 313 (W.D. Wise. 1975) (holding that EPA's
duty to make a finding upon receipt of Information is nondlscretionary).
Courts have interpreted the Clean Water Act's duty to find a violation
similarly. The duty to take enforcement action upon a finding of violation
Is clearly mandatory. South Carolina Wildlife Federation v. Alexander, 457
F. Supp. 118 (D.S.C. 1978). The South Carolina court is one of the few
that have also held that the Administrator's duty to make a finding (one
way or another) was mandatory ("[T]o hold otherwise would vitiate the
[statutory] scheme," 457 F. Supp. at 130). In so holding, the court was
clearly influenced by the decision in Wisconsin's Environmental Decade,
supra. 457 F. Supp. at 132. Illinois v. Hoffman. 425 P. Supp. 71 (S.D.
111. 1977); U.S. v. Phelps Dodge Corp.. 391 F. Supp. 1181 (D. Ariz. 1975).
Several courts have held, however that the duty to find a violation Is not
mandatory: e.g., Sierra Club v. Train, 557 F.2d 485 (5th Cir. 1977)
(discussed by the South Carolina court) and Cladwe11 v. Gurley Roofing Co.,
533 F. Supp. 252 (E.D. Ark. 1982).
CAA Coapllance/Enforceaent 6-6 Guidance Manual 1986
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Chapter Six Administrative Enforcement Procedures
The decisions that found EPA's duty to make a compliance finding discre-
tionary (Seabrook, Sierra Club) rest on the Agency's need to maintain
control over limited enforcement resources In the face of the Impossibility
of "full enforcement." Courts have usually considered a task's "Impossibi-
lity" a reason for withholding the equitable remedy otherwise available for
Agency failures to execute mandatory duties. See, e.g., Alabama Power Co.
v. Co3tie. 636 F.2d 323 (D.C. Cir. , 1979); N.R.D.C. v. Train. 510 F.2d 692
(D.C. Cir., 1975); South Carolina Wildlife Federation v. Alexander. 457 F.
Supp. 118 (D.S.C. 1978); Sierra Club v. Gorsuch. 551 F. Supp. 785 (N.D.
Calif. 1982); New York v. GorsuchTTSA F. Supp. 1060 (S.D. N.Y. 1983).
NOV: Final Agency Action?
As will be discussed in Chapter Seven, civil judicial enforcement actions
are conducted in the federal district courts.
In order to resolve civil judicial enforcement actions swiftly, It is
important for the government to avoid collateral attacks to the civil
action in a different court. In other words, an enforcement action is most
efficiently resolved if all of its elements are litigated in the district
court. To establish grounds for collateral attack, some recipients of NOVs
have sought review of the notice in the U.S. Circuit Court of Appeals on
the theory that the NOV is a "final agency action." Section 307(b)(l) pro-
vides for appeals court review of "final agency action." EPA has consis-
tently maintained that the NOV is not a final agency action.
Fortunately, the weight of the authority on this Issue has favored the
government's reading of the statute (i.e., that an NOV is not a final
Agency action and is only reviewable as one element of the merits of an
enforcement action in the U.S. District Court). In Union Electric Co. v.
EPA. 593 F.2d 299 (8th Cir. 1979), the court held that an NOV is a proce-
dural prerequisite to an abatement order and not reviewable on a motion for
a temporary stay of enforcement. Accord, Bethlehem Steel Co. v. EPA, No.
81-1855 (7th Cir. 1981). Earlier, the Third Circuit held, inter alia, that
the Issuance of an NOV is not a final Agency action since it may or may not
be followed by a compliance order or a civil action. West Penn Power Co.
v. Train. 552 F.2d 302 (3d Cir. 1975).
EPA strenuously argues against the holding of one district court opinion.
In Chrysler Corporation v. EPA No. I.P. 77-371-C (S.D. Ind. 1979), the dis-
trict court held that the NOV to Chrysler was reviewable as a final .Agency
action on the "purely legal question" of the applicability of regulations
to the source. The court ruled that the district court has jurisdiction
under 28 U.S.C. Section 1331 (i.e., "federal question" Jurisdiction). See
also Philadelphia Electric Co. v. Costle No. 78-4170 (E.D. P. December 27,
1978).
Note that the Chrysler and the Philadelphia Electric courts reviewed only
legal issues but not the facts underlying the NOV. Review of the facts
underlying the NOV is appropriate only in conjunction with review of the
merits of the enforcement action.
CAA Coapllance/Enforcement 6-7 Guidance Manual 1986
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Chapter Six Administrative Enforceaent Procedures
Follow-up to NOV
In West Perm Power Co. v. Train. 552 F. 2d 302 (3d Cir. 1975), the Third
Circuit held that the deci3ion to enforce an NOV is discretionary and hence
not open for review under the Administrative Procedure Act 5 USC
§701(a)(2). Presumbly, this holding would prevent a citizen suit under
Section 304 of the Act to require EPA to enforce an NOV. Citizens cannot
obtain judicial relief under Section 304 to require the Agency to perform a
discretionary duty (see Chapter Eleven).
Immediate Compliance Orders "
Section I13(a) authorizes the Administrator to issue compliance orders in
the following types of situations:
SIP Violations. Section Il3(a)(l) authorizes the issuance of an order "to
comply with the requirements" of the SIP. The prerequisites to the issu-
ance to this type of order are:
• An NOV was Issued previously; and
• The violation has continued beyond the 30th day following the
issuance of the NOV.
An immediate compliance order does not become effective until the recipient
has had an opportunity to confer with the Agency concerning the violation.
[Section 113(a)(4).] The state must also be notified.
NSPS Violations. Section 113(a)(3) authorizes the Issuance of a compliance
order for violations of Section lll(e), which prohibits operation of NSPS
sources in violation of the applicable standard of performance. "Standard
of performance" is defined in Section 302(1) of the Act and includes the
requirement of continuous emission reduction, as well as operation and
maintenance requirements associated with continuous emission reduction.
Other NSPS requirements (such as performance testing, monitoring, and
recordkeeplng) can be enforced by an order Issued under this subsection but
the order should cite them as violations of Section 114 as well as Section
11l(e).
Unlike orders issued under Section 113(a)(l), orders under this subsection
do not require the prerequisite NOV, notification of the state, or a 30-day
continuing violation. However, It does require that an opportunity for
conference be extended before the order becomes effective.
NESHAPs Violations. Section 113(a)(3) also authorizes the issuance of an
immediate compliance order to remedy violations of Section H2(c). Section
112(c) is limited to violations of emission standards and prohibits con-
struction of new sources and modifications to existing sources that would
violate emission standards when operated. Section I13(a)(4) expressly
exempts EPA from extending the opportunity for a conference in these cases.
CAA Co-Pliance/Eoforceaent6=8Guidance Manual 1986
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Chapter Six Administrative Enforcement Procedures
Inspections, Monitoring, and Entry Requirement Violations. Section
U3(a)(3) authorizes the issuance of an immediate compliance order for
violations of "any requirement" of Section 114 of the Act. Because of the
relatively minor problems associated with Section 114 violations, Section
113(a)(3) is often employed to achieve compliance in this area. The
statute does not require that an NOV have been issued previously, that the
state have been previously informed, or that the violation have continued
for 30 days. The opportunity to confer concerning the violation, however,
does apply.
Enforcement of Construction Bans in Nonattainment Areas. Section H3(a)(5)
authorizes the Issuance of an immediate compliance order banning construc-
tion or modification of a major stationary source in any nonattainment area
If the Administrator has first found that the state In which such source is
located Is not acting In accordance with Sections 110(a)(2)(I) or Part D.
Prior Issuance of an NOV, prior notification of the state, and a 30-day
continuing violation are not prerequisites. The opportunity for conference
with EPA concerning the ban, however, is required by Section 113(a)(4).
Contents of Immediate Compliance Orders
The statute sets forth minimum requirements for Immediate compliance
orders. Section 113(a)(4) provides that any order Issued under Section
113(a) shall:
• State, with reasonable specificity, the nature of the violation;
and
• Specify a reasonable time for compliance that takes into account
the seriousness of the violation and any good faith efforts on the
part of the respondent to comply.
In addition to the statutory requirements, immediate compliance orders
should specify an EPA official to be contacted for scheduling a conference
and should be signed by the properly delegated official. The conference
must occur within 30 days from issuance of the order. A record of the
proceedings during the conference is always made; an attorney may be
present and the respondent may submit supplementary explanatory
information.
The requirement that the conference occur within 30 days of issuance of the
Immediate compliance order stems from the nature of the order, (i.e., the
orders are essentially "Immediate" compliance orders). EPA has determined
that compliance no later than 30 days from the effective date of the order
is tantamount to Immediate compliance. However, Section 113(a)(3) orders
for NSPS or NESHAPs violations can specify a reasonable time for achieving
compliance beyond 30 days when the need for additional time arises from
circumstances beyond the control of the source. (See, CAA Policy
Compendium, Section 113, Tab 0.)
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Chapter Six Administrative Enforcement Procedures
Uses of Section 113(a) Orders
Because of their short duration, Immediate compliance orders cannot be used
to resolve all violations. Air pollution control, particularly from large
Industrial sources such as power plants and steel facilities, requires
substantial time to achieve. A company must draw up engineering plans,
negotiate contracts with the supplier of the control equipment, await
manufacture and delivery of the equipment, construct associated structures,
prepare the site at the source, Install the equipment, and finally fine
tune the equipment prior to demonstrating compliance. Because this process
may take a year or more, violations of this type are never resolved by
Section 113(a) compliance orders. Instead, those situations are typically
addressed by civil judicial action in accordance with Section H3(b) (see
Chapter Seven) or by a delayed compliance order (see below).
Many pollution problems, however, are remedied without the use of
time-consuming activities. In many of these situations, Immediate
compliance orders are more attractive than civil litigation. Violations
frequently occur because the pollution control equipment in current use is
poorly maintained or improperly operated. This type of problem can be
easily remedied. (For example, the efficiency of one type of partlculate
control equipment, electrostatic precipitators, is dependent upon how clean
the collection plate is kept. An appropriate use of administrative
enforcement would be to order the plant operator to clean the collection
plate.)
Another example of when an Immediate compliance order may be appropriate is
when a company fails to file a required report or to conduct a required
performance test.
Delayed Compliance Orders
Section 113(d) authorizes the issuance of delayed compliance orders (DCOs)
that essentially act as a limited extension from air pollution control
deadlines. Only an extension of the legally applicable compliance date is
permitted by these orders.
Section 302(o) provides the following definition:
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.
Note that either a state or the EPA may issue a OCO and that only existing
sources are eligible. When a state Issues a DCO, Section 113(d)(2)
requires EPA approval. A DCO for a major source becomes effective upon
publication In the Federal Register whether it is Issued by the state or
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Chapter Six Administrative Enforcement Procedures
the federal government (see 40 C.F.R. §65.06). A state-Issued order to a
nonmajor source is effective unless disapproved by the Administrator in
accordance with Section H3(d)(2) [see 40 C.F.R. §65.03(b)].
There are two types of delayed compliance orders still available:
• Section 113(d)(l): The "inability to comply" order; and
• Section 113(d)(4): The "new technology/technique" order (commonly
called the "innovative technology" order).
The time limits have expired for the Section 113(d)(3) "replacement, com-
plete change in operation or shutdown" order and the Section 113(d)(5)
"coal conversion" order. Extensive detailed guidance on DCOs is available
in the CAA Policy Compendium, Section 113, at Tabs 0, E, G, I, T, and U.
The guidance under Tab T should be referred to first as it provides an
overview of the statutory requirements and a description of EPA procedures.
Effect of DCO
An EPA-approved state-issued DCO becomes part of the SIP [40 C.F.R.
§65.03(a)(1)]. Insofar as the source complies with the provisions of the
DCO, the order precludes enforcement under Section 113 or by citizens
whether the DCO is an EPA-approved state order or a federal DCO [40 C.F.R.
§65.03(a)(2) and 6S.03(d)]. In addition, the recipients of Sections
113(d)(4) and 113(d)(5) orders are Insulated from the duty to pay a Section
120 noncompliance penalty [Section 120(a)(2)(B); Cf., 40 C.F.R.
§65.09(a)(3)]. An EPA-issued DCO precludes citizen suits but does not
preclude state action on the underlying requirement.
Primary Nonferrous Smelter Orders
Section 119 authorizes the Issuance of an order to a qualifying primary
smelter that, in effect, permits delayed compliance with the applicable S02
requirements of the SIP until no later than January 1, 1988. (See 40
C.F.R. Part 57.)
Orders Under Section 167 to Major Emitting Facilities
In Chapter One, we discussed the basic concepts and terminology associated
with Part C, which provides for the prevention of significant deterioration
of air quality (PSD). We noted that PSD regulations apply to "major emit-
ting facilities," a critical term defined by the statute and interpretted
in the landmark case of Alabama Power Co., et al. v. Costie, 636 F.2d 323
(D.C. Cir. 1979). We also noted that the backbone of the PSD program is
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Chapter Six Administrative Enforcement Procedures
the preconstruction review and the permitting process to ensure protection
of the PSD increments.
Section 167 provides that the "Administrator shall, and a State may" Issue
an order to "prevent the construction of a major emitting facility" that:
• Does not conform to the requirements of Part C; or
• Is proposed to be constructed in any attainment area or unclassifi-
able area and is not subject to a SIP that meets the requirements
of Part C.
Thus, a Section 167 order would be an appropriate response against a major
emitting facility if:
• It should have obtained a PSD permit but has not done so;
• It is constructing in violation of a valid permit;
• It is constructing pursuant to a state-issued permit that is
Invalid; or
• It is operating in violation of a permit.
Detailed guidance on the use of Section 167 authorities is included in the
CAA Policy Compendium at Section 167, Tab A.
Orders Issued Pursuant to Section 303 Emergency Powers
Section 303 authorizes the Administrator to initiate civil action in the
U.S. District Court to immediately restrain any person "causing or contri-
buting to" pollution that is "presenting an imminent and substantial endan-
gerraent" to human health. The Administrator is also authorized to 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)."
Section 303 orders can be employed only if all of the following conditions,
in addition to the "imminent and substantial endangerment" provision, are
present:
• It is not practicable to assure prompt protection of the public
health solely by commencement of a civil action;
• The state or local authorities have not acted to abate the sources;
and
• The state and local authorities have been consulted in order to
confirm the correctness of the information on which the order would
be based and to ascertain the actions that those authorities are,
or will be, taking.
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Chapter Six Administrative Enforcement Procedures
The term "Imminent and substantial endangerment" is not defined in the Act
nor has a court interpreted the standard in the context of Section 303.
However, similar provisions in other environmental statutes have been
interpreted by the courts. A detailed discussion of these cases and their
potential application to Section 303 is one aspect of the detailed guidance
on the use of emergency powers available in the CAA Policy Compendium,
Section 303, Tab A. In addition, specific operating guidance for Section
303 is contained In the Air Pollution Emergency Response Manual issued in
July 1983.
Duration of Section 303 Orders
An order under this section Is effective for only 24 hours. However, if
the Administrator also initiates an injunctive action in U.S. District
Court alleging an imminent and substantial endangerroent, the order is
effective for 48 hours. In addition, the court may authorize an even
longer period.
Failure To Comply With Section 303 Order
Willful and nonintentlonal violations of Section 303 orders are treated in
the sane manner. Violations, failure to comply, and refusal to comply are
all subject to daily $5,000 fines. [Compare, Sections 113(b) and (c) with
Section 303(b).J
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Chapter Six Adninistratlve Enforcement Procedures
CAA Covpllance/Knforceaent 6-14 Guidance Manual 1986
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7 Civil Judicial Enforcement
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Chapter Seven
Civil Judicial Enforcement
Contents Page
1 Introduction 7-1
2 Pre-Trial Stage 7-3
Post-Conference Decision 7-3
Contents of a Litigation Report . 7-3
Interrelationship of Referral Process, Litigation, and
Negotiation 7-8
Filing the Complaint 7-8
3 Injunctive and Penalty Actions 7-11
Violations for Which Judicial Relief May Be Granted 7-11
Injunctive Relief 7-12
Penalties 7-13
Issues That Are Not Revlewable at Trial 7-14
Settlements 7-14
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Chapter Seven _^___ Contents
CAA Conpllance/Bnforceaent 7-11 Guidance Manual 1986
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Chapter Seven
1 Introduction
In Chapter Five, we noted that the Act authorizes EPA to petition a federal
district court to order a violating source to comply with the Act and to
pay civil penalties to redress the period of noncompllance. Chapter Six
discussed the beginning stages in the development of the enforcement
process, particularly the issuance of the Notice of Violation, and the con-
ference with the violating source. In this chapter, we will pick up the
enforcement process after the conference with the source and point out the
basic issues involved in preparing for, and eventually resolving, the civil
judicial action. The chapter concentrates on the steps that precede the
filing of the civil complaint in federal district court. The filing of the
complaint and subsequent steps are primarily the responsibility of the
Department of Justice.
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Chapter Seven Introduction
CAA Compliance/Enforcement 7-2 Guidance Hanual 1986
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Chapter Seven
2 Pre-Trial Stage
Post-Conference Decision
As soon as possible after the conference, the Regional Office attorney and
engineer should discuss what transpired at the conference. The accuracy of
the engineer's report should be reviewed If the source offered conflicting
Information, and the strengths or weaknesses of the government's case
should be reevaluated In light of the source's theory of the case or other
information that may have come to light.
Assuming that a federal district court order is the desirable enforcement
response, the attorney and engineer must develop a Litigation Report that
will serve as the basis for obtaining the signatures of the appropriate EPA
officials for eventual referral to the Department of Justice and the United
States Attorney. The litigation report should be prepared for referral to
Headquarters or for direct referral within 30 days after receipt of all
necessary information from the company and from the state or local
authorities.
Contents of a Litigation Report
The Litigation Report should contain the following information:
• A synopsis of the case;
• The statutory basis of the referral;
• A description of the defendant;
• A description of the violations and their environmental
consequences;
• A discussion of the applicable compliance test method and whether
it was correctly applied;
CAA Compliance Enforcement 7-3 Guidance Manual 1986
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Chapter Seven Pre-Trlal Stage
• A description of the enforcement history of the defendant and
pre-referral negotiations;
• A description of the injunctive relief to be sought;
• A discussion of proposed civil penalties;
• A discussion of major issues, Including issues of national or
precedential significance;
• A discussion of the significance of the referral to the Agency's
compliance priorities and strategies; and
• A proposed litigation strategy.
In addition, the Litigation Report should contain attachments which
include, at a minimum, the following:
• A draft complaint;
• Documentation of the violations, such as compliance test reports or
responses to Section L14 letters;
• A copy of the notice(s) of violation;
• A copy of the Penalty Policy Worksheet and BEN computer printout;
• Copies of significant correspondence between EPA, the defendant
and/or the state; and
• A case plan.
Other attachments may be appropriate:
• Draft discovery;
• A draft consent decree;
• Draft motions;
• A diagram of the facility;
• A Dun and Bradstreet report or other papers relating to the
defendant's corporate status or financial status;
• A copy of a pending SIP revision; and
• A copy of the operating permit.
The Litigation Report should follow the format found in the Model
Litigation Report Outline. The Model Litigation Report Guidance contains
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Chapter Seven Pre-Trial Stage
a more detailed description of the Items that should be Included In the
Litigation Report. (See General Enforcement Policy Compendium at Tab
GM-48.)
Complaints
Complaints are governed by the General Rules of Pleading established by
Rule 8 of the Federal Rules of Civil Procedure. Complaints must state a
cause of action [I.e., the complaint must allege facts that constitute a
violation of the Act remediable pursuant to Sections 113(b), 167, or 303].
Complaints are filed on behalf of the United States of America. Conse-
quently, the complaint should not be styled "Environmental Protection
Agency v. Polluter" or "William D. Ruckelshaus, Administrator v. Polluter."
The complaint must also state the grounds upon which the court's jurisdic-
tion lies. Usually, EPA asserts federal court jurisdiction under Section
113(b), 167, or 303 of the Clean Air Act; 28 U.S.C. §1331 (the "federal
question" jurisdiction when the amount in controversy exceeds $10,000); 28
U.S.C. §1337 (a proceeding arising under an act of Congress regulating com-
merce); 28 U.S.C. §1345 (the United States as a plant iff); and 28 U.S.C.
§1355 (when the government seeks a civil penalty).
Complaints must also contain a demand for relief (i.e., an injunctlve order
aimed at requiring compliance or an order to pay civil penalties, or both).
The Environmental Enforcement Section of the Land and Natural Resources
Division of the Department of Justice has published model pleadings for
five categories of Clean Air Act violations: SIP violations, NSPS
violations, NESHAPS violations, PSD violations, and mobile source
violations. These model pleadings include model complaints.
Description of Evidence
The Litigation Report should contain a detailed description of the evidence
supporting the allegation of violation. Where the government alleges vio-
lations of opacity requirements, copies of the smoke reader's charts or
copies of the summaries of strip charts from continuous emission monitors
(where CEM is the compliance test method) should be included. Where the
government alleges violations of mass emission limits, the emission factor,
process weight, or other mathematical calculations should be included In
the report. The report should contain a description of the applicable
compliance test method and whether it was correctly applied. (See CAA
Policy Compendium, I. General, Tab K.)
Enforcement History of Defendant and Pre-Referral Negotiations
This section of the Litigation Report should describe the history of EPA
and state contacts with the source, beginning with the inspection and con-
tinuing through the conference and up to the time of referral. The report
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Chapter Seven Pre-Trlal Stage
should Indicate whether the source admits the violation or not; whether the
source has offered to take any action to abate the violation and what EPA's
evaluation of such offer Is; and whether the obstacle to settlement Is
based on the source's claim of compliance, the cost of compliance, the
expedltlousness of the compliance schedule, the amount of penalties, or
other factors.
The report should also document whether any administrative action has been
taken or is being taken concurrently with the development of the litigation
effort. For example, the source may have applied for a DCO under Section
H3(d), which, if granted, would have the effect of extending the compli-
ance deadline of the SIP for a specific time period. A Section 120 pro-
ceeding may be ongoing, which may or may not effectively force the source
to comply; or, the state may be entertaining a "bubble" petition for a
revision to the SIP that would ultimately affect EPA's claim for relief.
Because it Is EPA policy to defer to state authorities when it Is taking
appropriate action to resolve noncompliance, it is important for the liti-
gation report to set forth a history of state involvement with the source.
The report should describe whatever the state has done to bring the source
into compliance and why the EPA deems the state activity Inadequate to
resolve the situation appropriately.
Defenses
Discussions with the source at the conference, or prior history of inter-
action with another unit of the same company or from the same industry, may
be instructive regarding the defenses the source may offer to the court to
rebut allegations of liability. The source may argue, for example, that
the regulation in question was not legally adopted, the regulation is not
applicable, the performance test was not properly conducted, the government
Is somehow at fault, etc. When a legal or factual defense is anticipated,
the Litigation Report should describe how the government Intends to rebut
the defense. The description need not be as detailed as a brief for the
court would be, but it should cite applicable case law or statutory
authority in a manner sufficient to permit evaluation of both sides of the
argument.
Precedential Issues
Sometimes the conference discussions might indicate that the source intends
to argue, or EPA will be forced to assert, a legal point that will require
the court to decide an Issue of first impression. An Issue of first
impression is one where no court, has ruled on the meaning of a word or
phrase, or the applicability of a provision to a certain activity or set of
circumstances. In such a case, the report should attempt to describe what
case law or statutory authorities (e.g., the Clean Water Act) favor EPA's
case and what authorities to the contrary the source is likely to cite.
The report should also attempt to weigh the merits of both arguments.
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Chapter Seven Pre-Trial Stage
Environmental Harm
The report should assess the severity of environmental harm caused by the
noncompliance. The report should indicate the attainment status of the
air quality control region in which the source is located and whether the
source impacts any other air quality control regions. The report should
describe the loadings into the atmosphere of pollutants from the source
operating in noncompliance and compare them to loadings that would result
from the source in compliance. If possible, the report should also
describe the impact of the loadings on ambient concentrations, visibility,
or other parameters.
Description of Pollution Control Remedy
The report should describe in detail the specific air pollution control
project or program that is necessary to remedy the violation. If the
remedy involves the installation of control equipment, the report should
include a description and, where possible, a schematic drawing of the con-
trols. The report should Include an assessment of capital and operation
and maintenance costs associated with the controls, and a description of
the time Involved in putting the remedy Into effect. The report should
also provide a summary of industry experiences with similar control
techniques.
Civil Penalty Amount
The report should state what the civil penalty figure is, calculated on the
basis of the number of violations, multiplied by the number of days of
violation, multiplied by $25,000. This number represents the maximum
statutory penalty possible. Only rarely would a court award such a poten-
tially high penalty, although the complaint almost invariably demands that
amount.
More Importantly, the report should include a civil penalty figure that
represents the minimum penalty that would be acceptable in settlement of
the case. That number is determined on the basis of the Policy on Civil
Penalties (see General Enforcement Policy Compendium, document GM-12) and
the Clean Air Act Stationary Source Civil Penalty Policy (see CAA Policy
Compendium. Section 113, Tab Y). The minimum acceptable figure is usually
substantially lower than the maximum statutory amount. Therefore, this sum
must be guarded in the strictest confidence by EPA and DOJ negotiators to
permit the potential for maximum penalties to serve as an impetus for the
source to settle.
An Enforceable Consent Decree
The report may include a draft consent decree designed to secure compliance
as expeditlously as practicable. If the source has agreed to a settlement,
the decree accompanying the report should be the most recent draft of the
agreed upon settlement. If the source has not agreed to settle, the draft
CAA Conpllance/Enforceaent 7-7 . Guidance *amwl 1986
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Chapter Seven Pre-Trtal Stage
decree should contain schedules and other agreements most favorable to the
Agency because the draft decree will represent the starting point for
negotiations. In such a case, it Is fundamental to a successful
negotiation that the Initial proposal seek substantially more than what
would eventually be deemed acceptable to EPA.
The contents of a consent decree ultimately depend upon the underlying vio-
lation and the circumstances under which they will be remedied. Thus, a
truly model decree is difficult, if not impossible, to prescribe. However,
there are certain provisions of consent decrees that are often employed.
It is recommended that General Policy Compendium documents GM-17 and GM-27
be reviewed when preparing consent decrees. In addition, it is recommended
that Regional Office attorneys consult consent decrees entered in other
similar cases to discover appropriate provisions and language for Inclusion
in settlement agreements.
Interrelationship of Referral Process. Litigation, and Negotiation
Concurrently with the preparation of the Litigation Report, the referral
process, and the pendency of litigation, negotiations usually are conducted
with the violator aimed at settling the case. The vast majority of Clean
Air Act cases are settled by negotiation. That fact, however, should not
be assumed to apply. Litigation Reports should be prepared and negotia-
tions should be conducted on the assumption that the case will eventually
go to trial and will require proof of each element of violation, as well as
defenses of the civil penalty and pollution control demands.
As we noted in Chapter Six, negotiations with the source usually begin at
the conference that follows the NOV. It Is recommended that negotiations
be conducted regularly to demonstrate the government's resolve to pursue
the case and to reach a settlement as soon as possible. Once the source is
represented by counsel, It is required that any communications by EPA
attorneys with the source be conducted through the counsel.
Before beginning settlement negotiations, the EPA team must agree upon
what constitutes an acceptable settlement. This means that the team must
know what pollution control remedies are required, the schedule for compli-
ance, the penalty figure, and any other source-specific requirements either
necessary or desirable to abate the pollution and to monitor compliance.
Filing the Complaint
The civil action commences with the filing of a complaint (Federal Rules of
Civil Procedure, Rule 3). The complaint may be filed in the U.S. district
court in which the violation occurred or in which the defendant resides or
does business.
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Chapter Seven Pre-Trial Stage
The EPA negotiating team should press its counterparts In the Department of
Justice and the United States Attorney's office to file the complaint as
soon as possible. A filed complaint serves to reinforce the notion in the
violator that EPA views the situation seriously. Experience indicates that
a filed complaint Increases the chances, the quality, and the timing of
settlement. Rapid filing Improves chances of settlement simply because the
source will not be likely to expect that EPA will "forget about the whole
thing" once the government has invoked a court's jurisdiction. In addi-
tion, once a complaint has been filed, the source Is potentially liable for
payment of penalties, and must report the potential liability to share-
holders and the Securities and Exchange Commission in Its "10-K" form.
Because payment of penalties Is a nonproductive use of a company's funds,
shareholder pressure may force the company's officers to settle promptly.
Finally, a company in federal court for air pollution problems faces a
public relations problem that may be minimized, or even negated, by a quick
settlement.
A filed complaint can improve the quality and timing of a settlement
because a source must assume the possibility of a less palatable resolution
from a trial than from a settlement. Once the complaint is filed, the
spectre of a trial really arises. Most pollution law violators are
probably aware that judges and juries are likely to take a dim view of
defendants alleged to be contributing to environmental degradation. Thus,
the Impetus to settle, and settle quickly, Is enhanced by a filed
complaint.
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Chapter Seven Pre-Trial Stage
CAA Coopliance/Bnforceaent7-10 Guidance Manual 198?
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Chapter Seven
3 Injunctive and Penalty Actions
With the filing of the complaint, the Department of Justice formally begins
the civil action on behalf of the United States. The conduct of the trial
is almost invariably the responsibility of OOJ.
Violations for Which Judicial Relief May Be Granted
Section 113(b) provides that a federal district court may grant a temporary
or permanent injunction and order the payment of civil penalties for 11
categories of violations applicable to stationary sources:
• Violation of, and failure or refusal to comply with, a Section
113(a) immediate compliance order;
• SIP violation during any period of federally assumed enforcement;
• SIP violation occurring 31 or more days after receipt of the NOV
notifying the source that it is in violation of the SIP;
• Violation of Section lll(e) pertaining to New Source Performance
Standards;
• Violation of Section 112(c) pertaining to National Emission Stan-
dards for Hazardous Air Pollutants;
• Violation of a Section 113(d) delayed compliance order;
• Violation of a Section 119 nonferrous smelter order;
• Violation of regulations under Part B (relating to ozone);
• Failure or refusal to comply with any Section 114 requirement;
• Attempt to construct or modify a major source in any nonattainment
area about which the Administrator has made a finding under Section
I13(a)(5); and
• Failure to pay a Section 120 noncompliance penalty.
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Chapter Seven Injunctive and Penalty Actions
In addition, Section 167 provides for civil injunctive relief for certain
PSD violations. Note that Section 167 does not provide for civil penal-
ties. In actions requiring an Injunction and penalties to redress PSD
violations, both Sections 167 and U3(b) should be used. (See Policy Com-
pendium, Section 167, Tab A.)
Section 303 also provides for Injunctive and penalty relief In situations
causing or contributing to an imminent and substantial endangerment to
public health. (See Policy Compendium, Section 303, Tab A.)
Injunctive Relief
There are three types of injunctive relief available from a federal dis-
trict court—temporary restraining orders, preliminary injunctions, and
permanent injunctions. Petitions for Injunctive relief are addressed to
the discretion of the court (i.e., the remedy Is not automatically ordered
by a court).
A quotation from Wright and Killer's Federal Practice and Procedure. Volume
11, §2941, p. 361, aptly describes the three forms of injunctive relief as
follows:
A temporary restraining order typically is sought and
issued on an ex parte basis and operates to prevent
immediate Irreparable Injury until a hearing can be
held to determine the need for a preliminary injunc-
tion. A preliminary injunction is effective pendente
lite until a decision has been reached at a trial on
the merits. In some actions all three types of relief
may be ordered by the court.
Temporary Restraining Orders
A temporary restraining order (TRO) Is an order of a court that prohibits
or limits specified acts of a defendant. The TRO operates for no more than
ten days, unless extended for good cause for another ten-day period, or a
longer period if the party against whom the order is directed consents to
the longer period. [See Federal Rules of Civil Procedure, Rule 65(b).]
To obtain a TRO, EPA must prove that it clearly appears from specific facts
shown by affidavit or by the verified complaint that immediate and irrepar-
able injury, loss, or damage will result before the adverse party (the
source) can be heard in opposition. We have emphasized the last line
because the fact that a TRO can be issued by a court without the source
having been present or heard ("ex parte") is the key feature of TROs that
distinguish them from other court orders. EPA must certify in writing the
efforts, if any, that have been made to give notice of the hearing.
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Chapter Seven Injunctlve and Penalty Actions
When a TRO has been granted without notice, the court must set a date for a
hearing on a preliminary Injunction at the earliest possible time. The
source may seek to dissolve the TRO by giving EPA two days' notice and per-
suading the court at the hearing either that the underlying alleged viola-
tion is not occurring or that Immediate, irreparable injury, loss, or
damage will not result.
Preliminary Injunctions
A preliminary injunction is like a TRO with two significant exceptions.
First, a preliminary Injunction may not be issued without notice to the
source. Second, a preliminary injunction is effective for the time period
during which the court decides (pendente lite) whether or not to issue a
permanent injunction. Put another way, the preliminary injunction serves
to freeze the situation while the court decides what to do.
Permanent Injunctions
A permanent injunction is a final order of a court that restrains or
requires certain actions by the defendant. The permanent injunction Is
issued after the court has heard all arguments and tried all facts neces-
sary to reach a decision on the merits of the case.
Penalties
The successful resolution of a Clean Air Act civil judicial action almost
always involves the payment of civil penalty by the defendant. The appro-
priate penalty for most cases is derived from the CAA Stationary Source
Civil Penalty Policy (see CAA Policy Compendium, Section 113, Tab Y). In
addition, the following policies, which apply to specific penalty
situations, are located in appendices to the CAA Civil Penalty Policy:
Appendix I: Penalty Policy for Violations of Permit Requirements
Appendix II: Vinyl Chloride Civil Penalty Policy
Appendix III: Asbestos Demolition and Renovation Penalty
Appendix IV: Penalty Policy as Applied to Stationary Sources of
Volatile Organic Compounds Where Reformulation to Low
Solvent Technology Is the Applicable Method of
Compliance
CAA Coapliance/Boforceaent 7-13 Guidance Manual 1986
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Chapter Seven Injuncttve and Penalty Actlona
Issues That Are Not Reviewable at Trial
Section 307(b)(2) provides:
Action of the Administrator with respect to which review
could have been obtained [under Section 307(b)(l)] shall
not be subject to Judicial review in civil or criminal
proceedings for enforcement.
The effect of this provision is to limit severely the number and types of
defenses that could be raised by a defendant in an enforcement proceeding.
Generally, Section 307(b)(l) provides for review of rules or orders promul-
gated pursuant to Section 110, 111, 112, H3(a), 113(d), 119,120, or any
other final agency action of the Administrator, within 60 days of publica-
tion of the rule or order in the Federal Register. Jurisdiction lies in
the U.S. Court of Appeals for the appropriate circuit for regionally appli-
cable rules or orders, or in the D.C. Circuit for nationally applicable
rules or orders. After the 60-day period has expired, the rule or order
may not be challenged.
Thus, in an action to enforce the emission limitation establshed by an
NSPS, the source may not challenge the rule as being inapplicable due to a
defect in the rulemaking, such as the failure of the Agency to consider
cost in establishing the standard. In other words, although the source may
defend against the enforcement action on the grounds that the standard does
not apply to the source (e.g., the standard applies only to sources larger
than "x" and the source is actually smaller than "x"), it may not challenge
the standard Itself (e.g., the standard should not apply to sources larger
than "x").
Settlements
The vast majority of Clean Air Act cases are settled before the court ren-
ders a decision. The settlement agreement is usually embodied in a consent
decree. EPA General Enforcement Policy Manual GM-27 sets forth generally
applicable principles for federal district court orders and GM-17 sets
forth model language for consent decrees. In addition to that guidance, it
is recommended that the attorney drafting the decree review other decrees
that have been successful in bringing about compliance.
There are two very important EPA policies specifically applicable to
settlements with sources violating SIP requirements in primary nonattain-
ment areas subsequent to December 31, 1982. Those documents, which are
Included in the Policy Compendium to this manual at Section 113, Tabs R and
S, establish specific requirements relating to the form and content of
decrees embodying post-1982 SIP enforcement settlements.
CAA Cowpllance/Knforceaeot 7-14 Guidance Manual 1986
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8 Section 120 Noncompliance Penalties
-------
Chapter Eight
Section 120 Noncompliance Penalties
Chapter Contents
1 Introduction 8-1
Role of States in Section 120 8-2
2 Section 120 Noncompliance Penalties 8-3
Sources Subject to Section 120 8-3
Choosing Section 120 as the Enforcement Response 8-4
Procedures for Assessment and Collection
of Noncompliance Penalties 8-5
EPA's Response to Petition for Reconsideration 8-8
Hearings on Petition for Reconsideration
for De_ Mlnlmis Exemption 8-9
Determination of Compliance 8-9
Method of Payment 8-10
CAA Compliance/Enforcement 8-1 Guidance Manual 1986
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Chapter Eight Contents
CAA Coapliance/Hnforceaent 8-11 Guidance Manual 1986
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Chapter Eight
1 Introduction
The 1977 Amendments strengthened EPA's enforcement arsenal with the addi-
tion of the noncompliance penalty program. Until the enactment of Section
120, EPA could seek monetary penalties only in the Section 113(b) and
Section 303 civil Judicial actions described in the preceding chapter.
Section 120 enables EPA to assess and collect penalties administratively
from certain noncomplying sources in an amount equal to the "economic
value" of the "delay in compliance." [Section 120(d)(2)(A).]
Section 120 relies exclusively on economic incentives to achieve environ-
mental objectives and, In so doing, constitutes a significant theoretical
departure from traditional regulatory enforcement methods.
The regulations governing the program (see 40 C.P.R. Parts 66 and 67) were
promulgated on July 28, 1980, and became effective on October 27, 1980.
[See 40 Fed. Reg. 50,117 (July 28, 1980).] Those regulations were upheld,
with a few minor exceptions, by the U.S. Court of Appeals for the District
of Columbia Circuit in Duquesne Power and Light Co. v. EPA, 698 P.2d 457
(O.C. Clr. 1983).
EPA's experience in implementing the program Is in its developing stage.
At the end of 1983, EPA had initiated approximately two dozen proceedings
to assess and collect Section 120 penalties. The proceedings reached the
formal administrative hearing stage in only a few cases. Consequently,
this chapter reflects the requirements of the Part 66 regulations more than
the lessons of practical experience. The reader should also consult the
Agency's "Noncompliance Penalty Adjudicatory Hearing Manual" Issued In
1981. That manual provides detailed discussion of the administrative
process in general and a discussion of techniques useful in adjudlcatory
hearings. Most importantly, the manual contains a set of "model" documents
that may be used at the different stages of the process.
CAA Compliance/Enforcement8-1Guidance Manual 1986
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Chapter Eight
Introduction
Role of States In Section 120
A state is not required to have a Section 120 program. However, a state
may have a Section 120 program if it is approved by the Administrator as
meeting the requirements of 40 C.F.R. Part 67. As of May 1986, no state
had received delegation of the Section 120 program.
CAA Coapllance/BnforceMent
8-2
Guidance Manual 1986
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Chapter Eight
2 Section 120 Noncompliance Penalties
Sources Subject to Section 120
Subpart B of 40 C.F.R. Part 66 establishes two broad classes of sources
subject to penalty assessment and collection:
• Sources In violation of "applicable legal requirements" [40 C.F.R.
§66.11(a)]; and
• Sources where (a) the state program has been approved, (b) the
state has not sent a Notice of Noncorapliance, or the state has not
diligently pursued the assessment and collection of penalties after
sending a Notice of Noncompliance, and (c) the source is In
violation of "applicable legal requirements." [40 C.F.R.
§66.1Kb).]
"Applicable legal requirements'
follows:
is defined at 40 C.F.R. §66.3(c) as
Major sources—emission limitations, emission standards, or compli-
ance schedules under EPA-approved SIPs (regardless of whether the
source is subject to a federal or state consent decree);
Sources subject to NSPS or NESHAPs—emission limitations, emission
standards, standards of performance, or other requirements (includ-
ing work practice standards);
Sources subject to federal consent decrees, federally approved
state consent decrees, extensions, orders, or suspensions—Interim
emission control requirements or schedules of compliance pursuant
thereto;
Certain nonferrous smelters—interim emission control requirements
or schedules of compliance pursuant to certain orders.
CAA Compliance/Enforcement
8-3
Guidance Manual 1986
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Chapter Eight _ Section 120 Noncompliance Penalties
Exemptions
If a source falls under one of the four categories listed above, it still
may not be subject to noncompliance penalties during the period for which
it qualifies for one of the following exemptions:
• The source has received an order under Section 113(d)(4) or
The source demonstrates an inability to comply resulting from rea-
sons entirely beyond the control of the owner or operator of such
source or of any affiliated entity, and the source has received an
order under Section 113(d)(l) or is subject to a federal or feder-
ally approved consent decree or order that has the effect of per-
mitting a delay in complying with the requirement, and the Inabil-
ity to comply Is demonstrated to have resulted from one of the
situations listed in 40 C.F.R. §66.31(c), and the source took the
steps listed in 40 C.F.R. §66.3l(d);
The source demonstrates the existence of an energy or employment
emergency order issued under Section H0(f) or H0(g);
The source demonstrates that the violation is de^ minlmls in nature
and duration [see 40 C.F.R. §66.32]; or
The source demonstrates that the violation is de_ minimis in nature
and duration and was caused solely by a sudden and unavoidable
breakdown of process or pollution control equipment. [40 C.F.R.
§66.33.)
Choosing Section 120 as the Enforcement Response
Because Section 120 Is an enforcement tool, the same basic goals of deter-
rence, compliance, and fairness underlie the noncompliance penalties
program as underlie Section 113. In making a choice among enforcement
tools, the Agency chooses the tool best suited to accomplish the compliance
goal at hand.
Sections 120 and 113 differ In two fundamental respects. First, while one
factor of the civil penalty policy for civil Judicial actions under Section
113 Is the economic cost of compliance, Section 113 penalties may in addi-
tion reflect mitigating and aggravating factors incident to noncompliance.
The goal of Section 120, on the other hand, is exclusively to neutralize
the economic advantages conferred by noncompliance. It offers the prospect
of very substantial penalties that can be administratively imposed and
quickly collected. Second, Section 120 seeks to accomplish enforcement
goals solely through the Imposition of monetary assessments. In contrast,
Section 113 authorizes notices, immediate and delayed compliance orders,
court-ordered injunctions requiring compliance, court-ordered monetary
penalties, and criminal penalties.
CAA Coopllance/Bnforceaent 8-4 Guidance Manual 1986
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Chapter Eight Section 120 Noncoapllance Penalties
Section 120 Is likely to be an appropriate enforcement response where the
noncompliance penalty Itself, as opposed to any other remedy, will more
effectively provide the Incentive for the source to comply. Whether
Section 120 Is likely to be effective Is dependent on the size of the
calculated penalty and the reaction of the source to the amount of the
penalty. Where the penalty Is large, sources are likely to move toward
compliance more quickly than If the penalty Is small. However, If the
penalty Is large, It Is less likely that the matter will be settled without
a full administrative hearing.
The penalty Is calculated In accordance with a formula, the parameters of
which are established by the Technical Support Document and the Instruction
Manual. [See 40 C.F.R. Part 67, Appendices A, B, and C, and 45 Fed. Reg.
50117 (July 28, 1980).] The formula Is complicated and will not be de-
tailed here. However, for our purposes it Is important to know that the
formula is most sensitive to the cost of compliance (capital and operation
and maintenance) *nd the length of the period of noncompliance. In other
words, the amount of the penalty will vary the most due to changes in
either, or both, of those parameters.
The benefit of noncompliance is basically the savings realized from the
deferral of the cost of pollution control equipment plus the cost of
operating and maintaining (0/M) the equipment during the period of non-
compliance. The 0/M cost increases with the length of the period of
noncompliance. Thus, a source in violation of an applicable legal require-
ment that can be remedied in a short time at little expense would be
assessed a smaller penalty than a source requiring large costs to comply
and long delay, all other things being equal. The penalty Is usually
higher for pollution problems whose remedies require a major refurbishing
of control equipment, a major modification of control equipment, or
installation of new control equipment. In contrast, the penalty is usually
smaller for problems whose remedy requires a chemical reformulation or an
operation and maintenance technique Involving only additional labor costs.
Of course, the higher the penalty, the more likely it will encourage
compliance.
Procedures for Assessment and Collection of Noncompliance Penalties
The Section 120 enforcement process begins with the Issuance of a Notice of
Noncompliance (NON) to the violating source. [If the source has not al-
ready received a Section 113 Notice of Violation, it is advisable to issue
one along with the NON (or In the same document) to permit an expeditious
resort to federal district court If it Is subsequently determined that
injunctive or civil penalty relief may be necessary to supplement the
Section 120 enforcement process.]
CAA Gonpliance/Enforceaeat8-5 Guidance Manual 1986
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Chapter Eight _ Section 120 Noncompllance Penalties
Contents of the NON
The specific requirements for the content of NONs are established by 40
C.F.R. Section 66.12. The NON informs the source that it is la violation
of an applicable legal requirement; that it owes a penalty and must pay the
penalty; that it is obligated to calculate the penalty and the appropriate
schedule in accordance with the Technical Support Document and the Instruc-
tion Manual enclosed with the NON; that if the source disagrees, it may
petition for a hearing on EPA's finding of violation or to claim an
exemption, or both; and that the penalty continues to accrue even during a
hearing if the noncorapliance continues.
The NON should also Invite the source to an informal conference to discuss
the situation, although the regulations do not require that a conference be
held. The conference can be very important because it permits the Agency
to explain the nature of the Section 120 model (i.e.. that it is compensa-
tory and not punitive). While explaining the difference between compen-
satory penalties and punitive penalties, the attorney conducting the
informal conference can take the opportunity to explain how the amount of
the penalty is ultimately determined by the source's activity. In other
words, EPA should explain to the source how the ultimate figure Is "really
In your hands, not ours."
The attorney should also offer to calculate the penalty for the source
based on rough estimations of the coat of compliance, the length of the
period of noncorapliance, etc. The attorney should explain that the law
requires that EPA settle for no less than the figure as calculated by the
model. In point of fact, there is some small flexibility In adjusting the
penalty figure; EPA can reduce the penalty amount by a percentage figure
equal to EPA's projected chances of not prevailing on the merits at an
administrative hearing. (See March 19, 1985, memorandum entitled
"Permissible Grounds for Settlement of Noncorapliance Penaltiels Under
Section 120 of the Clean Air Act.")
Delivery of the NON
The NON Is transmitted to the source owner or operator either by personal
service or by registered or certified mall, return receipt requested. [40
C.F.R. §66.12(b).]
Obligations of the Recipient of an NON
The recipient of an NON must make one of two choices within 45 days after
receiving the NON:
CAA Compliance/Enforcement8=6Guidance Manual 1986
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Chapter Eight Section 120 Noncompllaoce Penalties
• The recipient must calculate the penalty owed and the appropriate
quarterly payment schedule. The recipient must then transmit the
calculation and supporting data to the Administrator for verifica-
tion; or
• The recipient must submit a Petition for Reconsideration, which
either:
— Alleges that the source is not in violation of the applicable
legal requirement, or
— Asserts entitlement to an exemption, or
— Asserts both of the above.
The recipient is not permitted to petition for reconsideration on the vio-
lation issue and then submit a second petition asserting entitlement to an
exemption. Both issues must be raised in the same Petition for Reconsider-
ation. The petition may be amended within the 45-day period. After the
45-day period, amendment of the petition is permitted only if based on
"unforseeable conditions occurring after termination of the 45-day period,
or upon consent of the Administrator." [40 C.F.R. §66.13(c).]
Failure To Respond or Submission of Inadequate Response to an NON
If the recipient falls to respond to the NON or submits information that is
inadequate to enable EPA to verify the accuracy of the calculation, the
Administrator shall, within 30 days of receipt of the calculation or of the
expiration of the period for submitting the calculation, specify what defi-
ciencies exist and request the source owner or operator to supplement the
submission within 30 days of receipt of such request. If the Administrator
determines that the response and supplemental information is still defi-
cient, or if the recipient of an NON has not responded at all, the Adminis-
trator is authorized to enter Into a contract with any independent quali-
fied person to assist in determining the amount of the penalty.f40
C.F.R. §66.51] The cost of the contract may be added to the penalty
assessed. [40 C.F.R. §66.22.]
The source Is obligated to pay the first Installment of the penalty six
months after receipt of the NON (unless a Petition for Reconsideration on
grounds of exemption or compliance has been filed). [40 C.F.R. §66.61(a).]
Installments shall be paid quarterly thereafter until compliance is
achieved. [40 C.F.R. §66.61(b).] Once compliance has been achieved (see
the last section of this chapter), the final penalty calculation is made,
and either the source pays what. Is still owed or EPA reimburses the source
for overpayment. [40 C.F.R. §66.72.] Failure of the source to make timely
payment results in additional nonpayment penalties. [40 C.F.R. §66.63.]
Finally, if the source does not pay, EPA may commence a civil Judicial
action to recover the noncompliance and the nonpayment penalties pursuant
to Section 113(b).
CAA Compliance/Enforces at 8-7 Guidance Manual 1986
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Chapter Eight Section 120 Honcoapliance Penalties
EPA*s Response to Petition for Reconsideration
Instead of transmitting a calculation and payment schedule, a source may
file, within the 45-day period, a Petition for Reconsideration that alleges
no violation of applicable legal requirements or asserts entitlement to an
exemption.
As a precautionary measure, the Petition for Reconsideration must be
reviewed by a different attorney than the attorney assigned to the Section
120 proceeding. EPA follows this procedure due to the potential applica-
bility of the decision in Bethlehem Steel Corp. v. EPA, 638 F.2d 994,1008
(7th Cir. 1980), which prohibited the same attorney from handling a Section
113(b) enforcement action and a petition for a delayed compliance order
(DCO) under Section I13(d) involving the same source. The Agency's
decision in a DCO is "adjudicatory" in nature, thus requiring a neutral
hearing officer to ensure fairness. The enforcement attorney is not
considered neutral. In order to avoid allegations that the Agency
improperly "commingled" the Section 120 enforcement process and the quasi-
adjudicatory decision on the Section 120 Petition for Reconsideration, EPA
requires that the petition be reviewed by a neutral attorney.
Within 30 days after receiving the petition, EPA must notify the source
owner or operator of EPA'a decision, which is limited to one of the follow-
ing three rulings:
• The NON is withdrawn, or modified, because the petition demonstra-
ted entitlement to part or all of the relief requested;
• A hearing Is granted on the issue of violation of applicable legal
requirements or entitlement to exemption; or
• The information in the petition is inadequate to enable EPA to
determine whether the source is not in violation or is entitled to
an exemption. The source must respond to the specified inadequa-
cies in information within 30 days of the Administrator's response.
A fourth response permitted in the original regulations was struck down by
the court in the Duquesne Power and Light case. [See 40 C.F.R. §66.41(b)
(1980).]
Hearings on Petitions for Reconsideration
When the Administrator grants a hearing on the Petition for Reconsideration
under 40 C.P.R. Section 66.41(a)(3), the proceedings are governed by the
Consolidated Rules of Practice, 40 C.F.R. Part 22 and Subpart J of Part
66. The Presiding Officer, who is appointed by the Agency's Chief Adminis-
trative Law Judge, must Issue an initial decision within 90 days after the
hearing is granted by the Administrator unless the hearing date or the
deadline for decision is extended by the Presiding Officer upon agreement
of the parties. [40 C.F.R. §66.42(c).J
CAA Coapliance/Enforceaent 8-8 Guidance Manual 1986
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Chapter Eight Section 120 Noncompllance Penalties
At the hearing, EPA bears the burden of proof, by a preponderance of the
evidence, on the allegation of violation of applicable legal requirements.
The source bears the burden of proof, by a preponderance of the evidence,
on the issue of entitlement to an exemption. [40 C.F.R. §§66.94(a),
66.94(b), 66.94(d).] The hearing is limited to consideration of the issues
of liability and exemption. In no event may the Presiding Officer enter-
tain arguments that the statute is more or less restrictive than the regu-
lations. [40 C.F.R. §66.4.]
The Presiding Officer's decision disposes of all issues raised in the
hearing In a single written decision. The losing party may appeal the
decision to the Administrator by filing a petition within 20 days from
receipt of the decision. Once the Administrator has notified the appealing
party of the decision on the appeal, the decision becomes a final Agency
action [see 40 C.F.R. §66.81(b)] appealable to the U.S. Court of Appeals
for the circuit in which the violation occurred. [Section 307(b)(l).J If
EPA finds a violation, the source must submit, inter alia, a penalty
calculation within 45 days of the Agency's finding. [40 C.F.R. §66.43.]
If EPA recalculates and determines that a different penalty amount is
appropriate, the source may petition for reconsideration of that decision
and, if necessary, force a hearing on it. [40 C.P.R. Part 66, Subpart F.]
Hearings on Petition for Reconsideration for De Minimis Exemption
An exemption based on a de minlmis, or de minimis and malfunction, claim
may be granted by the Administrator only after notice and opportunity for
public hearing. [40 C.F.R. §§66.32, 66.33.] However, if a hearing is
granted based on either the de miminis or the de minimis and malfunction
exemptions, or both, and a hearing is granted on a Petition for
Reconsideration based on 40 C.F.R. Section 66.31, a consolidated hearing
under Subpart J is held. [40 C.F.R. §§66.42(b).]
Determination of Compliance
As noted, a recipient of an NON is obligated to pay the first Installment
of the penalty six months after receiving the NON. Installments are to be
paid quarterly thereafter until compliance is achieved.
Subpart H of 40 C.F.R. Part 66 establishes the procedures for a source to
notify the Agency that compliance has been achieved and the procedure for
final calculation of noncompliance penalties owed by the source, or to be
reimbursed by the government due to overpayment.
When a source owner or operator believes that compliance has been achieved
and maintained, he or she must notify the Administrator in writing and
enclose any factual data, analytical materials, and legal arguments that
CAA Compllance/Knforceaent 8-9 Guidance Manual 1986
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Chapter Eight Section 120 Moncoapliance Penalties
would support the claim of compliance. The Administrator must make a writ-
ten determination within 30 days of receipt of the notice either that the
source is in compliance, is not in compliance, or that additional material
is needed to enable the Administrator to conclude whether the source is in
compliance* If more Information is needed, the Administrator is required
to render a decision within 30 days from receiving the supplementary
information.
If the Administrator determines that the source has not achieved or main-
tained compliance, the source may file a Petition for Reconsideration
within 30 days of receipt of the written determination.
If the Administrator determines that the source is In compliance, the
source is required to submit to the Administrator a revised penalty calcu-
lation together with data necessary for verification. The Administrator
then must respond in writing within 30 days indicating that:
• The calculation is correct;
• The calculation is incorrect and has been recalculated on the basis
of the Information submitted by the source or on the basis of other
data; or
• The submitted data is inadequate to determine the amount of the
penalty, to which determination the source must respond within 30
days.
If the penalty recalculation is correct, the source must pay any defici-
ency, plus interest, within 30 days, or the government must reimburse the
source for any overpayment within 30 days.
If the penalty is incorrect but has been recalculated by the Administrator,
the source is permitted to file a Petition for Reconsideration of the
calculation within 45 days of receipt of such notification.
If the source has not submitted any recalculation or has submitted a
deficient recalculation and does not respond to the Administrator's notice
of deficiency, the Administrator may recalculate the penalty or employ a
contractor to do so.
Method of Payment
Payments in excess of $10,000 must be made by wire transfer, payable to the
United States Treasury. Payments of less than $10,000 must be made by
certified or cashier's check, payable to the United States Treasury, and
sent by registered mail to the Administrator. [40 C.F.R. §66.62.]
CAA Govpllance/Bnforceaent 8-10 ftitHnnpg M^mml 1996
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9 Criminal Actions
-------
Chapter Nine
Criminal Enforcement
Chapter Contents Page
Statutory Authority 9-1
Basic Enforcement Policy 9-1
Criteria for Identification of a Potential Criminal Action 9-2
Criminal Enforcement Priorities 9-5
Procedures for the Investigation and Referral of a
Criminal Case 9-6
Exhibit 9-1: Criminal Enforcement Provisions of the Clean Air Act 9-11
Exhibit 9-2: Functions and General Operating Procedures for
the Criminal Enforcement Program 9-12
Exhibit 9-3: Office of Criminal Investigations: Management
and Field Offices 9-27
Exhibit 9-4: Format for Criminal Case Referrals 9-31
CAA Compliance/Enforcement 9-i Guidance Manual 1986
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Chapter Nine Contents
CAA Compllance/Enforceaent 9-11 Guidance Manual 1986
-------
Chapter Nine
Criminal Enforcement
Statutory Authority
Section 113(c) of the Clean Air Act provides for criminal penalties for
certain Illegal activities. These Include, among other things, the knowing
violation of State Implementation Plans, the knowing violation of New
Source Performance Standards or National Emission Standards for Hazardous
Air Pollutants, and the knowing violation of any compliance order.
Criminal penalties are also provided for any person who knowingly makes a
false statement or representation In documents required to be filed or
maintained under the Act or who knowingly tampers with required monitoring
equipment. A copy of the criminal enforcement provisions of the Clean Air
Act Is Included as Exhibit 9-1.
In addition to violation of specific federal environmental statutes, defen-
dants In EPA criminal cases are often charged with other crimes under
general federal criminal enforcement provisions found in Title 18 of the
United States Code. These charges, which may arise out of the activities
that ultimately result In environmental criminal charges, Include: false
statements (18 U.S.C. §1001), for the making of a false statement or con-
cealing of a material fact In a matter within the jurisdiction of a depart-
ment or agency of the federal government; conspiracy (18 U.S.C. §371), for
activities by two or more persons to commit an offense against or to
defraud the United States; mall fraud (18 U.S.C. §1341), for the use of the
mall to further a fraudulent scheme or artifice; and wire fraud (18 U.S.C.
§1343), for the use of the telephone, radio, or television to further such
schemes or artifices.
Basic Enforcement Policy
The clean air enforcement program ensures compliance with the terms and
provisions of the Act. The Act provides the Agency with a variety of
administrative, civil, and criminal enforcement options to accomplish this
goal. A broad range of potential overlap exists among these various
options. Theoretically at least, the Agency Is free to pursue criminal
CAA Compliance/Enforcement 9-1 Guidance Manual 1986
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Chapcer Nine Criminal Enforcement
sanctions in every situation presenting evidence supporting the requisite
elements of proof. In conducting criminal Investigations and preparing
criminal referrals, It Is Important for the key offices Involved
(OECM-Crlralnal Enforcement, NEIC criminal Investigators, Regional Counsel's
Office, and program managers) to work closely together.
As a matter of enforcement policy and resource allocation, an unrestrained
use of criminal sanctions Is neither warranted nor practical. The
commitment of Investigative and technical resources necessary for the
successful prosecution of a criminal case Is high. More Importantly, a
criminal referral for Investigation or prosecution can entail profound
consequences for the subject of the referral. Accordingly, criminal
referrals are confined generally to situations that—when measured by the
nature of conduct, the compliance history of the subject(s), or the gravity
of the environmental consequences—reflect the most serious cases of
environmental misconduct. Criminal enforcement may also be appropriate to
establish a deterrent effect when a pervasive pattern of violations exists.
Criteria for Identification of a Potential Criminal Action
The Agency's choice among Its varying enforcement options—civil,
administrative, and criminal—is a discretionary judgment that balances
essentially subjective considerations. This section discusses the varying
factors and considerations that should be addressed as EPA reaches a
decision on whether a criminal proceeding Is the appropriate enforcement
option to employ In addressing a specific violation. In essence, It Is a
discussion of those factors that will normally distinguish a criminal case
from all the others.
Criminal Intent
An Individual who engages In conduct prohibited by statute or regulation
can be prosecuted civilly or administratively without regard to the mental
state that accompanied the conduct. Criminal sanctions, on the other hand,
will ordinarily be limited to cases In which the prohibited conduct Is
accompanied by evidence of a "guilty knowledge" or intent on the part of
the prospective defendant(s). Referred to as the sclenter requirement,
this element of proof exists under virtually every environmental statute
enforced by the Agency.* The requirement to prove a culpable mental state,
One exception to this general rule is the Refuse Act, 33 U.S.C. §407,
which has generally been interpreted as a "strict liability" statute.
See, e.g., United States v. White Fuel Corporation. 498 F.2d 619 (1st
Clr. 1974). In addition, a prosecution for Illegal discharges under the
Clean Water Act can be based on negligent ££ willful conduct, 33 U.S.C.
§l319(c)(l). "Negligence" Is not, strictly speaking, a form of
sclenter.
CAA Compliance/Enforcement 9-2 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
as well as prohibited act, Is certainly the clearest distinction between
criminal and civil enforcement actions.
Section 113(c) of the Act Imposes criminal penalties only for violations of
the Act that are done "knowingly." There Is as yet no case law Interpret-
ing the meaning of this term as It Is used In the Act. However, this term
Is also used to define the sclenter requirement In numerous other stat-
utes. As such, It has been defined to mean that the vlolatlve act must be
done Intentionally and not as a result of accident or mistake.* A similar
definition Is expected to apply In the case of the Act.
The Nature and Seriousness of the Offense
Resources currently available to EPA for criminal case development are
limited. In addition, this Agency Is only one of many that are making
demands on the limited prosecutorlal staffs of the Department of Justice.
As a matter of resource allocation, therefore, as well as enforcement
philosophy, EPA will generally Investigate and refer only the most serious
forms of environmental misconduct.
Of primary Importance to this assessment Is the extent of environmental
contamination or human health hazard that has resulted from, or was
threatened by, the prohibited conduct. In general, this determination
depends upon considerations such as the following:
• The duration of the conduct;
• The toxlclty of the pollutants Involved;
• The proximity of population centers;
• The quality of the receiving land, air, or water; and
• Public sentiment supporting strong enforcement action In response
to a specific situation.
EPA should also assess the Impact of the Illegal conduct—real or
potential—on EPA's regulatory functions. This factor Is particularly
Important In cases of falsification or concealment of records, reports, or
The Department of Justice has consistently argued that environmental
statutes are "public welfare" laws requiring only a showing of general
criminal Intent. In other words, It Is sufficient to show that the acts
made criminal (e.g., removal of asbestos In violation of a required work
practice) were done knowingly; proof of actual knowledge of the statute
or regulations being violated Is not required. See, e.g.. United States
v. International Minerals & Chemical Corp.. 402 U.S. 558 (1971) (holding
that "Ignorance of the law Is no defense" under the Explosives and
Dangerous Articles Act, despite the Act's use of the term "knowingly").
CAA Compliance/Enforcement 9-3 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
Information. For example, even If a technical falsification case can be
made, criminal sanctions may not be appropriate if the distortion of Infor-
mation could not reasonably have been expected to have a significant Impact
on EPA's regulatory process or declslonmaklng. Where the falsification
materially affects EPA declslonmaklng, however, criminal sanctions should
be considered. These cases Include falsification of emissions data, omis-
sions In a permit application, or alteration of an emission control process
during testing periods.
The Need for Deterrence
Deterrence of criminal conduct by a specific Individual (Individual deter-
rence) or by the community at large (general deterrence) has always been
one of the primary goals of the criminal law. Where the offense Is
deliberate and results In serious environmental contamination or human
health hazard, EPA can achieve deterrence through the use of strong puni-
tive sanctions.
The goal of deterrence may, on occasion, justify a criminal referral for an
offense that appears to be relatively minor. This would be true, for exam-
ple, for offenses that—while of limited Importance by themselves—would
have a substantial cumulative Impact If commonly committed. For example,
emitting a toxic pollutant marginally In violation of a NESHAP may not seem
significant as an Isolated act, but, If widespread, such acts could be
extremely dangerous. EPA may also use criminal enforcement to deter an
Individual with an extensive history of recalcitrance and noncompllance.
Compliance History of the Subject
The compliance history of the potential defendant Is relevant and should be
considered In determining the appropriateness of criminal sanctions. In
federal criminal enforcement, first offenders are generally treated less
severely than recidivists (I.e., criminal sanctions become more appropriate
as the Incidents of noncompllance Increase). The occurrence of past
enforcement actions against a company, or the failure of clvll/admlnlstra-
tlve enforcement, Is certainly not a prerequisite to a criminal referral.
However, a history of environmental noncompllance often Indicates the need
for criminal sanctions to achieve effective Individual deterrence.
The Need for Simultaneous Civil or Administrative Enforcement Action
Simultaneous civil and criminal enforcement proceedings are legally permis-
sible [United States v. Kordel. 397 U.S. 1, 11 (1970)] and on occasion are
clearly warranted. For example, where remedial or Injunctlve relief Is
necessary at the same time that criminal sanctions are appropriate, paral-
lel civil and criminal actions may be brought.
Separate enforcement staffs must be appointed when the government Initiates
a grand jury Investigation, If not before. The use of simultaneous pro-
ceedings provides grounds for legal challenges to one or both proceedings
CAA Compliance/Enforcement 9-4 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
that, even though generally unsuccessful, will consume additional time and
resources. Typical objections Include the allegation that the government
violated the criminal defendant's Flth Amendment right against self-
Incrlralnatlon by using an administrative or civil enforcement proceeding to
obtain from that defendant Information for use In the criminal enforcement
action. Thus, parallel proceedings should be avoided except where justi-
fied. (See Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency, January 23, 1984.)
EPA can achieve some of the goals of a criminal prosecution, Including a
degree of deterrence and punishment, through a civil action that secures
substantial civil penalties In addition to Injunctlve relief. Moreover,
recent experience Indicates that, while many convictions may result In a
period of Incarceration, criminal sentences are sometimes limited to mone-
tary fines and a probationary period. Thus, the use of the additional time
and resources necessary to pursue a criminal Investigation simultaneously
with a civil enforcement action (or vice versa) may not be justified.
Nonetheless, criminal enforcement has certain advantages. Criminal actions
may proceed to quicker resolution; they can reach Individuals; and even
where only fines and probation result, they may have a substantial deter-
rent effect. Moreover, under the recently enacted Alternative Fines Act,
18 U.S.C. §3623, a court may fine defendant's convicted of a misdemeanor
(punishable by more than 6 months of Incarceration) up to $100,000 per of-
fense 0£ twice the amount of the pecuniary benefit gained from the offense
or twice the amount of the pecuniary loss caused to another by the offense.
Criminal Enforcement Priorities
The Office of Criminal Enforcement of the Office of Enforcement and Compli-
ance Monitoring (OECM), In conjunction with the Agency program offices, has
developed Investigative priorities In each of the Agency's program areas.
Through this effort, EPA focuses the Investigative resources on the most
serious cases of environmental misconduct. These priorities are fluid and
are modified to reflect changing programmatic circumstances. In addition,
the creation of these priorities does not preclude the possibility of a
criminal referral for conduct not falling within these Investigative
priorities. (See Criminal Enforcement Priorities for the Environmental
Protection Agency, October 12, 1982.)
The priorities for the Clean Air Act are listed below. The order of list-
ing Is not Intended to create a ranking within the priorities.
Violations of Hazardous Air Pollutant Standards. Section 113(c)(l)(C) of
the CAA establishes misdemeanor penalties of one year of Imprisonment and a
$25,000 fine for knowing violations of standards for hazardous air
pollutants. A high Investigative priority will be placed on knowing
violations of these standards that result In, or threaten, significant
environmental contamination or human health hazard, or where strong
Indications of willfulness exist.
CAA Compliance/Enforcement 9-5 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
Violations of New Source Performance Standards. Section H3(c)(l)(C) of
the CAA establishes misdemeanor penalties of one year of imprisonment and a
$25,000 fine for knowing violations of new source performance standards. A
high investigative priority will be placed on knowing violations of these
standards that result In, or threaten, significant environmental contamina-
tion or human health hazard, or where strong indications of willfulness
exist.
Violations of Administrative Orders or Delayed Compliance Orders. Section
113(c)(l)(B) of the CAA establishes misdemeanor penalties of one year of
Imprisonment and a $25,000 fine for knowing violations of orders issued by
the Administrator under Sections I13(a) or 113(d). A high investigative
priority will be placed on knowing violations of these standards that
result in, or threaten, significant environmental contamination or human
health hazard, or where strong Indications of willfulness exist.
Falsification of CAA Records and Tampering. Section 113(c)(2) of the CAA
establishes misdemeanor penalties of six months of imprisonment and a
$10,000 fine for knowing falsification of records filed or required to be
maintained under the CAA and for tampering with monitoring devices required
to be maintained under the Act. EPA places a high investigative priority
on cases in which the falsification or tampering has, or could reasonably
be expected to have, a significant impact on EPA's regulatory process or
declsionmaking.
The following elements are necessary to sustain a conviction for falsifying
records:
• The defendant made a statement, representation, or certification in
a document required to be filed or maintained under the CAA;
• The statement, representation, or certification was false; and
• The defendant knowingly made the false statement, representation,
or certification.
Violations of State Implementation Plans. Section 113(c)(l)(A) of the CAA
carries misdemeanor penalties of one year of imprisonment and a $25,000
fine for knowing violations of state Implementation plans (SIPs) during a
period of federally assumed enforcement or more than 30 days after receiv-
ing a notice of violation from the Administrator. A high investigative
priority will be placed on cases of knowing violation of SIP limitations
that result in, or threaten, significant environmental contamination or
human health hazard, or where strong Indications of willfulness exist.
Procedures for the Investigation and Referral of a Criminal Case
On January 7, 1985, EPA issued "Functions and General Operating Procedures
for the Criminal Enforcement Program" (Exhibit 9-2). These procedures
establish the process by which suspected criminal activity is investigated,
CAA Conpllance/Enforceaent 9-6 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
referred, and prosecuted by EPA offices and the Department of Justice
(DOJ). The following discussion of Investigation and referral procedures
is based on that document.
Investigation
The Office of Criminal Investigations (OCI) of the National Enforcement
Investigations Center (NEIC) performs the primary role In Investigating and
referring to the DOJ allegations of criminal misconduct. This office Is
staffed by experienced criminal Investigators located In each of five area
field offices and five area sub-offices, covering all ten EPA Regions, and
at EPA Headquarters. Exhibit 9-3 contains a directory of the OCI and of
Its offices.
EPA may receive an Initial allegation of potential criminal activity from
any of several sources, Including state agencies, routine compliance
Inspections, public-spirited or disgruntled plant employees, and citizen
groups. The Agency employee who receives the allegation should discuss the
Information with a supervisor and then send It Immediately to the Speclal-
Agent-In-Charge or Resldent-Agent-In-Charge of the responsible field
office. The Speclal-Agent-In-Charge opens a case file* and assigns a
criminal Investigator (known as a Special Agent) for follow-up.
If the reliability of the allegation is unclear, the Special Agent will
conduct a preliminary Inquiry solely to determine the credibility of the
allegation and to make an Initial assessment of the need for more thorough
Investigation. This Initial Inquiry Is brief and does not Involve an
extensive commitment of resources or time. The sole purpose is to reach an
initial determination on the need for a complete Investigation.
Once a determination has been made by OCI that a thorough Investigation Is
warranted, the Special Agent Immediately contacts the Office of Regional
Counsel (ORC) In the Region where the Investigation Is to be conducted.
The ORC determines whether a civil enforcement action Is pending or
contemplated against the investigative target and assigns an attorney to
work] with the Investigator during the case development process and, if the
case;Is brought, throughout the prosecution.
The regional attorney and Special Agent also contact the appropriate
regional program office to ensure that no administrative enforcement action
Is pending or contemplated. While simultaneous administrative/civil and
criminal enforcement actions are legally permissible, they will be the
exception, rather than the rule. Generally, EPA holds an administrative or
The opening of a case file does not commit the Agency to proceed with a
criminal referral at the culmination of the investigation, nor does It
reflect an Agency decision that criminal conduct has occurred. All
enforcement options remain open and should be considered until referral
to the DOJ.
CAA Compliance/Enforcement 9-7 Guidance Manual 1986
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Chapter Nine Crlainal Enforcenent
civil proceeding in abeyance pending the resolution of the criminal Inves-
tigation. One exception is a situation in which emergency remedial
response is mandated.
Where parallel administrative/civil and criminal enforcement proceedings
are appropriate, ORC will prepare a recommendation and request for such a
course of action (in consultation with the Special-Agent-in-Charge) and
forward It to the Director of the Office of Criminal Enforcement and
Special Litigation for submission to the Assistant Administrator for
Enforcement and Compliance Monitoring for approval. Upon approval, such
parallel proceedings will thereafter be conducted in accordance with the
Agency guidance, "Policy and Procedures on Parallel Proceedings at the
Environmental Protection Agency," January 23, 1984. Agency supervisors
will be guided in managing the respective arms of those proceedings by the
further guidance of "The Role of EPA Supervisors During Parallel Proceed-
ings" March 12, 1985.
The Special Agent, acting under the supervision of the area office
Special-Agent-In-Charge or Resident-Agent-In-Charge, has primary responsi-
bility for managing the investigation. The Special Agent is responsible
for determining the basic investigative approach and takes the lead in
conducting interviews; assembling and reviewing records; planning and exe-
cuting surveillances; coordinating with state, federal, and local law
enforcement agencies; planning and executing searches; developing Infor-
mants; and performing other investigative tasks. A technical person from
the Regional Office and a regional attorney work with the Special Agent
during those portions of an investigation requiring technical and legal
expertise.
Referral
A referral recommendation is prepared based on the results of the indepen-
dent field Investigation, or when the case cannot or should not proceed any
further without the initiation of a grand jury investigation by DOJ. The
Special Agent Is responsible for preparing the report summarizing the
Investigation (known as the "Report of Investigation") in consultation with
other members of the Investigative team (headquarters and regional legal
and technical staff and the DOJ). The regional attorney prepares a
separate legal analysis of the case to be included along with the Report of
Investigation.
The Special-Agent-In-Charge and the Regional Counsel review the Report of
Investigation and act as joint signatories. The regional or headquarters
program office or the NEIC reviews technical portions of the report—
depending on which office was the source of technical support. During this
technical review, one of these technical offices should confirm that it has
sufficient resources to support litigation.
Following completion of the report and concurrence in the report recommen-
dation by the Special-Agent-In-Charge and the Regional Counsel, the Region
sends five copies of the report and all exhibits to the Director, Office of
Criminal Enforcement (LE-134C), U.S. Environmental Protection Agency,
CAA Go«pllane*/Enforcement 9-8 Guidance Manual 1986
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Chapter Nine ^ Criminal Enforcement
401 M Street S.W., Washington, D.C. 20460. Headquarters sends copies of
the report to the local United States Attorney and the DOJ after the
Assistant Administrator for Enforcement and Compliance Monitoring approves
the referral.
If either the Special-Agent-In-Charge or the Regional Counsel opposes the
referral, that official includes a statement of the reasons for the deci-
sion and makes an alternative recommendation (i.e. , close out investiga-
tion, change to civil referral, or change to administrative action). The
package is nevertheless sent to the Office of Criminal Enforcement for
review, and the Assistant Administrator for Enforcement and Compliance
Monitoring makes the final referral decision.
The Headquarters review focuses on the adequacy of case development, suffi-
ciency of evidence, adherence to the criminal enforcement priorities of the
Agency, legal Issues of first Impression, consistency with related program
office policy, and general prosecutorial merit. This review should also
take into consideration any actions or statements that could undermine a
prosecution. In cases Involving particularly complex issues of law, the
Office of Criminal Enforcement consults the Office of General Counsel. If,
following this review process, the Assistant Administrator accepts the
referral recommendation, he or she sends the report simultaneously to both
the United States Attorney and the DOJ. The Office of Criminal Enforcement
drafts cover letters to those offices.
Referral Package Format
Referral packages should he prepared in accordance with "Format for
Criminal Case Referrals," issued by NEIC on October 31, 1984. Exhibit 9-4
contains a copy of this format.*
References
Any Agency employee who Is involved in the Investigation and referral to
the Department of Justice of allegations of criminal violations of the CAA
should be familiar with the Agency documents listed below. Although a
digested form of some of this material is contained in this chapter, most
of the Items are not covered in detail. Copies may be obtained by
Special procedures may be used in infrequent and unusual circumstances
where unusual expedition of the criminal referral process is necessary
(e.g., where immediate resort to the grand Jury's compulsory process may
be required in Investigations of ongoing illegal activity or when there
are grounds to anticipate the flight of a witness or defendant). Such
procedures are set forth in Part IV of "Functions and Operating
Procedures for the Criminal Enforcement Program" (Exhibit 9-4).
CAA Compliance/Enforcement 9-9 Guidance Manual 1986
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Chapter Nine Criminal Enforcement
contacting the Office of Criminal Enforcement, OECM, LE-L34C, EPA Head-
quarters, FTS-557-7410.
• Functions and General Operating Procedures for the Criminal
Enforcement Program, January 7, 1985;
• Criminal Enforcement Priorities for the Environmental Protection
Agency, October 12, 1982;
• Agency Guidelines for Participation In Grand Jury Investigations,
April 30, 1982;
• The Use of Administrative Discovery Devices In the Development of
Cases Assigned to the Office of Criminal Investigations, February
16, 1984;
• Policy and Procedures on Parallel Proceedings at the Environmental
Protection Agency, January 23, 1984;
• Role of EPA Supervisors During Parallel Proceedings, March 12,
1985;
• Guidance Concerning Compliance with the Jencks Act, November 21,
1983;
• Guidance on Sampling, Preservation, and Disposal of Technical
Evidence In Criminal Enforcement Matters, June 11, 1984; and
• Media Relations on Matters Pertaining to EPA's Criminal Enforcement
Program (draft).
CAA Compliance/Enforcement 9-10 Guidance Manual 1986
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Chapter Nine Exhibit 9-1
Criminal Enforcement Provisions of the Clean Air Act
Section 113
(c)(l) Any person who knowingly—
(A) violates any requirement of an applicable
implementation plan (1) during any period of Federally
assumed enforcement, or (11) more than 30 days after
having been notified by the Administrator under
subsection (a)(l) of this section that such person is
violating such requirement, or
(B) violates or falls or refuses to comply with
any order under section 7419 of this title or under
subsection (a) or (d) of this section, or 7412(c)
(C) violates section 7411(e), section 7412(c) of
this title; or
(D) violates any requirement of section 119(g) (as
In effect before August 7, 1977), subsection (b)(7) or
(d)(5) of section 7420 of this title (relating to
noncompllance penalties), or any requirement of part B
of this subchapter (relating to ozone).
shall be punished by a fine or not more than $25,000 per
day of violation, or by Imprisonment for not more than one
year, or by both. If the conviction Is for a violation
committed after the first conviction of such person under
this paragraph, punishment shall be by a fine of not more
than $50,000 per day of violation, or by Imprisonment for
not more than two years, or by both.
(2) Any person who knowingly makes any false
statement, representation, or certification In any
application, record, report, plan, or other document filed
or required to be maintained under this chapter or who
falsifies, tampers with, or knowingly renders Inaccurate
any monitoring device or method required to be maintained
under this chapter; shall upon conviction, be punished by a
fine of not more than $10,000, or by Imprisonment for not
more than six months, or by both.
(3) For the purpose of this subsection, the term
"person" Includes, In addition to the entitles referred to
In section 7602(e) of this title, any responsible corporate
officer.
CAA Coapllance/Enforcement 9-11 Guidance Manual 1986
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Chapter Nine Exhibit 9-2
Functions and General Operating Procedures
for the Criminal Enforcement Program
FUNCTIONS
and
GENERAL OPERATING PROCEDURES
for the
CRIMINAL ENFORCEMENT PROGRAM
CAA Compliance/Enforcement 9-12 Guidance Manual 1986
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Chapter Nine Exhibit 9-2
I. PURPOSE AND PHILOSOPHY
These General Operating Procedures establish the process by
which suspected criminal activity Is investigated and prosecuted
by the various agencies and officials involved. In addition,
the functions, roles and relationships of these entities are
set forth under a variety of circumstances. Because of the
need in each case to involve many geographically dispersed
professionals of various disciplines, this guidance emphasizes
a "team" approach to the investigation and prosecution of
criminal cases. The procedures set forth below are not to be
rigidly interpreted. It is recognized that certain cases may
require flexibility to proceed successfully.
II. ROLES AND RELATIONSHIPS
Most aspects of the Agency's enforcement program have
been delegated in significant measure to the Regional Offices.
The critical stage in development of the criminal enforcement
program, the need for specialized expertise and consistency,
however, dictate a centralized management approach for the
program. Management of criminal legal and policy functions will
be focused at Headquarters, and the management of criminal
investigative functions will be focused at the National Enforce-
ment Investigations Center (NEIC). It is understood that the
actual enforcement efforts in each case will require a team
effort which relies upon the contribution of Headquarters
and regional legal and technical staff and the Department of
Justice (DOJ).
The Office of Enforcement and Compliance Monitoring (OECM):
The Assistant Administrator for Enforcement and Compliance
Monitoring
The Administrator has delegated the responsibility to
develop and implement this program to the Assistant Administrator
for Enforcement and Compliance Monitoring (the Assistant Admini-
strator). The Assistant Administrator maintains policy and
operational control for this program through the Associate
Enforcement Counsel for Criminal Enforcement and Special
Litigation (the Associate Enforcement Counsel) and the Director,
NEIC.
Criminal enforcement policies and priorities are established
through the Assistant Administrator. The Assistant Administrator
oversees the criminal investigating program, and reviews and
approves criminal referrals to DOJ. The Assistant Administrator
ensures consistent and complementary use of the civil and
criminal enforcement authorities available to the Agency
(including, where appropriate, parallel proceedings), develops
and defends the budget, and allocates investigative resources
for the program.
CAA Compliance/Enforcement 9-13 Guidance Manual 1986
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Chapter Nine ] Exhibit 9-2
-2-
The Associate Enforcement Counsel for Criminal Enforcement and
Special Litigation ~~ ~~
The Associate Enforcement Counsel, through the Assistant
Enforcement Counsel for Criminal Enforcement (the Assistant
Enforcement Counsel), is responsible for providing legal
guidance to the Agency on all aspects of the criminal enforcement
program, informing the Assistant Administrator of ongoing
case activity and articulating investigation and litigation
priorities by developing an enforcement strategy, together with
the NEIC, for the program. To implement these responsibilities,
the Associate Enforcement Counsel through the Assistant Enforcement
Counsel, supervises the Criminal Enforcement Division (CED)
which coordinates the team investigation and prosecution of
criminal cases with DOJ's Land and Natural Resources Division
and local federal and state agencies; provides legal advice and
support to the NEIC's Office of Criminal Investigations (OCI)
and to the Regional Counsels; reviews all criminal referrals
to DOJ; participates in the prosecution of selected cases of
national importance or that exceed the resources of local or
regional offices; makes recommendations on the use of parallel
proceedings; develops training programs for agency legal and
regional program staff; issues legal updates of significant
decisions by the United States Supreme Court and other courts;
and reviews the legal soundness and consistency of guidances
and procedures developed throughout the Agency.
The National Enforcement Investigations Center (NEIC)
The Director, NEIC, through the Assistant Director for
Criminal Investigations (the Assistant Director) , monitors
and supervises all investigative activities arising under the
criminal enforcement program through the Office of Criminal
Investigations' Area Offices (and Resident Offices), the Washington
Staff Office, and the NEIC Investigative Unit. The NEIC
formulates procedural and technical guidance for the conduct
of Agency investigations.
The Director, NEIC, assumes overall responsibility for
recruiting the Agency's investigative staff; informing the
Assistant Administrator of investigative activity; and recom-
mending how investigative resources should be allocated among
the Regions consistent with national enforcement strategies.
The NEIC develops and implements training programs on operational
aspects of criminal case development for Agency personnel. It
assumes responsibility for technical support in Agency criminal
investigations that have inter-regional ramifications or
that exceed the resources of the technical staffs of individual
Area or Regional Offices.
The NEIC oversees the criminal investigative activity in
each of the Area Offices. Further, while day-to-day investigative
CAA Compliance/Enforcement 9-14 Guidance Manual 1986
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Chapter Nine Exhibit 9-2
-3-
deciaions are usually made in the Area Office under the super-
vision of a. Special-Agent-in-Charge (SAIC), in designated
cases of national significance or of particular sensitivity,
the Assistant Director has the authority to direct the investi-
gative activity of any Area Office. The Assistant Director
also reviews and concurs in performance evaluations of the
criminal investigators (Special Agents) and conducts the
performance evaluations of the SAICs. Final approval of SAIC
performance evaluations is given by tho Director, NEIC.
Area Offices; A key component of the NEIC'a centralized
management approach to the criminal enforcement program has
been the development of Area Offices. Special Agents constitute
Headquarters rather than regional resources and are part of the
staff of NEIC. They are housed in en Area Office and are supervised
by a SAIC who reports to the Assistant Director. The management
of any given investigation is the primary responsibility of
the Special Agent, acting under the immediate supervision of
the SAIC.
The SAIC in each Area Office ensures that events (witness
interviews, investigative developments, opening and closing
of investigations) in each of the cases and investigations are
properly documented by the investigative staff utilizing standard
agency forms. In certain Regions, the numbr of Special Agents
assigned and the investigative caseload has not yet risen to
a level justifying the presence of an Area Office. A Resident
Office will be located in each such Region, directed by a
Resident-Agent-in-Charge who reports in turn to the SAIC who
is responsible for the Region in which the Area Resident Office
is located.
NEIC Investigative Unit; A Special NEIC Investigative
Unit, also staffed by experienced Special Agents, is located
at the NEIC headquarters in Denver. Unlike Area Offices,
this unit has national jurisdiction, focusing on cases that
span the Jurisdiction of two or more Area Offices, that set
national precedent or where investigative demands are beyond
the capacity of a particular Area Office. Investigators
assigned to this unit also participate, where appropriate, in
investigations in which the NEIC is providing technical support.
The NEIC Investigative Unit -- like the Area Offices -- is
managed on a day-to-day basis by a SAIC, who reports in turn to
the Assistant Director.
Washington Staff Office: The Washington Staff Office
serves as the OCI's focal point at EPA Headquarters and provides
a liaison with all Headquarters program offices and with law
enforcement agencies located in the Washington area. This
office selectively participates in investigations of national
importance.
CAA Compliance/Enforcement 9-15 Guidance Manual 1986
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Chapter Nine Exhibit 9-2
-4-
The Office of Regional Counsel (ORC)
Special Agents will coordinate closely with Regional Attoneys
throughout the Investigative process and will utilize the
expertise of selected Regional Attorneys for advice on specific
cases and EPA s statutes and regulations. To facilitate this
consultation, each ORC will designate a Regional Attorney to
serve as a contact with the criminal enforcement program.
Furthermore, this Regional Attorney will be assigned to a case
early In the case development process to assist as needed In
the Investigation, Indictment, and prosecution. Both the
Regional Attorney and the Special Agent coordinate and consult
with the CED In resolving Issues concerning the application
of criminal law to the criminal enforcement of environmental
statutes.
The Regional Attorney may become a aember of the prosecu-
tion team, joining the prosecutor, the attorney from the CED
technical and program personnel and the Special Agent. The
Regional Attorney may assist In evidence review or documenta-
tion and statutory and regulatory Interpretation and other
functions as assigned by the Regional Counsel necessary for
the successful prosecution of the case. The CED supports such
activities by providing specialized expertise In the application
of criminal law to environmental enforcement.
The Regional Administrator
The Regional Administrator, or his deslgnee, will be kept
apprised of criminal enforcement matters occurring In the
Region. To coordinate criminal Investigations with other
Agency activities, notification to the Regional Administrator
should occur for example, when a decision is made to pursue
parallel civil/criminal enforcement proceedings, or when inves-
tigations involve companies or individuals who are also involved
"v^y-ii e A|ency on other, unrelated matters. It is the respon-
sibility of the Regional Counsels (as advised by the Regional
Attorney assigned to assist In a criminal Investigation) to
timely notify the Regional Administrators of appropriate cases
and developments. The Director, NEIC, and appropriate Regional
Program Division Directors will notify the Regional Administrators
of appropriate Investigative situations. Once apprised of a
criminal enforcement activity, It Is the Regional Administra-
tor a function to notify State regulatory agencies of Important
developments In criminal Investigations as appropriate.
The Program Assistant Administrators
As the national program managers, the Program Assistant
Administrators work with the CED in the establishment of
Agency-wide and media-specific compliance and enforcement
priorities. These priorities will provide a framework for
decisions on the allocation of EPA's criminal investigative
and technical resources.
CAA Compliance/Enforcement 9-16 Guidance Manual 1986
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Chapter Nine Exhibit 9-2
-5-
As in other enforcement areas, Program Assistant Adminis-
trators provide technical support and other resources to Head-
quarters and to the regions to support criminal investigations,
case development and prosecution. NEIC and the CEO will provide
the Program Assistant Administrators with projections of
anticipated resource needs to ensure adequate technical and
legal support for such purposes.
Each Program Assistant Administrator will appoint one
individual to coordinate with the CED and the NEIC on criminal
enforcement matters. Subject to the normal constraints on
dissemination of information concerning criminal cases,
consultation will occur during the referral review process
to ensure that a specific case does not raise policy issues
that should be brought to the attention of the Assistant
Administrator prior to the referral decision.
The Regional Program Division Directors
The Regional Program Division Directors play an important
role in the case development process by providing upon request
technical support for an investigation through consultation or
actual field work, as needed and as resources are available.
The expertise of the technical staff in the various media is
an excellent resource for case development. Also, in those
cases that are prosecuted and go to trial it will often be
necessary for the regional technical staff to testify as deter-
mined by the prosecutor.
The Regional Program Division Directors will designate a
contact staff member for support of criminal investigations
involving the functions of that division.
The Office of General Counsel (OGC)
In criminal enforcement matters, as in other areas of Agency
activity, the General Counsel is responsible for. interpreting
laws and regulations to ensure their consistent application.
OGC attorneys also assist in resolving legal issues involving
the interpretation of environmental statutes that arise
during investigations, during the review of criminal referrals,
or during the prosecution of criminal cases. OGC also partici-
pates in the preparation of briefs and other court documents
in criminal cases, and, in consultation with CED, makes
determinations whether to appeal adverse court decisions.
The Department of Justice (DOJ)
DOJ and local United States Attorneys provide legal advice
upon request during field investigations and obtain criminal
search warrants and other court processes in support of EPA
criminal cases. They direct the conduct of grand jury investi-
gations and proceedings, and all prosecutions and appeals of
CAA Compliance/Enforcement 9-17 Guidance Manual 1986
-------
Chapter Nine ] Exhibit 9-2
-6-
federal criminal environmental cases. In consultation with
EPA attorneys and investigators, DOJ prosecutors negotiate and
accept plea agreements and make sentencing recommendations.
In addition, DOJ monitors the exercise of law enforcement
powers by EPA Special Agents.
III. INITIATION AND CONDUCT OF AN INVESTIGATION
This Section describes the interaction of the participating
offices in the initiation and pursuit of • routine investigation.
The roles described herein are for guidance and can be changed
to accommodate the special circumstances of the investigation
and prosecution of a specific case.
Initiation of an Investigation: Preliminary Inquiry
An initial "lead" or allegation of potential criminal
activity may come to the Agency from any of several sources,
including State agencies, routine compliance inspections,
citizens or disgruntled company employees, among others.
Regardless of its source, the SAIC and/or the Resident-Agent-in
Charge (RAIC) should be immediately notified. The SAIC or
RAIC evaluates the lead and, if necessary, assigns a Special
Agent for follow-up, assigns a case number and opens an investi-
gative file.
If the reliability of the lead is unclear, the Special
Agent conducts a preliminary inquiry to determine the credibility
of the allegation and makes an initial assessment of the need
for a more thorough investigation. This initial inquiry is
brief, and involves no extensive commitment of resources or
time. The purpose is to reach an initial determination on the
need for a complete investigation. The CED is consulted if
this determination concerns legal issues of criminal liability.
Conduct of an Investigation
Because the complexity of many environmental criminal
investigations requires the skills of various disciplines, a
team approach to the prosecution is necessary. If, after the
preliminary inquiry, the SAIC feels that the lead warrants
thorough investigation, the Special Agent will immediately
contact the appropriate Regional Counsel to determine whether
any civil enforcement action is pending or contemplated against
the investigative target. The Special Agent contacts the
designated regional program contact person for assistance and
transmittal of information when necessary. The Special Agent
contacts the appropriate Regional Program Division Directors
to determine whether any administrative enforcement action is
pending or contemplated against the target. For any particular
case where technical support during the investigation is needed
CAA Compliance/Enforcement 9-18 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-2
-7-
che appropriate Regional Program Division Director will be
asked to designate specific individuals to work with the Special
Agent during the investigation. These activities are carried
out in consultation with the NEIC.
Overall management of the investigation is the sole responsi-
bility of the Special Agent, acting under the supervision of
the RAIC or SAIC. The Special Agent is responsible for determining
the basic investigative approach, and takes the lead in conducting
interviews, assembling and reviewing records, planning and
executing surveillances, coordinating with the United States
Attorney's offices and other federal, state and local law
enforcement agencies, obtaining and executing search warrants,
communicating with informants, contacting other witnesses and
performing other investigative functions.
In pursuing an investigation, the Special Agent is responsible
for completing all required reports and coordination and
notification requirements (interview summaries, reports of
investigation, etc.). As a general practice, only one member
of the investigative team will record or document any stage or
development in the investigation.
Issues and problems concerning the use of discovery devices,
the confidentiality of business information, delegations of
authority within the Agency, interpretation and application of
State statutes and enforcement proceedings, internal EPA policy
and guidance, the impact of decisions by the United States
Supreme Court and other courts, and elements of proof under
EPA's environmental criminal provisions are legal issues that
will have to be resolved by the CED, ORC and OGC contact. It is
the responsibility of the Special Agent to consult with and
seek the guidance of the legal contact of the ORC and the
Assistant Enforcement Counsel on these and similar issues
throughout the pre-referral investigative process.
Parallel Investigations and Proceedings 1/
While simultaneous administrative/civil and criminal enforce-
ment actions are legally permissible, they are resource-intensive
I/ Agency guidelines on parallel proceedings were issued on
January 23, 1984. (See memorandum "Policy and Procedures on
Parallel Proceedings at the Environmental Protection Agency",
Assistant Administrator. Office of Enforcement and Compliance
Monitoring to Assistant Administrators, Regional Administrators.
Regional Counsels, and Director, NEIC, January 23, 1984).
Agency officials and staff should consult these guidelines
prior to conducting parallel investigations or proceedings.
Further guidance on specific Issues concerning parallel
proceedings is expected to be published.
CAA Compliance/Enforcement 9-19 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-2
-8-
and fraught with potential legal pitfalls. Parallel proceedings
will nevertheless be pursued where the public interest requires
a dual approach, e.g., where both injunctive relief or remedial
action and criminal sanctions are warranted. Where injunctive
relief is not needed, and where the conduct warrants criminal
sanctions, an administrative or civil proceeding seeking punitive
penalties would generally be held in abeyance by the Region
pending the resolution of the criminal investigation. The
criminal referral and the parallel administrative/civil action
of the Regional Office will each be considered to be separate
referrals for Regional management reporting purposes. Where
parallel proceedings are Justified, the criminal investigation
will be pursued in accordance with Agency guidance on the
conduct of a parallel proceeding. The Assistant Administrator
will approve the conduct of parallel proceedings upon the
advice of the Associate Enforcement Counsel and will notify
the Regional Administrator of the approval.
Coordination with State/Local Enforcement
It is recognized that many investigations and cases can be
prosecuted at either the federal or state/local level. It is
the goal under this policy over time to refer more cases more
frequently to the state/local level as the abilities and resources
at those levels increase and the case load at the federal
level becomes more difficult to manage. Although this concurrent
jurisdiction raises some issues (e.g., how to avoid duplication
of effort, how to obtain the best result, should separate
cases ever be brought, etc.), they do not warrant the issuance
of a formal general operating policy in this area. If the
need becomes apparent, a policy will be drafted for review and
comment.
Whatever determinations are made about the level at which
environmental criminal cases should be prosecuted, it is
vitally important that at the investigative level close
coordination is maintained between and among federal and state/
local law enforcement and regulatory agencies. SAICs are
responsible for ensuring regular communication, exchanges of
information under appropriate assurances of security, and
coordinated actions between OCI and such agencies in investigative
activities generally and with respect to specific investigations.
IV. REFERRAL PROCEDURES
Routine Referrals
Criminal cases shall be developed as thoroughly as possible
prior to referral to DOJ. During this investigative and case
CAA Compliance/Enforcement 9-20 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-2
-9-
preparation process, informal coordination among the Special
Agent, the CED, the Regional Attorney, DOJ and local United
Statea Attorneys is encouraged.
A referral recommendation will be developed when the field
investigation has been completed. At this point, the results
of the investigation are assembled in a referral package by the
Special Agent. The Special Agent assigned to the investi-
gation is responsible for coordinating the preparation of the
overall referral package and consulting with other members of
Che investigative team. A separate legal analysis is drafted
by the Regional Attorney.
Once the referral package is prepared, it is reviewed by
the SAIC and the Regional Counsel, who act as joint signatories.
Technical portions of the package are also reviewed by the
Region or Headquarters program office or the NEIC, depending
upon the source of technical support. During this technical
review, the technical resources to support the ensuing
prosecution should also be identified and their availability
specifically confirmed by the appropriate technical office.
Following completion of the referral package and concur-
rence in the referral recommendation by the SAIC and the
Regional Counsel, five copies of the referral package (with
all exhibits) should be directed to the Associate Enforcement
Counsel, and one copy to the Director, NEIC. No copies of
this referral package will be sent to the local United States
Attorney or DOJ until Headquarters has reviewed the referral
package and the Assistant Administrator has approved the
referral. However, the Special Agent is encouraged to consult
and review documents with the local AUSA or DOJ prosecutor who
will be handling the case at the earliest possible time, as
needed for legal advice and for case development strategy at
any point in the invesigative process, even if the formal
referral has not yet been made.
The Headquarters review will focus on the adequacy of case
development, adherence to the criminal enforcement priorities
of the Agency, legal issues of first impression, consistency
with related program office policy, and overall prosecutorial
merit. In cases involving particularly complex issues of law,
the CED will also consult with OGC and DOJ attorneys. If,
following this review process, the referral recommendation is
accepted by the Aasisistant Administrator, copies of the referral
package will be directed simultaneously to the local United
States Attorney and to DOJ. Appropriate cover letters will be
drafted by the CED for the signature of the Assistant Administrator.
CAA Compliance/Enforcement 9-21 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-2
-10-
Emergency Assistance from United States Attorneys
In unusual circumstances, it may be necessary to secure
the immediate assistance of the local United States Attorney
for legal process. For example, immediate resort to the grand
Jury's compulsory process may be required in investigations of
ongoing illegal activity, or when there are grounds to anticipate
the flight of a witness or defendant. Such situations will
arise infrequently. When they arise, the SAIC, with the
knowledge of the Regional Counsel, will contact the NEIC,
which will in turn consult with the CED. Following approval
by the Assistant Administrator, telephonic authorization to
contact the AUSA for appropriate assistance will be granted in
appropriate cases. Copies of all materials normally included
in a referral package (which have been transmitted to the
local AUSA in connection with the emergency situation) will
then be directed immediately and simultaneously to NEIC, to
the CED and to the Environmental Crimes Unit (ECU) of DOJ'a
Land and Natural Resources Division. These copies will be
sent within 48 hours. Appropriate follow-up letters to the
AUSA and DOJ will be drafted by the CED confirming the emergency
situation.
V. POST-REFERRAL PROCEDURES
Following referral to DOJ, responsibility for managing
the prosecution rests with the prosecutor assigned to the
case. Usually, the prosecutor is a member of the local United
States Attorney's office. In cases of national significance
or beyond the resources of the local United States Attorney,
the case may be managed by the ECU. The ECU monitors the
progress of federal environmental criminal referrals throughout
the country. Within EPA, oversight of the criminal prosecution
docket is the responsibility of the CED.
The Special Agent responsible for the investigation, working
in close cooperation with the Regional Attorney assigned to the
case, acts as primary liaison with DOJ or the local AUSA.
This Special Agent performs and coordinates additional investi-
gation as required and usually will be designated a special
agent of the grand Jury if a grand Jury presentation or investi-
gation is initiated.
Many of EPA's criminal cases are developed further
through the grand Jury. Stringent, closely-monitored rules
govern the conduct of grand Jury investigations. To ensure
the secrecy of the grand jury process, no one may have access
to information received by the grand Jury without court per-
CAA Compliance/Enforcement 9-22 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-2
-11-
mission or rule authorization unless otherwise permitted by lav.
Agency officials are responsible for familiarizing themselves
completely with these rules prior to participating in a
grand jury investigation. 2/
The CEO and ORC attorneys are responsible for fulfilling
requests for legal assistance during the litigation of the
case. CEO attorneys will coordinate with Regional Attorneys
and OGC in responding to these requests. Regional program
offices and NEIC technical staff will be available to provide
technical support as needed.
VI. PLEA BARGAINING
Negotiation of settlements in criminal cases (i.e., plea
bargaining) is the sole responsibility of OOJ and the local
AUSA although consultation with the investigative team and
the Regional Administrator is strongly encouraged. Following
referral of a criminal case, Agency officials should never
enter into independent negotiations or discussions with
the subject(a) of that referral without prior coordination
with and approval from the DOJ attorney or the AUSA overseeing
the case. It is, of course, entirely appropriate for Agency
officials working on the criminal prosecution — including
investigators, attorneys and technical personnel — to provide
input, suggestions and advice during the negotiation process.
OOJ or the AUSA conducting settlement negotiations should
consult the CEO before entering into any final settlement.
VII. CLOSING INVESTIGATIONS
A case may be closed prior to or after referral to OOJ for
one or more of the following reasons: initial allegation unfounded,
referral for administrative/civil enforcement action, referral
to another agency or law enforcement office, lack of prosecutorial
21 Agency guidelines on grand Jury investigations were cir-
culated on April 30, 1982. (See memorandum "Agency Guidelines
for Participation in Grand Jury Investigations , Associate
Administrator for Legal and Enforcement Counsel and General
Counsel to Assistant Administrators, Regional Administrators,
Regional Counsels and Director, NEIC, April 30, 1982.) Agency
officials should consult these guidelines prior to participa-
tion with DOJ in a grand jury investigation.
CAA Compliance/Enforcement 9-23 Guidance Manual 1986
-------
Exhlbic 9-2
-12-
merlt, declination by DOJ or reaoluclon of the case after the
filing of charges. The decision to close an Investigation
(unless It occurs because of court action or a Jury decision)
is one which usually Is made after consultation among EPA
attorneys, the SAIC and the prosecutors (If It occurs after
referral to DOJ).
VIII. DEBARMENT AND SUSPENSION
As stated at 40 C.F.R. § 32.100, "It la EPA's policy to do
business only with participants which properly use federal
assistance. To protect the Interests of the Government, EPA
has the authority to deny participation In Its programs to
those who are either debarred or suspended (listed) for their
Illegal or Improper activities. This guidance sets forth when
and how a referral for debarment is to be made.
Upon Conviction
Under the regulations, only convictions mandate listing.
Immediately upon obtaining a conviction for the violation
of either the Clean Air Act or the Federal Water Pollution
t°?cr?/,Act C0ncernln8 • "facility", as defined in 40 C.F.R.
5 15.3(1), the SAIC in the region where the conviction was
obtained will telephonically notify the CED for purposes of
lurt^n "f"ring the matter for "listing" the violating facility,
The CED will verify the conviction by obtaining a copy of the
court s Judgment of conviction and referring the matter with
the relevant information and documents to the listing official
in OECM.
At Other Times
At any time during the investigation or prosecution of a
case, but before the case is closed, the SAIC may review the
facts of the case to recommend to the Assistant Director whether
a referral should be made to the Director, Grants Administration
Division, for debarment and/or suspension of the person or
company from the opportunity to participate in EPA assistance
or subagreements pursuant to 40 C.F.R. Part 32. If the decision
by the Assistant Director, after reveiw by the Director NEIC
to refer the matter for debarment is made at the time the case
Is to be closed, the Assistant Director will send the relevant
documents along with a report (stating the reasons for the
referral) to the CED, which will review those materials and
if meritorious, make a recommendation for referral through '
the Associate Enforcement Counsel to the Assistant Administrator.
If approved by the Assistant Administrator, the matter will
then be referred to the Director, Grants Administration Division
CAA Compliance/Enforcement 9-24 Guidance Manual 1986
-------
Chanter Mine Exhibit 9-2
-13-
Any decision by the Assistant Director to refer the matter
for debarment while the Investigation Is ongoing or while the
prosecution is pending will be done In accordance with the
procedures for parallel investigations set forth in Section II
of these General Operating Procedures.
IX. REQUESTS FOR ASSISTANCE IN CRIMINAL INVESTIGATIONS
CONDUCTED BY THE JUSTICE DEPARTMENT AND THE FBI
EPA may receive requests for technical, legal or investiga-
tive assistance in environmental criminal cases that are initi-
ated independently by DOJ or the Federal Bureau of Investigation
(FBI).
It is the policy of EPA to provide support for these requests
to the extent resources permit. Requests for legal assistance in
criminal investigations from DOJ or the FBI are reviewed by the
CED and the Assistant Administrator. Requests for investigative
assistance involving substantial investigative and technical
resources are reviewed and determined by the Director of NEIC
and the Assistant Administrator. Accordingly, Regional Offices
that receive any such requests should forward the request to
the appropriate Area Office SAIC.
X. SECURITY OF CRIMINAL INVESTIGATIONS
Information on criminal Investigations must be provided with
restraint, and only to persons who "need to know" the information.
Additionally, special attention must be given to the care and
custody of written materials pertaining to an investigation.
Active criminal investigations shall never be discussed with
personnel outside of the Agency except as is necessary to pursue
the investigation and to prosecute the case. Agency policy is
neither to confirm nor deny the existence of a criminal investi-
gation. Requests for information on active investigations from
the news media must be handled by the appropriate SAIC, the Office
of Public Affairs or the CED consistent with the official
guidance.3y
3/ Agency guidelines on press relations concerning investigations
R"as been circulated in draft. (See memorandum "Press Relations
on Matters Pertaining to EPA's Criminal Enforcement Program",
Assistant Administrator. Office of Enforcement and Compliance
Monitoring and Assistant Administrator.for External Affairs to
Assistant Administrators, Regional Administrators, Regional
Counsels, Director of NEIC and all SAICs).
CAA Compliance/Enforcement 9-25 Guidance Manual 1986
-------
Nlne Exhibit 9-2
-14-
crlmlnal investigative offices and CED offices ar<
equipped with secure office space, filing cabinets, and evidenc.
vaults. Similar security measures must be utilized by Regional
staff assigned to an investigation. ^egionai
XI. RESERVATIONS
The policy and procedures set forth herein, and internal
office procedures adopted pursuant hereto, are not intended
to, do not, and may not be relied upon to, create a right or
benefit, substantive or procedural, enforceable at law by I
party to litigation with the United States. The Agency
reserves the right to take any action alleged to be at variance
YiXJ; ia%£« lea a!id Procedu«a or not in compliance with
internal office procedures that may be adopted pursuant to
these materials.
CAA Compliance/Enforcement^Guidance Manual 1986
-------
Chapter Nine
Exhibit 9-3
Office of Criminal Investigations:
Management and Field Offices
EWIFONMETTAL PRDTECTIOl AGENCY
NATIONAL ENFORCEm/r INVESTIGATIONS CENTER
OFFICE OF CRIMINAL INVESTIGAIICNS
P.O. Box 25227, Bldg. 53
Denver Federal Center
Lakewood. CO 80225
ASSISTANT DIRECTOR:
Secretary:
Janes L. Prange
Claudia Hood
WASHINGTON D.C. STAFF OFFICE:
EPA Criminal Enforcement Division (LE-L34C)
Washington Staff Office
401 M Street. SW
Washington, D.C. 20460
Special Agent-in-Charge:
Secretary:
;.*EIC ::.V-STIGATIVE 'JN
NEIC Office of Criminal Investigations
EPA - '.."EIC Investigative U
P.O. 3ox 25227. Bldg. 53
Denver Federal Center
Denver. OD 30225
Gary Steakley
Catherine Flanagan
Special .iger.t-in-Charge:
Special Agents:
Secretary:
Dar/L :'.cCLary
Kirby O'Neal
Ken Wahl
Bill Smith
Claudia Hood
FTS 776-3215
303/236-3215
FTS 557-7410
703/557-7410
FTS 776-3:15
303'236-3215
FTS 776-3215
FTS 564-1423
303/293-L423
FTS 564-1427
303/293-1427
CAA Compllaoce/Enforcetnent
9-27
Guidance Manual 1986
-------
Chapter Nine
Exhibit 9-3
-2-
NEW YORK AREA OFFICE (Regions I, II, and III) :
NEIC Office of Criminal Investigations
New York Resident Office
EPA - Region II (2CIOO)
26 Federal Plaza
New York, NY 10278
Special Agent-in-Charge:
Special Agent:
Secretary:
Joe Cunningham
Bill Graff
FTS 264-3917
212/264-8917
PHILADELPHIA RESIDENT OFFICE (Region III):
NEIC Office of Criminal Investigations
Philadelphia Area Office
EPA - Region III (3CBDO)
841 Chestnut Building
Philadelphia. PA 19107
Resident Agent-in-Charge:
Special Agents:
Secretarv:
Robert Boodey
Philip Andrew
John Aduddell
llichael Brnes
Ali:e
30S1CN RESIJC.T OFFICE (Region I):
NEIC Office of Criminal Investigations
Boston Resident Office
EPA - Region I
60 »escview Street
Lexington, :& 02173
Resident Agent-in-Charge:
Special Agent:
Clerk-Typist:
Bob Harrington
Peter Gerbino
Catherine Killion
FTS 597-1949
215/597-1949
FTS 597-1360
597-1795
597-1599
617-361-6700
Ext. 218
CAA Compliance/Enforcement
9-28
Guidance Manual 1986
-------
Chapter Nine
Exhibit 9-3
-3-
ATLANTA AREA OFFICE (Regions IV and VT):
MEIC Office of Crioinal Investigations
Atlanta Area Office
EPA - Region IV
345 Courtland Street, NE
Atlanta, GA 30365
Special Agent-in-Charge:
Special Agents:
Secretary:
Dave Riggs
Clayton Clark
Martin Wright
John West
Helen Scoct
DALLAS RESIDENT OFFICE (Region VI):
Office of Criminal Investigations
Dallas Resident Office
EPA - Region VI
Earle Cabell Federal Building
Rocn 3A-8
Dallas, IX 75242
Resident Agent-in-Charge:
' Special Agere:
Clerk-Tv?ist:
Thomas Kohl
Stephen K. Wells
CHICAGO AREA OFFICE (Regions V and VTI) :
NEIC Office of Criminal Investigations
Chicago Area Off/ice
EPA - Region V
230 South Dearborn Street
Chicago, IL 60604
Special Agent-in-Charge:
Special Agents:
i
Secretarv:
Lou Halkias
Judy Roberts Vasey
Mike Konyu
Jiffl Suanson
Ken Wilk
Jeanne Jongleux
FTS 257-4fl85
404/881-4885
FTS 257-4746
257-4747
257-4748
FTS 729-9306
729-9307
729-9321
729-9326
2L4/767-9306
FTS 886-9872
312/886-9872
CAA Compllance/Enforceaent
9-29
Guidance Manual 1986
-------
Chapter Nine
Exhtblt 9-3
-4-
KANSAS CITY RESIDENT OFFICE (Region VTI):
NEIC Office of Criminal Investigations
Kansas Cicy Resident Office
EPA - Region VII
911 Walnut. Roan 602
Kansas Cicy, ID 64106
Resident Agent-in-Charge:
Special Agent:
Clerk Typist:
Greg Spalding
Bill Hare
Karla Colston
SEATTLE AREA OFFICE (Regions DC and X):
NEIC Office of Criminal Investigations
Seattle Area Office
EPA - Region X
1200 Sixth Avenue (M/S 614)
Seattle, WA. 98101
Special Agent-in-Charge:
Special Agents:
Secretary
Dixon McClary
Kenneth Purdy
Ccnmodore Mann
Gerd Hacwig
Gloria Hunt
SAH FPAVCISCC PfSIDEST OFFICE (Rezion DC):
:1EIC Office of Criminal Investigations
San Francisco Resident Office
EPA - P.eeicn DC
215 rraaont Street
San Francisco. CA 94105
Resident Agent-in-Charge:
Special Agent:
Clerk-Typist:
Dave Uilma
Sandra Smith
Tanya Dee/
FTS 758-3449
816/374-3449
FTS 399-3306
206/442-3306
FTS 454-0509
415/974-0509
CAA Coopllaace/Enforceaent
9-30
Guidance Manual 1986
-------
Chapter Sine Exhibit 9-4
Format for Criminal Case Referrals
ENVIRONMENTAL PROTECTION AGcNCY
OFFICE OF ENFORCEMENT
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
BUILDING 33. BOX 35227. DENVER FEDERAL CENTER
OINVU. COIOIAOO 10223
TO: SAC/RACs ^ tun.. October 31, 1984
FROM: James L. Prange -J4y i/*^* a
Assistant DirectlyCrlmiiSt Investigations
SUBJECT: Format for Criminal Case Referrals
1. PURPOSE; This memorandum establishes policy and procedures in the
preparation and submission of a Criminal Case Referral within the
Office of Criminal Investigations, National Enforcement Investigations
Center, U.S. Environmental Protection Agency.
2. SCOPS; The provisions of this order apply to all legal and technical
employees involved in the preparation of Criminal Case Referrals and
to all employees of the Office of Criminal Investigations, National
Enforcement Investigations Center.
3. INTRORJCTION; Effective immediately the following policy and procedures
shall be used in the preparation and submission of Criminal Case
Referrals. These guidelines should be considered as reflecting the
minimum standards necessary in the content of the report.
A. PREPARATION AND SUBMISSION; Criminal Case Referrals will be prepared
in every instance where investigation has disclosed substantial crimi-
nal violations of the federal environmental statutes and regulations,
including ancillary U.S. Code violations, which create a likelihood of
criminal prosecution. The tloeframe for submission may vary, but in all
circumstances submission should be performed whenever a case is substan-
tially proven. This decision for submission should be made in close
coordination with the Deparaent of Justice attorneys. Regional and
Headquarters legal staff, program technical staff, the responsible
CAA Compliance/Enforcement 9-31 Guidance Manual 1986
-------
Chapter Nine _ ExhlMt g.
-2-
Special Agent in Charge of Che Office of Criainal Investigations, and
the Special Agent managing che invescigaclon. The Special Agenc managing
che investigation will be responsible for che preparation and submission
of che Criminal Case Referral in acceptable form.
In Chose criminal investigations not utilizing the services of an
investigative Grand Jury, i.e., the agency will use the Grand Jury
or other court procedures merely co obtain an indictment or information,
che responsible Special Agent will submit a completed Criminal Case
Referral, in accepcable form, to che responsible Special Agent in Charge.
This submission will be done in sufficient doe co allow formal internal
review and approval prior Co submission Co the Department of Justice and
che U.S. Attorney. This will ensure adequate agency review prior to
che commitment of further agency resources in che particular investiga-
tion. The final approval by che Special Agenc in Charge shall provide
notice to che Special Agenc that formal legal proceedings may begin.
5. FORMAT OF A CRIMINAL CASE REFERRAL;
a. Tide Paaet The Tide Page will be in che formac as shown in
Attachment A.
b. Introduction and Signature Page: The Introduction and Signature Page
will be in che format as shown in Attachment B. It will contain
che following information:
(1) EPA criminal file number and NEIC project code.
(2) Federal judicial discrict by name and che corresponding
United States Attorney.
(3) Approval signatures by che Special Agenc in Charge and che
Regional Counsel.
CAA Compllance/Enforceoent 9-32 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-4
-3-
(4) A brief Introduction outlining the principal violations and
che suspect firms and/or individuals.
c. Table of Contents: Each Criminal Case Referral shall have a Table of
Contents that includes, at a nrinjnim^ the following sections:
Section Page
I. Title Page
II. Introduction and Signature Page
III. Statutory and Regulatory Violations
IV. Personal History of Defendants
V. Enforcement and Regulatory History
VI. Description of Evidence
Appendix A. List of Witnesses
Appendix B. List of Exhibits
Appendix C. Exhibits
d. A discussion of the individual sections follows:
Section I - Title Page; See Attachment A.
Section II - Introduction and Signature: See Attachment B.
Example of Introduction:
This report is submitted in regard to alleged violations
of the United States Code by Richard Roe, John Doe, Mary Doe,
and others named as defendants or co-conspirators herein, in
that between January 16, 1983, and July 1, 1983, in Fulton
County, Northern Judicial District of Georgia, they did con-
spire to violate the environmental laws of the United States;
further, that on July 1, 1984, they did cause the illegal
disposal of a listed hazardous waste in Macon County, Middle
Judicial District of Georgia.
CAA Compliance/Enforce o»nt 9-33 Guidance Manual 1986
-------
Chapter Nine Exhibit 9-4
Section II - Statutory and Regulatory Violation;
This section should contain the statutory and regulatory provisions
that provide the basis for the Criminal Case Referral. Pertinent por-
tions of each statute or regulation should be quoted in full.' If
different charges apply to different defendants, it should be noted.
Section III - Personal History of Defendants;
This section will be utilized to provide pertinent personal history
Information on the subjects of the Criminal Case Referral. For
each individual, the following information should be included in the
order listed:
(1) Name.
(2) Title and business.
(3) Home address with zip code.
(4) Home phone.
(5) Work address with zip code (list all known cuuv«my or
corporate affiliations).
For each corporate subject:
(1) Name of company and parent corporation, if appropriate.
(2) Complete address of company.
(3) Complete address of facility associated with offenses.
(4) State of incorporation of corporate subjects.
(5) Registered agent for service.
(6) A brief statement of the business, profits, and size of the
company.
CAA Compliance/Enforcement 9-34 Guidance Manual 1986
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Chapter Nine Exhibtc 9-4
-5-
Seetion IV - &iforcanent and Regulatory History;
This section should include a descripcion of all known enforcement
.activity, both state arid federal, taken against the defendants in Che
past relating to environmental matters generally. In. addition, Che
writer should discuss any previous efforts by EPA or state agencies
to remedy the problem chrough informal, administrative, or civil
means. Give only brief surmariea.
Section V - Description of the Evidence;
This section includes a chronological narrative of all relevant
and material facts constituting the alleged criminal violations.
It may be chat for several separate incidents the episodic
method may be utilized. TM^ section forma Che factual basis for
criminal charges and should be defendant oriented, i.e., should
tell what Che defendant (s) did or caused to be done whenever
possible.
Each specific fact contained in chis report shall be referenced co
an exhibit or exhibits which substantiate Che statement of fact.
Speculation will be avoided. This section will usually constitute
the major portion of che case report.
Appendix A - List of Witnesses;
This section is particularly useful to prosecutors supervising che
case, and will frequently be used in issuing subpoenas, planning a
. Grand Jury presentation, and estimating the scope of che prosecution.
For each witness, che writer should provide all available background
data (i.e., name, residence, work address, telephone numbers, etc.) and
a brief summary (one paragraph) of the matters on which testimony is
CAA Conpllance/EnforceiMnt 9-35 Guidance Manual 1986
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Chapter Nine Bxhtbtt 9-4
-6-
antic£pated. This section should Include noe only che key substantive
witnesses, but also chose who will establish che appropriace foundation-
for documentary or physical evidence (for example: photographers, chain
of custody witnesses, record custodians, etc.). Confidential tnforaants
should not be identified in this list.
Apendices B. C - List of Exhibits and Exhibits;
Copies of every substantial piece of documentary evidence in the case
should be included as an exhibit to the report and should be indexed
Co allow for easy reference in the main body of the report. Original
exhibits or documents should not be included in the case report.
Originals will normally be used as evidence in trial and should be
retained in the OCI Office until other arrangements are made with
che Justice Department prosecutor supervising che case.
6. REVIEW AND APPROVAL PROCESS; The responsible Special Agent will submit the
Criminal Case Referral in complete bat rough draft form to the Special Agent
in Charge (SAIC) in accordance with section entitled "Preparation and Sub-
miss ion" above. The SAIC will conduct a thorough review, and, after any
necessary corrections, the SAIC will approve che report for typing in the
initial final form. The Special Agent and SAIC will review che initial
final draft. If chis is approved, the SAIC will arrange for che report
to be forwarded, in a confidential manner, co the Regional attorney
assigned Co che investigation. The Regional attorney may make a copy
of the exhibics for future use and review che content of the report
for legal sufficiency, preparing any necessary reports that might
supplement Che Criainal Case Referral. (See Section 8 below.) The
Special Agent should also assure chat che report is reviewed by
CAA Compliance/Enforcement 9-36 Guidance Manual 1986
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Chaocer Nine Exhibit 9-4
-7-
"technical personnel assigned Co Che investigation for technical
sufficiency. Approval by technical personnel shall also conxnic the
Agency to support for the case throughout the judicial process. Any
corrections that are necessary will be made by the Office of Regional
Counsel. The Criminal Case Referral will then be forwarded in a con-
fidential manner to the responsible Regional Counsel for approval.
This person shall note approval by affixing his/her signature in
the appropriate space on the Signature Page. The approved report
shall then be forwarded to the appropriate Special Agent in Charge.
The Special Agent in Charge shall again review the Criminal Case
Referral. Any further changes will be discussed with the Regional
Counsel or his designee and/or the technical staff as appropriate.
When approved, the Special Agent in Charge aha IT affix his/her
signature in die appropriate space on the Signature Page. The
referral will then be forwarded to the Criminal Enforcement Divi-
sion in EPA Headquarters for review and approval. After approval
by the Assistant Administrator for Enforcement and Compliance Monitor-
ing, the referral.will be sent concurrently to the Environmental Crimes
Unit, Deparaent of Justice, and to the appropriate U.S. Attorney's
Office. Section 7 describes the ultimate distribution of the referral
package.
7. DISTRIBUTION OF THE CRIMINAL CASE REFERRAL;
a. The original report with copies of exhibits is forwarded to die U.S.
Attorney of the principal judicial district. An additional copy or
copies may be provided to other U.S. Attorneys, if jurisdiction falls
in more, than one judicial district.
CAA Compliance/Enforcement 9-37 Guidance Manual 1986
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Chapter Nine Exhibit 9-4
-8-
b. One copy with exhibics should go to ch« OQ case file.
c. One copy with exhibies should go co che Criminal Enforcenenc Divi-
sion legal office in Headquarters.
d. One copy with exhibits should go Co che Departaenc of Justice, Environ-
mencal Crimea Unit.
e. One copy without exhibits should go co che Regional Counsel.
f. One copy with exhibics should go co che Assiscanc Director, Criminal
Investigations, NEIC.
Original exhibics in EPA custody should be maintained in a secure
manner by che Special Agent/Case Agent until such Hmo as cheir
personal delivery to che court or prosecutor is arranged.
Nothing in chis section shall preclude comnunicarions between the
invescigacing officials, che U.Sr Attorneys, che Department of
Justice, and Headquarters legal staff at any tiae. ' Such contact is
encouraged, particularly prior to che initiation of Investigative
Grand Jury activities.
8. HEAL ANALYSIS PCTORT; The Regional or Headquarters attorney
assigned co the investigation may, as part of che review process,
prepare a legal analysis report which should be marked in capital
lecters 'TRIVTT.HTrT) - ATTORNEY WORK PRODUCT." This report would
address che various legal issues involved in che particular investi-
gation, including strengths and weaknesses, legal defenses, evidenti-
ary challenges, and equitable defenses. It may also include a
proposed sample indictment, a listing of the elements of the various
offenses, parallel proceedings maccers, and any other material
CAA Compllance/Enforcenent 9-38 Guidance Manual 1986
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Chapter Nine Exhibit 9-A
-9-
counsel 037 feel would be useful in the prosecution of the criminal
macter. Ic should also include environmental impact infotaation.
Distribution of this report should be made to Che Regional Counsel
or his/her designee, Criminal Enforcement Division legal staff, the
U.S. Attorney having jurisdiction, and the Department of Justice,
Environmental Clines Unit. In.addition, Che Office of Criminal
Investigations should get a copy.
Attachments (2)
cc: Thomas P. Gallagher, Director
Carroll G. Wills, Chief, Enforcement Specialist
CAA Conpltance/Enforcenent 9-39 Guidance Manual 1986
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Chapter Nine
Exhibit 9-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
OFHCE OF ENFORCEMENT AND COMPLIANCE MONITORING
OFFICIAL USE ONLY
REPORT OF INVESTIGATION
FRED C. WILLIAMS, dba
UNIVERSAL ENGINEERING
CASE * 84-XX-3-99 69U
AUGUST 1984
NATIONAL ENFORCEMENT INVESTIGATIONS CENTER
OFFICE OF CRIMINAL INVESTIGATIONS
(OFFICE ADDRESS)
CAA Compliance/Enforcement
9-40
Guidance Manual 1986
-------
Chapter Nine
Exhibit 9-4
ATTACHMENT B
(APPROPRIATE AREA OFFICE)
( LETTERHEAD )
CRIMINAL FILE NUMBER:
PROJECT NUMBER:
REPORT EXAMINED, APPROVED,
AND RECOMMENDED FOR
PROSECUTION
(data here)
SPECIAL AGENT IN CHARGE
REGIONAL COUNSEL
Larry D. Thompson
United States Attorney
Northern District of Georgia
Richard B. Russell Building, Room 1800
75 Spring Street, S.W.
Atlanta, Georgia 30303
INTRODUCTION:
This report is submitted in regard to alleged violations of the
United States Code by Richard Roe, John Doe, Mary Doe, and others namcc
as defendants or co-conspirators herein, in that between January 16,
1983, and July 1. 1983, in Fulton County, Northern Judicial District
Georgia, they did conspire to violate the environmental laws of the
United States; Further, that on July 1, 1983, they did cause the illegal
disposal of a listed hazardous waste in Macon County, Middle Judicial
District of Georgia.
CAA Coopltance/Enforceaent
9-41
Guidance Manual 1986
-------
Chapter Nine Exhibit 9-4
'} UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, O.C.2MM
'585
omci or txtouiMorr
AMOCOMPUAMa
MOMTOUJIO
MEMORANDUM
SUBJECT: Functions and General Operating Procedures for
the Criminal Enforcement Program
FROM: Courtney M. Price 1/Vj.uIj /*\
Assistant Administrator"^ V ^ _
To: Assistant Administrators
General Counsel
Inspector General
Regional Administrators
Regional Counsels
I am pleased to transmit the final operating procedures
for the criminal enforcement program. These procedures were
developed after extensive coodination with and comments from
the Regional offices and program staffs. Your assistance has
been valuable in developing procedures that will accomodate
the interests and needs of the various offices of the Agency
and enhance our ability to conduct a rigorous and effective
criminal enforcement effort. These procedures replace the
interim operating procedures which were Issued in January,
We have attempted in this guidance to recognize the
significant role that the Regional Counsels, Regional Program
Offices and the National Program Managers play in the criminal
enforcement program. Active participation by all of us is
essential to its success. I look forward to working closely
with you. 7
Specific questions concerning 'this guidance may be
directed to Randall M. Lutx, Assistant Enforcement Counsel
for Criminal Enforcement (FTS 382-4543; E-Mail Box EPA2201).
Attachment
CAA Compliance/Enforcement 9-42 Guidance Manual 1986
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10 Enforcement of Court Orders
-------
Chapter Ten
Enforcement of Court Orders
Chapter Contents
Page
1 Introduction
10-1
2 Consent Decree Tracking
10-3
3 Basic Considerations Underlying Choice of Responses
Force Majeure and De Minimis Situations
Situations Where Enforcement Is Appropriate
10-5
10-5
10-6
4 Types of Enforcement Responses
Increased Monitoring
Amendment of the Court Order
Stipulated Penalties
Motions To Enforce the Court Order
Contempt of Court Motions
10-11
10-11
10-12
10-12
10-13
10-14
CAA Coapllance/Enforceaent
10-i
Guidance Manual 1986
-------
Chapter Ten Content.a
CAA Coapllance/Rnforceaeat 10-11 Guidance Manual 1986
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Chapter Ten
1 Introduction
In Chapter Eight, we discussed civil judicial enforcement of the Clean Air
Act undertaken pursuant to Sections 113(b), 167, and 303. We noted that
the vast majority of cases are settled before trial and the settlement is
embodied usually in an order of the court called a consent decree. In
cases where the parties are not able to negotiate a settlement, the case
concludes with an order of the court often written by the prevailing
party. This chapter briefly explains how the Agency tracks compliance with
consent decrees. This chapter also discusses the variety of responses
available to remedy Instances of noncorapliance with court orders.
Because the terms of court orders obviously depend upon the nature of the
underlying violation and its remedy, Chapter Eight noted that a truly
"model" court order is something of an academic ideal. Enforcement of such
orders presents an analagous problem because of the wide variety of poten-
tial violations, the variety of circumstances in which they occur, and the
variety of responses available to remedy the violation. Therefore, this
chapter does not provide specific response formulas, but rather sets forth
basic considerations In the enforcement response decisionmaklng process.
The chapter supplements "Guidelines on Enforcement of Federal District
Court Order in Environmental Cases" (see General Policy Compendium).
CAA Coapllance/Bnforceaent 10-1 Guidance Manual 1986
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Chapter Ten Introduction
CAA Goapliance/Bnforceaeat 10-2 Guidance Manual 1986
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Chapter Ten
2 Consent Decree Tracking
The National Enforcement Investigation Center (NEIC) in Denver recently
established a consent decree tracking system that utilizes a central com-
puter and data base updated periodically by information compiled by Region-
al offices. The tracking system is described in detail in guidance issued
on December 20, 1983 (see General Policy Compendium, GM-19).
Briefly, the tracking system includes information on all consent decrees
that have been entered by either a federal or a state court to which EPA is
a party• The system does not track state consent decrees to which EPA Is
not a party. Federal facility compliance agreements, which are always
resolved out of court, are also not tracked.
NEIC maintains a repository of all consent decrees and an automated manage-
ment information system that stores summaries of each decree. EPA Regional
and Headquarters offices are linked via computer to the library.
As EPA inspectors obtain Information on progress or delay in meeting con-
sent decree obligations, the information is compiled for the Regional
Administrator. At the beginning of each quarter, the Regional Administra-
tor receives from the Headquarters Office of Enforcement and Compliance
Monitoring (OECM) a print-out that contains a list of all consent decree
milestones that ripened during the preceding quarter. The Regional Admin-
istrator then must respond to OECM within 10 working days with the follow-
ing information:
• Whether the milestone was achieved;
• Whether the milestone was not achieved;
• Whether the milestone was renegotiated; and
• What response to noncompliance the Region intends to pursue.
OECM also transmits the information to NEIC, which updates the library.
CAA Coapllance/Enforceaeat 10-3 Guidance Manual 1986
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Chapter Ten Consent Decree Tracking
CAA Covpllance/Enforceaent 10-4 Guidance Manual 1986
-------
Chapter Ten
3 Basic Considerations Underlying Choice
of Responses
A wide range of possible responses to consent decree violations Is avail-
able to EPA ranging from basically taking no action to petitioning the
court to order the defendant to show cause why he should not be held In
contempt of court* The most common mechanisms for enforcement of court
orders are stipulated penalties, bond forfeiture, and motions to the court
to enforce Its order.
Many of the same considerations underlying the decision to enforce or not
to enforce regulations are also involved In the decision to enforce or not
to enforce court orders, with two significant additional elements. First,
EPA has invested considerable resources in developing the action and justi-
fiably expects that the defendant will abide by the order and achieve time-
ly compliance. Second, EPA places a very high priority on enforcement of
court orders in order to enable the Agency to maintain its credibility with
the courts, the public, and the regulated community, and to achieve the
desired environmental objective.
Force Majeure and De Minimis Situations
Some instances of noncompliance are excused by the terms of the order. For
example, a flood that halts a facility's production operations is likely to
interrupt a compliance schedule, too. Usually, this type of situation Is
covered by a force majeure clause, which operates to excuse noncompliance
for the period directly attributable to the "act of God." The existence of
a force maj eure event does not by itself excuse noncompliance. Instead,
the defendant must follow the procedures established by the order to invoke
the relief.
Sometimes a defendant's failure to comply with the consent decree does not
fall within the limited situations contemplated by the force majeure
clause, but may be otherwise trivial, insignificant, or Inconsequential.
Prudent exercise of prosecutorial discretion may call for no enforcement
response to such de minimls situations.
CAA Coapllance/Enforceaent 10-5 Guidance Manual 1986
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Chapter Ten Basic Considerations Pnderlying Choice of Responses
Situations Where Enforcement Is Appropriate
Most cases of court order violation are appropriate for enforcement
follow-up. The appropriate response to a particular instance of noncompli-
ance depends on several interrelated factors that also affect the estab-
lishment of enforcement priorities.
The following factors, at a minimum, should be weighed in choosing which
enforcement response is appropriate In a given case:
• The gravity of the violation in terms of its effect on air quality;
• The gravity of the violation in terras of its effect on the remain-
ing obligations under the decree (e.g., the effect of a schedule
violation on subsequent increments of progress and the final com-
pliance date);
• The degree of the defendant's culpability in the violation;
• The presence or absence of mitigating factors;
• The likelihood that EPA's failure to act will influence the behav-
ior of similar defendants In similar circumstances;
• The economic benefit the defendant is realizing from continued non-
compliance; and
• The likelihood that the proposed enforcement response will accom-
plish the goal of compliance.
Environmental Impact
Both the degree and the duration of emission limitation violations are
important factors. Occasional exceedances of opacity limits may call for
increased monitoring of operation and maintenance practices, while frequent
and egregious violations may indicate that the defendant is engaged in con-
tumacious behavior. Violations in nonattainment areas are of great concern
because of the contribution of the violation to air that is unhealthful to
humans. That is not to say that violations of court orders In attainment
or unclassified areas do not warrant follow-up enforcement, but only that
human health problems are usually of greater concern. Violations that are
causing an exceedance of an increment in a PSD area or the emission of haz-
ardous air pollutants are examples of "clean air area" violations where
prompt enforcement may be clearly warranted.
CAA Co"Pllance/Bnforcc«eot~ 10^6 Guidance Manual 1986
-------
Chapter Ten Basic Considerations Underlying Choice of Responses
Schedules
When the civil action complains of a violation of emission standards, the
court order will require final compliance with the standard. In many
cases, final compliance requires the operation of air pollution control
equipment that must be procured, installed, brought on-line, calibrated,
and finally operated and maintained. Each of these steps requires time,
and the purpose of schedules is to establish increments of progress that
assure that each step toward compliance is taken in a timely, expeditious,
and enforceable fashion.
Typically, a construction schedule has a due date for each of the following
increments:
• Submit engineering plans;
• Place purchase order for control equipment;
• Commence construction of control equipment;
• Complete construction of control equipment;
• Start-up control equipment; and
• Demonstrate compliance.
Although each increment Is an important part of the schedule, timely final
compliance is the ultimate goal. When presented with evidence of a sche-
dule violation, usually the first question asked is "Does the delay affect
the next incremental date?" If the delay jeopardizes the final compliance
date, prompt enforcement action is particularly important to prevent the
schedule from becoming a fiction.
Notwithstanding the question of whether or not the final date may be Jeo-
pardized, evidence that the source did not place the purchase order for the
equipment on time usually is cause for great concern. Typically, a large
down payment is required by a vendor of air pollution control equipment
upon a purchase order by the source. If the source refuses to take
delivery, the down payment is forfeited, and the source Is liable to the
vendor for breach of contract. Given such strong economic Incentives for a
source to abide by the purchase agreement, EPA considers the placement of
the purchase order as one barometer of the source's Intention to comply
with the rest of the schedule. The purchase order is a commitment of
capital, and once the capital commitment has been made, EPA's experience
indicates that the equipment probably will be Installed and operated.
Evidence that commencement of construction has been delayed beyond the due
date should be a cause for concern. It may Indicate that a purchase order
that had been placed on time may have been subsequently cancelled. Failure
to commence construction on time may also indicate that the final compli-
ance date is in Jeopardy. In any event, when construction is not proceed-
ing on schedule, EPA should immediately Initiate an Investigation of the
reasons for the delay. It is possible that the vendor of the control
CAA Compllance/Enforceoent 10-7 Guidance Manual 1986
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Chapter Ten Basic Considerations Underlying Choice of Responses
equipment has failed to deliver on time. This situation may indicate that
the defendant inadequately polices his contracts, or it may indicate an
intention not to comply. The failure to commence construction may indicate
that since the court order was entered the defendant may be reviewing com-
pliance plans. The defendant may be planning to shut down the violating
source, or he may be planning to employ the control equipment at another
site. In any event, the failure to commence construction in a timely
fashion should be immediately addressed.
Since compliance with the applicable emission limitation is typically the
ultimate goal of any decree, timely compliance by the source with the com-
pliance demonstration requirement is of paramount importance. Purchasing,
Installing, and operating equipment is simply not acceptable if the applic-
able emission standard is not achieved.
In cases involving chemical reformulation as the means of obtaining compli-
ance (as opposed to installation of control equipment), the "increments" of
a schedule more closely resemble separate final compliance dates. For
example, a reformulation schedule may call for 25 percent of the production
lines to comply with applicable requirements by "X" date, with another 25
percent due by "Y" date, and the balance due on "Z" date.
If the date for final compliance passes and the compliance demonstration is
either not conducted or indicates a failure to achieve the standard, EPA
must survey its array of enforcement options and pursue the best course
available to obtain compliance. If the underlying violation was cause
enough to require judicial resolution, it follows that the failure to com-
ply with that resolution should be of at least equal concern.
Culpability of Defendant
This element considers whether or not the defendant is exhibiting "good
faith" in attempting to meet the court-ordered requirements. If the defen-
dant is proceeding in bad faith, a strong enforcement response is probably
appropriate even for relatively minor violations. Such a response will
communicate that the Agency is monitoring progress and intends to ensure
final compliance.
Whether or not good faith is present can be determined from a number of
circumstances. For example, a defendant who promptly notifies EPA of prob-
lems with a vendor's delivery agreement is not likely to be one who is
trying to mislead EPA into believing that the decree is being smoothly
implemented. Similarly, the defendant who requests that EPA observe the
operation of new control equipment is likely to be one who will pay atten-
tion to whether the equipment is being operated properly on a continuous
basis.
A defendant exhibiting bad faith is one who fails to place purchase orders,
cancels purchase orders, does not train its employees in the proper opera-
tion of control equipment, etc. Operation and maintenance practices are a
good barometer of a defendant's good faith because such problems are
usually easily and inexpensively remedied. For example, a defendant who
CAA Compliance/Enforcement10-8Guidance Manual 1986
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Chapter Ten Basic Considerations Underlying Choice of Responses
does not regularly clean the door Jambs on a coke oven battery (carbon
build-up on jambs causes extensive emission leaks) Is likely to be the
defendant who will not try very hard to comply with other requirements.
Finally, the defendant's history of noncorapllance can sometimes indicate
the presence of good or bad faith. The defendant who remained out of com-
pliance for years after receiving NOVs or who resisted attempts at a nego-
tiated settlement is the defendant whose excuses for decree violations are
likely to be most questionable.
Mitigating Factors
This element considers whether there are any facts and circumstances to ex-
plain the reason for noncompliance with the decree that were not provided
for in the decree. • Typically, noncompliance with the decree is excused
only if the force majeure or another specially drafted provision applies.
Occasionally, however, facts and circumstances associated with a decree
violation arise that EPA may consider in choosing an enforcement response.
Such facts and circumstances would not excuse the noncompliance, but may
cause EPA to treat the noncompliance as a lower priority than might other-
wise be called for, or may justify a modification to the court order.
Examples of such facts and circumstances are not simple to list. Indeed,
to the extent that any such facts and circumstances can be anticipated, the
decree should expressly provide for them. Realistically, however, the
parties to the decree will not anticipate everything.
For example, the sole vendor of the required control equipment may go out
of business unexpectedly. A union with a "no strike" contract may violate
the contract. An economic downturn may cause a prolonged shutdown of a
facility with the prospect of restart only a dim possibility. A technology
that had been successfully applied at one facility may simply fail to
achieve the same success at another facility notwithstanding all good faith
attempts to design, modify, and operate the equipment in a manner consis-
tent with good pollution control practices.
For the sake of emphasis, understand that such facts and circumstances do
not excuse noncompliance, but should only be considered in determining
whether the violation may be viewed as de minimis in nature.
The Deterrence Factor
Because investment in pollution control equipment is usually a "non-produc-
tive" investment (i.e., there is no income derived from the investment),
the company that does not make such investments is at least theoretically
at a competitive advantage over the company that spends money on controls.
Thus, members of each industry generally attempt to spend no more on pollu-
tion control than their competitors do. Understandably, sources can be ex-
pected to attempt to avoid any expenses that the competition avoids, and it
has been EPA's experience that competitors are rather knowledgeable about
each other's pollution control efforts and problems.
CAA Conpliance/Enforceaent 10-9 Guidance Manual 1986
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Chapter Ten Basic Considerations Underlying Choice of Responses
For these reasons, It is important to look beyond the specific violation of
the court order and to attempt to predict whether a particular response is
likely to prevent the violator's competition from getting ideas of its
own. Of course, this is a factor in determining whether to initiate a
civil judicial action in the first place, but it is perhaps even more
Important to consider at the court order enforcement stage. This is true
because a violator who believes that EPA will not enforce the court order
is likely to consider the negotiation process as just another way to delay
pollution control expenses.
Economic Benefit
Removal of the economic benefit associated with continuing noncompliance
should be a goal second only to final compliance.
One of the defendant's obligations under most court orders Is the payment
of a civil penalty. As discussed in the Civil Penalty Policy (GM-21), the
civil penalty is calculated to remove the economic benefit the defendant
derived from noncompliance and to create some deterrence to future noncom-
pliance. The penalty period is measured from the date of the first
provable violation to the date of anticipated compliance. If the defendant
delays compliance with the terms of a court order, the continuing economic
benefit renders the agreed-upon civil penalty figure as representative of
only a portion of the period of noncompliance. As the period of noncompli-
ance continues, the economic benefit increases and the benefit of noncom-
pliance becomes even more attractive to the defendant. Thus, recouping
this additional economic benefit is just as important as collecting the
original civil penalty amount. For this reason, the stipulated penalty
provisions of the order should be set at levels that would remove the
economic incentives for noncompliance.
Goal-Oriented Action
A final factor to weigh Is the likelihood that the proposed action will
achieve the goal of compliance. For example, a demand for the payment of
stipulated penalties is not likely to force compliance by the violator who
views the stipulated penalties as simply the "price of polluting." That
polluter will Just pay and continue the noncomplylng behavior. Those cases
may call for the contempt of court petition.
Conversely, a contempt of court petition is likely to be overkill in re-
sponse to a failure to submit a report in a timely fashion. In such case,
a stipulated penalty and a motion to enforce may be sufficient to ensure
timely submlttal of subsequent reports.
CAA Compliance/Enforcement10-10Guidance Manual 1986
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Chapter Ten
4 Types of Enforcement Responses
EPA responses to court order violations should be commensurate with the
seriousness of the violation as measured by the combined weight of the fac-
tors set forth in the previous section. Violations that are not cause for
great concern may be dealt with by increased monitoring or by a bilateral
revision (with court approval) to the order. Serious violations may be
grounds for collection of hefty stipulated penalties, a motion to enforce
the order, or a contempt of court petition. Whatever response is appro-
priate, it is critically important that the response be undertaken promptly
to prevent the order from becoming a fiction. The order should always
reflect the realistic expectations of the parties.
Increased Monitoring .
An appropriate response to relatively minor decree violations may be to
increase monitoring of the source. This can be accomplished by an on-site
inspection or issuing Section 114 requests for information. Although these
techniques may not be viewed as "enforcement action" in the traditional
sense of the terra, the increased visibility of the Agency that accompanies
these mild responses may serve to prompt rapid remedial work and to deter
future noncompliance.
The monitoring response may be particularly appropriate to remedy court
order violations associated with operation and maintenance requirements.
In contrast to a one-time obligation, such as a placement of a purchase
order, operation and maintenance (0/M) requirements usually entail daily
activity.
Scheduled inspections may not turn up evidence of daily operation and main-
tenance problems because defendants often take measures for scheduled
inspections that are not employed as a matter of course. An unannounced
inspection pursuant to a warrant, however, is not only likely to be repre-
sentative of actual conditions, but it also serves to deter the formation
of the opinion that 0/M compliance provisions apply only on "show" inspec-
tion days. A Section 114 letter requiring records of 0/M practices for the
past month (or quarter) may also provide an accurate picture of day-to-day
operations, as well as serving to deter future noncompliance.
CAA Conpllance/Enforceaent 10-11 Guidance Manual 1986
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Chapter Ten Types of Enforcement Responses
Amendment of Che Court Order
In some cases, EPA may agree to an amendment to a court order vhere the
source has not achieved compliance or is behind on a schedule. Sources
frequently request EPA to agree to modify orders in order to gain time or
to obtain final compliance obligations more easily or less expensively. In
the vast majority of cases, EPA strongly resists such efforts, but in rare
cases where the defendant convincingly demonstrates that It has made extra-
ordinary efforts to comply, an amendment to the order to reflect the actual
expectations of the parties may be appropriate.
Stipulated Penalties
If the court order provides for substantial stipulated penalties, the
threat that EPA will demand and collect them often Is enough incentive for
the defendant to comply. Occasionally, however, a recalcitrant defendant
must be prodded into compliance by more than simply the threat of penalty.
The procedure for the assessment, demand, and collection of stipulated pen-
alties is usually provided for In the court order. Typically, the order
provides that the government will issue a demand letter (certified mall,
return receipt requested) to the defendant. The letter instructs the de-
fendant to make a check payable to the "United States Treasurer" for the
full amount. The letter also instructs that the check Is to be delivered
to the United States Attorney for the district in which the decree was en-
tered or to the Department of Justice, Land and Natural Resources Division,
in Washington, D.C. The letter should recite the applicable provision
authorizing the demand, the applicable provision that has been violated,
and the time period that the demand covers.
Stipulated penalties should not be demanded for all violations that are de-
tected. Indeed, most orders will not provide for stipulated penalties for
all violations. But, even where a stipulated penalty might be applicable,
the issuance of a demand letter Is not an automatic response. For example,
some court orders provide that any stipulated penalties accrued for delay
in scheduled increments of progress are to be forgiven if final compliance
is achieved on schedule. Thus, If it appears that slippage in the schedule
will not jeopardize timely final compliance, and there Is no other apparent
reason to suspect that the delay Is indicative of a pattern of noncompli-
ance, then the demand for stipulated penalties may not be fruitful. Like-
wise, collection of stipulated penalties may not be appropriate after final
compliance Is achieved where only a small amount of money, reflecting minor
deviations from the schedule, is involved.
CAA Covpllance/Bnforceaent 10-12 Guidance Manual 1986
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Chapter Ten Types of Enforcement Responses
Motions To Enforce the Consent Decree
When noncompliance with Che court order is of a serious nature and in-
creased monitoring or the demand for stipulated penalties is not sufficient
to force compliance, the Agency may wish to Involve the court again. In a
Motion To Enforce the Judgment, the government is requesting that the court
ensure that its order is obeyed* The motion asserts that the defendant has
failed to comply with the provisions relating to the compliance schedule or
operation and maintenance requirements, the payment of stipulated penal-
ties, or other requirements, and that no provision of the court order
operates to excuse noncompliance. The motion may also request that the
court compel the payment of accrued and anticipated stipulated penalties In
cases where a demand letter has failed to elicit payment.
The government's procedures for a motion to enforce the court order are
similar to the underlying enforcement action in the sense that the Regional
Office prepares a litigation report and the same review procedures at Head-
quarters and at the Department of Justice are followed. In addition, the
standard of proof for a motion to enforce the court order is the same as
for the underlying complaint (i.e., the government must prove each element
of the allegation "by a preponderance of the evidence").
The defendant's answer to the motion la required within 20 days. The an-
swer may admit or deny the allegations, or admit the allegation with some
explanation or defense. For example, the defendant may admit the viola-
tion, but argue that the force majeure clause excuses the noncompliance.
The defendant may also attempt to invoke Rule 60 of the Federal Rules of
Civil Procedure that provides for relief from judgments. Rule 60 provides
that a court may relieve a party from a final judgment, order, or proceed-
ing for any of the following reasons:
• Clerical mistakes;
« Mistake, inadvertence, surprise, or excusable neglect;
• Newly discovered evidence;
• Fraud, misrepresentation, or other misconduct of an adverse party;
• The Judgment is void;
• The judgment has been satisfied, released, discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment should have
prospective application; and
• Any other reason justifying relief from the operation of the
judgment.
CAA Compllance/Bnforceaent 10-13 Guidance Manual 1986
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Chapter Ten Types of Enforcement Responses
Contempt of Court Motions
For the most serious violations of a consent decree, the government may
file a motion with the court aimed at securing a ruling that the defen-
dant's noncorapliance is a contempt of the court. A contempt motion, tech-
nically styled as a Motion To Show Cause Why Defendant Should Not Be Held
in Contempt, requests the court to exercise its inherent authority to
ensure that its orders are obeyed. A contempt motion is usually
accompanied by or is a part of a Motion To Enforce the Decree.
The chief benefit of a contempt action is to permit the government to ob-
tain relief beyond the four corners of the court order, e.g., additional
Injunctive relief or penalties for violations not covered by stipulated
penalties.
The defendant must respond to a contempt motion within 20 days. The defen-
dant can be anticipated to file a motion under Rule 60 of the Federal Rules
of Civil Procedure for relief from the consent decree. The defendant may
also raise equitable defenses such as "estoppel," "laches," and "unclean
hands" in an attempt to place responsibility for noncompllance on the
government. For example, one defendant argued (unsuccessfully) that a
year-plus delay in installing controls was due to EPA's delay in responding
to applications for alternative emission control plans, even though the de-
cree expressly placed the risk associated with delay squarely on the
defendant's shoulders.
Other defenses that might be anticipated are claims of financial inability,
failure of EPA to respond to reasonable requests for modification of the
decree, failure of control techniques to accomplish required emission re-
ductions despite all good faith efforts to operate the equipment, EPA
acquiescence in a control technique that subsequently failed, Interference
with compliance efforts by third parties (such as a labor union or equip-
ment vendor), and force majeure. EPA should oppose any such arguments.
Various forms of relief are available to EPA if the court finds the defen-
dant in contempt. The court is likely to order a new schedule based on EPA
estimates of expeditious compliance. The court will also order the payment
of stipulated penalties already accrued, periodic payments of stipulated
penalties (sometimes into an escrow account) prospectlvely until compliance
is achieved, and contempt penalties in addition to the stipulated
penalties.
The court may also find, either upon motion by the government under 18
U.S.C. §401(3) or sua sponte (i.e., on Its own without motion by EPA), that
the defendant's noncompliance was a willful and intentional ignoring of the
court's order amounting to criminal contempt. In such a case, the court
may order a jail sentence and the payment of monetary penalties aimed at
punishing the defendant. The defendant's behavior must be willful and
intentional "beyond a reasonable doubt" to constitute criminal behavior.
CAA Coapllance/Bnforceaent10-14Guidance Manual 1555
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Chapter Ten Types of Enforceaent Responses
When drafting the motion for contempt, it is critical that it clearly
states whether it is for civil or criminal contempt. If the motion is not
carefully crafted, the judge may treat a civil motion as a criminal motion
thereby substantially Increasing the government's burden of proof. The
government should request a hearing on the motion and the allegations
should be supported with affidavits and other appropriate documentation.
In addition, the government should submit an order for the judge to sign
and a memorandum of law in support of the ruling. Those steps should help
to ensure that the Judge is properly informed of EPA's position.
CAA Cowpllance/Enforceaeat 10-15 Guidance Manual 1986
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Chapter Ten Types of Enforceaent Responses
CAA CoBpliance/Enforceaent 10-16 Guidance Manual 1986
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11 Special Considerations
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Chapter Eleven
Miscellaneous Considerations
Chapter Contents _ Pflge
1 Introduction
Additional Provisions of the Clean Air Act 11-3
Cooperative Activities and Uniform Laws (Section 102) 11-3
Research, Investigation, Training, and Other
Activities (Section 103) 11-3
Grants for Support of Air Pollution Planning
and Control Programs (Section 105) 11-4
International Air Pollution (Section 115) 11-4
Retention of State Authority (Section 116) 11-5
Control of Pollution From Federal Facilities (Section 118) 11-5
Listing of Certain Unregulated Pollutants (Section 122) 11-5
Stack Heights and Dispersion Techniques (Section 123) 11-6
Administration (Section 301) 11-7
Citizen Suits (Section 304) 11-7
Federal Procurement (Section 306) 11-8
General Provisions Relating to Administrative
Proceedings and Judicial Review (Section 307) 11-9
The Freedom of Information Act 11-13
Denials of FOIA Requests 11-14
Exemptions 11-14
Protection of Confidential Business Information 11-17
CAA Compliance/Enforcement 11-i Guidance Manual 1986
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Chapter Eleven Contents
CAA Coapllance/Enforcenent 11-ii Guidance Manual 1986
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Chapter Eleven
1 Introduction
In order to conveniently describe the main features of the Clean Air Act,
we deemed certain sections and programs to be central to the regulatory
scheme and addressed them in Chapter One. That chapter, therefore, did not
address every section of the Act relating to stationary sources. This
chapter is intended to address the remaining major components of the Act.
The provisions discussed in this chapter range from very limited applica-
bility (e.g., federal facilities compliance) to rather broad applicability
(e.g., the Freedom of Information Act).
CAA Compliance/Enforcement 11-1 Guidance Manual 1986
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Chapter Eleven Introduction
CAA Compliance/Enforcement n-2 Guidance Manual 1986
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Chapter Eleven
2 Additional Provisions of the Clean Air Act
Cooperative Activities and Uniform Laws (Section 102)
This section directs the Administrator to encourage cooperative activities
among governments in the federal system to prevent and control, as well as
to encourage the enactment of improved and uniform laws relating to the
prevention and control of air pollution. Uniform laws prevent the creation
of so-called "pollution havens" where industrial sources of air pollution
might locate to avoid some or all of the costs of air pollution control
required in another state. The section recognizes, however, the sometimes
impracticability of enacting uniform laws "in the light of varying
conditions and needs" associated with particular jurisdictions. The
Administrator is also directed by this section, as well as several other
sections, to encourage cooperative activities within the various federal
agencies.
One interesting feature of Section 102 is the authorization to two or more
states to enter into agreements or compacts providing for cooperative
effort, mutual assistance, and the establishment of agencies to make effec-
tive any such compacts with congressional approval. No agreement may
require participation of a state that is not included, in whole or in part,
within the same AQCR.
Research, Investigation, Training, and Other Activities (Section 103)
This section establishes a national research and development (R/D) program
for the prevention and control of air pollution. The R/D program consists
of, among other things, training, surveys, experiments, studies, investiga-
tions, demonstrations, financial assistance, and the establishment of tech-
nical advisory committees. To promote the R/D program, the Administrator
is authorized to collect and publish the results of research; to contract
with public or private agencies, institutions, organizations, and indivi-
duals to conduct research; to establish and maintain research fellowships;
to collect and disseminate basic scientific data; and to develop effective
and practical processes, methods, and prototype devices for air pollution
control.
CAA Coapllance/Enforcement 11-3 Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Mr Act
The research program is aimed at understanding the "harmful effects on the
health or welfare of persons by the various known air pollutants." [Sec-
tion 103(c)] Section 103(f) establishes a $15 million appropriation to
conduct accelerated research giving "special emphasis on the short-terra and
long-term effects of air pollutants on public health and welfare." This
program is aimed at improving knowledge of the contribution of air pollu-
tants to the occurrence of adverse health effects (e.g., behavioral,
physiological, toxicological, and biochemical effects).
Section 103(e) authorizes the Administrator to call a conference regarding
an air pollution problem "of substantial significance" that is likely to
cause or contribute to air pollution subject to abatement under Section 115
(relating to international air pollution). This conference procedure is a
vestige of the 1963 Clean Air Act. Finally, the section also provides for
constructing, staffing, and equipping facilities to carry out functions
under the Act.
Grants for Support of Air Pollution Planning and Control Programs (Section
This section authorizes the Administrator to make grants to air pollution
control agencies [defined in Section 302(b)] for the purpose of planning,
developing, establishing, or improving programs for the prevention and
control of air pollution or implementation of national primary and secon-
dary ambient air quality standards. The program is subject to several
conditions and limitations regarding both eligibility and amounts.
International Air Pollution (Section 115)
One interesting feature of the Act is aimed at protecting foreign countries
from endangerment of public health. In the event that (1) the Administra-
tor has reason to believe (based upon information presented by a duly con-
stituted international agency) or (2) the Secretary of State alleges that
air pollutants emitted in the United States may reasonably be anticipated
to endanger public health or welfare in a foreign country, the Administra-
tor must notify the governor of the state from which the emissions
originate.
If the Administrator so notifies a governor, the notice is deemed to be a
finding that the SIP is inadequate and in need of revision. [See Section
110(a)(2)(H).] The state then must submit for EPA approval a revised SIP
in accordance with the procedures established by Sections 110 and 307(d).
Any action under Section 115 by EPA is preconditioned upon a finding by the
Administrator that the foreign country provides essentially reciprocal
procedures to the United States.
CAA Co«pHance/Enforce«ent FI^AGuidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
Retention of State Authority (Section 116)
This section expressly implements the finding of Congress that states have
the primary responsibility to prevent and control air pollution at its
source. [See Section 101(a)(3).] Stated another way, Section 116 severely
limits the federal government's authority to preempt state authority.
Section 116 provides, with certain exceptions, that each state has the
right to adopt or enforce:
• Any standard or limitation respecting emissions; or
• Any requirement respecting control or abatement of air pollution.
States, however, may not adopt or enforce standards less stringent than the
applicable NSPS or NESHAP.
Control of Pollution From Federal Facilities (Section 118)
This section, along with Executive Order 12088 (October 13, 1978),
essentially requires that each department, agency, and instrumentality of
the federal government comply with the applicable standards "in the same
manner, and to the same extent as any non-governmental entity." The
President may exempt any emission source (except NSPS sources) determined
to be "in the paramount interest of the United States." However, NESHAP
sources may only be exempted in accordance with Section 112(c). In
addition, classes of sources that "are uniquely military in nature" and are
owned or operated by the armed forces may be exempted by regulation.
Listing of Certain Unregulated Pollutants (Section 122)
This section requires the Administrator to review all available relevant
information and determine whether or not emissions of certain substances
into the ambient air will cause or contribute to air pollution that may
reasonably be anticipated to endanger public health. The statute lists
radioactive pollutants, cadmium, arsenic, and polycyclic organic matter as
the first priorities. If the Administrator makes an affirmative
determination with respect to any of the substances, the substance must be
listed as a criteria pollutant under Section 108, a hazardous air pollutant
under Section 112, or new sources of the substance must be listed for
rulemaking as a new source performance standard under Section 111.
CAA Compliance/Enforcement 11-5 Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
In New York v. Gorsuch, 554 F. Supp. 1060 (S.D.N.Y. 1983), the court
ordered EPA to propose NESHAPs for arsenic. Also, In Sierra Club v.
Gorsuch. 551 F. Supp. 785 (N.D.Cal. 1982), the court ordered EPA to propose
NESHAPs for radlonuclldes.
Stack Heights and Dispersion Techniques (Section 123)
Depending upon terrain and atmospheric conditions, the height of a smoke-
stack may affect the dispersion of the emitted pollutant. Tall stack
dispersion translates, in some cases, into lower ambient air concentrations
in the vicinity of the source because the tall stack emits the pollutant
high into the atmosphere where it is borne away by winds. Other dispersion
techniques, such as venting the source during periods of high winds or
other favorable weather conditions, may achieve similar results.
As discussed earlier in connection with Section 110, the basic idea behind
SIPs is to establish a system of emission limitations applicable to sources
within the state at such levels that will achieve and maintain the NAAQS in
each AQCR in the state. Theoretically, an AQCR could enjoy "attainment"
even if it contained innumerable uncontrolled emission sources so long as
the emissions were released high enough in the atmosphere to be carried
away by prevailing winds. Thus, a state might be tempted to permit tall
stacks and other dispersion techniques to allow sources in the state to
avoid the cost of pollution controls while concurrently protecting air
quality within the AQCR. This section limits the ability of any state to
take into account stack heights and dispersion techniques in establishing
SIP emission limitations.
Note, however, that a company may build a tall stack or continue to operate
a source with a tall stack. The state may not take into account the
dispersion effects of the tall stack in establishing its SIP emission
limitation.
In other words, the state must treat the source as though it has a dif-
ferent stack. The state may account for stack dispersion based on so much
of the height that equals "good engineering practice." That term is
defined in the section to mean "the height necessary to insure that
emissions from the stack do not result in excessive concentrations of any
air pollutant in the immediate vicinity of the source as a result of
atmospheric downwash, eddies, and wakes which may be created by the source
itself, nearby structures or nearby terrain obstacles."
A detailed discussion of the tall stack regulations and their historical
background is contained in the opinion of the U.S. Court of Appeals for the
District of Columbia Circuit in Sierra Club, et al. v. EPA, 719 F. 2d 436
(D.C. Cir. 1983).
Rules implementing Section 123 appear in 40 C.F.R. Part 51, having been
published at 50 Fed. Reg. 27892 on July 8, 1985.
CAA Compliance/Enforcement 11-6 Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
Administration (Section 301)
This section provides broad authorization to prescribe regulations to carry
out the Clean Air Act. Section 301 also authorizes delegation of the
Administrator's authority to EPA officers and employees, except for the
making of regulations. Section 301(a)(2) directs the Administrator to
promulgate "general applicable procedures and policies for regional offi-
cers and employees to carry out delegations."
EPA personnel may be detailed to an air pollution control agency upon
request by such an agency. Section 302(b) defines "air pollution control
agency" as any of the following agencies:
• A single, duly designated official state agency;
• An agency established by two or more states and "having substantial
powers or duties pertaining to the prevention and control of air
pollution";
• A city, county, or other local government health agency or agency
charged with air pollution prevention, control, and enforcement; or
• An agency of two or more municipalities located in the same state
or in different states "having substantial powers or duties
pertaining to the prevention or control of air pollution."
Citizen Suits (Section 304)
In the 1970 Amendments, Congress authorized federal district courts to
entertain certain civil actions filed by "any person * * * on his
own behalf." Such "citizen suits" are periodically filed by individual
citizens, states, companies, or more commonly, by environmental groups such
as the Natural Resources Defense Council, the Sierra Club, and the
Environmental Defense Fund. [See the definition of person under Section
302(e).]
Section 304(a) permits citizens suits:
• Against any person (including the United States, and any state or
local governmental agency to the extent permitted by the Eleventh
Amendment) who is alleged to be In violation of an emission
standard or limitation or, in violation of an order issued by the
Administrator or state with respect to such a standard or
limitation;
CAA Compliance/Enforcement 11-7 Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
• Against the Administrator where the citizen alleges that the Admin-
istrator has failed to perform any act or duty that is not discre-
tionary; and
• Against any person who proposes to construct or constructs any new
or modified major emitting facility without a permit required under
Part C or Part D or who is alleged to be in violation of any
condition of such permit.
Section 304(b) establishes certain preconditions to initiating a citizen
suit. If the suit is against a person alleged to be violating an emission
standard or an order, the citizen must first give notice of the violation
to the Administrator, the state, and the violator, and then wait until 60
days has expired before commencing the suit. If the suit is against the
Administrator for failure to perform a nondiscretionary duty, the citizen
must notify the Administrator 60 days before commencing the suit. The 60-
day rule does not operate in cases where a NESHAPs violation or a violation
of an Immediate compliance order under Section 113(a) is alleged.
No action may be brought against a person alleged to be violating an
emission standard or order if the Administrator or state "has commenced and
is diligently prosecuting a civil action" to require compliance. In such
circumstances, however, any person may intervene as a matter of right if
the action is in federal court. [Section 30A(b)(l)(B).]
Jurisdiction. Venue, and Remedies
The United States district courts have jurisdiction over citizen suits.
The courts may entertain the action without regard to the citizenship of
the parties or the amount in controversy. Citizen suits must be filed in
the federal district court for the district in which the violation has
occurred if the suit relates to a violation of an emission standard or
limitation or order pertaining to such standard or limitation. The venue
for an action alleging the failure to perform a nondiscretionary duty is
governed by 28 U.S.C. § 1391(e). Courts are authorized to order
compliance, to order the Administrator to perform the nondiscretionary
duty, to award the costs of litigation to any party, and to require the
filing of bonds or equivalent security if a temporary restraining order or
preliminary injunction Is sought.
Federal Procurement (Section 306)~
Section 306 authorizes a potentially powerful enforcement tool.
Traditionally, "enforcement" is usually thought of as a process involving
compliance orders, compliance schedules contained in injunctions, and other
official documents, judicial or administrative, that require compliance
directly. Section 306, on the other hand, takes an approach to obtaining
compliance that is not within the traditional approach. The Section 306
approach may be viewed as a "market" approach.
CAA Compliance/Enforcement 11-8 Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
Section 306, commonly referred to as "contractor listing," prohibits any
federal agency from entering into any nonexerapt contract (or making any
nonexempt grant or loan) with any person who is convicted of any criminal
offense under Section 113(c)(l). This means that the government cannot
procure goods, materials, and services where the performance of the
contract occurs at the facility at which the violation that gave rise to
the conviction occurred. The prohibition continues until the Administrator
certifies that the condition giving rise to the conviction has been
corrected.
For criminal convictions under Section 113(c)(l), the "listing" that
prohibits federal procurement is mandatory. Section 306(c), however,
authorizes the President to order regulations governing discretionary
listing in other types of circumstances in order to implement the purposes
and policies of the Act. Consequently, the President issued Executive
Order 11,738 (September 12, 1973) empowering EPA to promulgate regulations
that expand the Administrator's authority to list violating facilities at
the Administrator's discretion. On September 5, 1985, EPA promulgated
revisions to 40 C.F.R. Part 15 that established procedures for listing
facilities at which there is continuing and recurring noncompliance with
clean air standards, and which:
• Have violated an immediate compliance order under Section 113(a);
• Have violated a delayed compliance order under Section 113(d);
• Have violated an order issued under Section 167 (relating to PSD);
• Are the subject of a civil action initiated under Section 113(b);
• Have been convicted of a criminal offense relating to pollution
control in a state or local court; or
• Have been convicted of a criminal offense under Section 113(c)(2).
General Provisions Relating to Administrative Proceedings and Judicial
Review (Section 307)
This section covers a broad range of rulemaking requirements, judicial
review provisions, and other "housekeeping" provisions. Subsection (a)
provides subpoena powers to the Agency for the purpose of making a
determination of whether or not a national or regional energy emergency
exists under Section 110(f). This section provides the exclusive subpoena
power under the Act. The subpoena power gives EPA the right to require the
attendance and testimony of witnesses and the production of relevant
papers, books, and documents. In cases of contumacy or refusal to obey a
subpoena, EPA may obtain an order of the U.S. district court (for any
district in which the person is found or resides) compelling attendance or
the production of papers, books, and documents. Failure to comply with the
court's order may be punished by contempt of court.
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Chapter Eleven Additional Provisions of the Clean Air Act
Subsection (h) establishes the appropriate venues and limitations on
judicial actions challenging various actions of the Agency. Certain rules
and other "final" Agency actions are reviewed in a United States Court of
Appeals. The following are reviewed exclusively in the United States Court
of Appeals for the District of Columbia Circuit:
• Promulgation of any national primary or secondary ambient air qual-
ity standard;
• Any NESHAP emission standard or requirement;
• Any NSPS standard of performance or requirement;
• Any rule issued under Section 113 that is nationally applicable;
• Any rule issued under Section 119 that is nationally applicable;
• Any rule issued under Section 120 that is nationally applicable;
and
• Any other nationally applicable regulation promulgated or final
action taken by the Administrator under the Clean Air Act.
Note that the factor common to all of the items in the above list is the
national applicability of the rule or action.
The following rules or actions are reviewable exclusively in the United
States Court of Appeals for the appropriate circuit:
• Any approval or promulgation of a SIP;
• Any approval or promulgation of a plan under Section lll(d);
• Any NSPS innovative technology waiver;
• Any waiver or exemption under Section 112(c);
• Any delayed compliance order under Section 113(d);
• Any nonferrous smelter order;
• Any order to pay a noncorapllance penalty under Section 120; and
• Any other final action of the Administrator under the Act
(including any denial or disapproval by the Administrator under
Title I) that is locally or regionally applicable.
Note that the factor common to each rule or action in the above list is its
local or regional applicability.
CAA Compliance/Enforcement H-io Guidance Manual 1986
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Chapter Eleven Additional Provisions of the Clean Air Act
Time for Challenge
The appropriate Court of Appeals may only entertain a petition filed within
60 days of publication of the rule or action in the Federal Register. The
sole exception to the "60th-day rule" is when the grounds for challenge
arose solely after the 60th day. Such challenge must be filed within 60
days after such grounds arise.
It is Important to note that any action that may have been challenged
within the 60-day period but was not filed within that time shall not be
subject to judicial review in civil or criminal enforcement proceedings
initiated pursuant to Sections 113(b) and 113(c).No other provision of
the Clean Air Act may authorize Judicial review of any regulation or
order. [Section 307(e).]
Section 307(d) governs the bulk of EPA rulemaking under the Clean Air Act.
Rules not governed by Section 307(d) must be promulgated in accordance with
the Administrative Procedures Act, 5 USC §553, et seq., or other
specifically applicable Clean Air Act provisions. [See, e.g., Section
I13(d) for procedures to promulgate DCOs.]
Section 307(d) governs the following rules:
• Promulgation or revision of any NAAQS;
• Federal promulgation of SIPs under Section 110(c) where the state
submittal was deficient;
• Promulgation or revision of any NSPS;
• Promulgation or revision of any NESHAP;
• Promulgation or revision of rules applicable to Section 113(d)(5)
coal conversions;
• Promulgation or revision of regulations pertaining to nonferrous
smelters;
• Promulgation or revision of regulations under Subtitle B of Title
I;
• Promulgation or revision of PSD and visibility protection
regulations;
• Promulgation of noncorapllance penalty regulations;
• Actions under Section 126 (Interstate pollution abatement); and
• "Such other actions as the Administrator may determine."
The provisions of the Administrative Procedures Act (APA) at Sections 553
through 557 do not apply to any rulemaking governed by Section 307(d),
except as expressly provided by Section 307(d).
CAA Compliance/Enforcement 11-11 Guidance Manual 1986
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Chapter Eleven Additional PrQVtalQRi Q| Ihi Glean Air Act
When Section 307(d) applies, the Agency first publishes a notice of pro-
posed rulemaking in the Federal Register, which includes a statement of Its
basis and purpose and specifies the public comment time period, as well as
specifying the locatlon(s), number, and public inspection time(s) of the
docket. The rule can be based only on information that has been placed in
the public docket. The public docket must contain all written and
documentary information on the proposed rule received from any person
during the comment period and a transcript of the public hearing if one is
held. In addition, any documents that become available after the proposed
rule has been published that are of central relevance to the rulemaking
must be placed in the docket as soon as possible. The promulgated rule is
accompanied by a statement of basis and purpose and an explanation of the
reasons for any major changes in the promulgated rule from the proposed
rule. Finally, the rule must 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.
The record for judicial review consists exclusively of the materials des-
cribed in the paragraph immediately preceding. [Section 307(d)(7)(A).]
(The public docket must also contain drafts of the proposed rule and drafts
of the final rule, and accompanying documents, transmitted to the Office of
Management and Budget for Interagency review, and any written comments
received thereon. The reviewing court, however, does not consider these
documents and comments as part of the record.) Only an objection to a rule
or procedure that was raised with reasonable specificity during the public
comment period may be raised during judicial review. [Section
307(d)(7)(B).]
Sections 307(d)(9)(A) through 307(d)(9)(D) provide that a reviewing court
may reverse any action taken under Section 307(d) found to be:
• Arbitrary, capricious, an abuse of discretion, or otherwise not In
accordance with law;
• Contrary to constitutional right, power, privilege, or Immunity;
• In excess of statutory Jurisdiction, authority, or limitations, or
short of statutory right; or
• Without observance of procedure required by law (subject to some
conditions).
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Chapter Eleven
3 The Freedom of Information Act
The Freedom of Information Act (POIA), 5 U.S.C. Section 552, Is not a part
of the Clean Air Act, but personnel Involved In compliance and enforcement
activities occasionally respond to FOIA requests. Essentially, FOIA pro-
vides for public access to government documents subject to some limita-
tions. EPA policy states that the Agency "will make the fullest possible
disclosure of records to the public, consistent with the rights of individ-
uals to privacy, the rights of persons in business information entitled to
confidential treatment, and the need for EPA to promote frank Internal
policy deliberations and to pursue its official activities without undue
disruption." [40 C.F.R. §2.101(a).]
The regulations Implementing the Freedom of Information Act at EPA are cod-
ified at 40 C.F.R. Part 2. Actually, these regulations govern any request
for Information whether styled as an FOIA request or otherwise. [40
C.F.R. §2.104.] The Freedom of Information Act Manual - 1550 provides
guidance on policy and procedures for Implementing EPA's Freedom of
Information Act regulations.
Each Regional Office and Headquarters has a Freedom of Information Officer
to whom public requests for information must be sent and who monitors pro-
cessing of the request. [The addresses are listed at 40 C.F.R. §2.106.]
Should a request for information come to you Instead, you must promptly
forward It to the appropriate officer. Requests must be in writing and
"reasonably describe" the records sought in a way that permits EPA to Iden-
tify and locate them. [40 C.F.R. §2.108.] If the description is not suf-
ficient, EPA must notify the requestor that the request will not be further
processed until additional information is provided. [40 C.F.R. §2.109.]
The Freedom of Information Officer notifies EPA offices believed to be res-
ponsible for maintaining the records that the request has been received.
Assuming the request is sufficient to permit identification and location of
the records, each office must promptly locate the records, or determine
that they do not exist, or that they are located in another EPA office or
another agency. If the records are "business confidential," the office
must comply with Subpart B of 40 C.F.R. Part 2 (see below). The respon-
sible office must also determine whether records are exempt from disclosure
and why.
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Chapter Eleven
The Freedom of Information Act
A written Initial determination must be sent to the requestor not later
than the 10th working day after the date of receipt of the request in the
office of the Freedom of Information Officer. The determination must state
which of the requested records will, and which will not, be released, and
the reason for any denial. (40 C.F.R. §2.112.] Section 2.ll2(e) permits
extensions of time in certain limited circumstances.
Denials of FOIA Requests
EPA may deny an FOIA request only for any of the following reasons:
• A statute, regulation under Part 2, or a court order prohibits dis-
closure;
• The record is exempt from mandatory disclosure under 5 U.S.C.
Section 552(b), and EPA has decided that the public interest would
not be served by disclosure; or
• Initial denial is requested because a third party must be consulted
in connection with a "business confidential" claim.
The initial determination must list which records are being withheld and
the basis for withholding them. However, if the acknowledgment of the
existence or nonexistence of records would, in and of itself, reveal confi-
dential business information, the initial determination should state that
the request is denied "because either the records do not exist or they are
exempt from mandatory disclosure * * *." [40 C.F.R. §2.113(d).] If the
initial determination denies any part of the request, the determination
must state that the requestor may appeal the denial by written appeal to
the Agency FOI officer within 30 days of receipt of the determination. [40
C.F.R. §2.113(f).]
The Office of General Counsel decides appeals. The final determination
must be made in writing within 20 working days. If the appeal is denied,
it must state which exemptions in 5 U.S.C. Section 552(b) apply and the
reasons for the denial of the appeal. The denial must also state that
judicial review of the determination may be obtained in the U.S. district
court in which the complainant resides, or in which the Agency records are
situated, or in the District of Columbia. [40 C.F.R. §2.116.]
Exemptions
The Freedom of Information Act provides for nine categories of exemptions
from mandatory disclosure. If the record does not fall into one of the
nine categories listed below, the record must be disclosed. Even if the
record does fall into one of the categories, it must still be disclosed if
no important purpose would be served by withholding the documents. Those
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Chapter Eleven The Freedom of Information Act
categories of exemptions for which EPA will not disclose records unless
ordered to do so by a federal court or In exceptional circumstances are
noted with an asterisk. [j>ee 40 C.F.R. §§2.118, 2.119.)
• Specifically authorized under criteria established by an Executive
Order to be kept secret in the interest of national defense or
foreign policy and are in fact properly classified pursuant to such
Executive Order.*
• Related solely to the internal personnel rules and practices of an
agency.
• Specifically exempted from disclosure by statute if the statute
requires the matters be withheld in such a manner as to leave no
discretion on the issue, or establishes particular criteria f-or
withholding, or refers to particular types of matters to be
withheld.*
• Trade secrets and commercial or financial information obtained from
a person that is privileged or confidential.*
• Interagency or intra-agency memorandums or letters that would not
be available by law to a party other than an agency in litigation
with the agency.
• Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy.*
• Investigatory records compiled for law enforcement purposes meeting
certain criteria.
• Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an Agency res-
ponsible for the regulation or supervision of financial
institutions.*
• Geological and geophysical information and data, including maps,
concerning wells.*
EPA charges requestors for costs associated with searching and reproducing
records. 40 C.F.R. §2.120 sets forth the fees, payment schedules, and
waivers of fees.
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Chapter Eleven The Freedom of Information Act
CAA Compliance/Enforcement U^lZ Guidance Manual 1986
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Chapter Eleven
4 Protection of Confidential Business
Information
In various circumstances, EPA employees handle information from businesses
that includes information falling within "the concept of trade secrecy and
other related legal concepts which give (or may give) a business the right
to preserve the confidentiality of business information and to limit its
use or disclosure by others in order that the business may obtain or retain
business advantages it derives from its rights in the information." [40
C.F.R. §2.201(e).] Proper protection of confidential business information
(CBI) is extremely important; in fact Congress enacted the following
criminal provision more than 20 years before the founding of EPA:
Whoever, being an officer or employee of the United States or
of any department or agency thereof, publishes, divulges,
discloses, or makes known in any manner or to any extent not
authorized by law any information coming to him in the course
of his employment or official duties or by reason of any
examination or investigation made by, or return, report or
record made to or filed with, such department or agency or
officer or employee thereof, which information concerns or
relates to the trade secrets, processes, operations, style of
work, or apparatus, or to the identity, confidential
statistical data, amount or source of any income, profits,
losses, or expenditures of any person, firm, partnership,
corporation, or association; or permits any Income return or
copy thereof or any book containing any abstract or
particulars thereof to be seen or examined by any person
except as provided by law; shall be fined not more than
$1,000, or imprisoned not more than one year, or both; and
shall be removed from office or employment. [18 U.S.C.
§1905.]
Emission data is not entitled to confidential treatment. Emission data is
defined for purposes of the confidentiality regulations at 40 C.F.R.
§2.301.
EPA regulations at 40 C.F.R. Part 2, Subpart B, specifically govern the
handling of CBI under all EPA statutes. Regulations at 40 C.F.R. §2.301
apply to CBI under the Clean Air Act. The basic rules of Subpart B apply
except to the extent modified or supplanted by Section 2.301. [40 C.F.R.
§2.202(c).]
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Chapter Eleven Protection of Confidential Business Information
Whenever EPA requests or demands Information from a company that Is likely
to be considered by the business to he CBI, such request, demand, or form
must Include a notice stating that the company may assert a claim for
confidentiality and that such information will be disclosed by EPA only in
accordance with Part 2, Subpart B. The notice must also state that If the
company does not make a CBI claim, EPA may furnish the information to the
public without notice. [40 C.F.R. §2.203.)
A company must clearly assert its CBI claim at the time It submits the
information. The company must attach a cover sheet, a stamped or typed
legend or other notice employing such language as "trade secret,"
"proprietary," or "company confidential." If the company fails'to assert
the CBI claim in a timely fashion, and if the submission of the information
occurred after October 1, 1976 in response to a request, demand, or form
containing the Section 2.203 notice, then EPA cannot ensure protection of
the information. [Section 2.203(c).] EPA does make "such efforts as are
administratively practicable to associate the late claim with copies of the
previously submitted information in EPA files." [40 C.F.R. §2.204
(c)(l).] However, if a CBI claim was not timely filed, the information
already may have been disclosed to the public. In addition, it may not be
administratively practicable for EPA to protect the information if It has
been dispersed widely throughout the Agency. [40 O.F.R. §2.203(c).J
Initial Action by EPA
Compliance and enforcement personnel are required to take certain initial
actions to determine whether information is entitled to CBI protection.
EPA offices must make an initial determination whenever information is
requested under the Freedom of Information Act. In addition, EPA may wish
to make a CBI determination even though no request for release has been
made, or because it is efficient to do so at an early time in anticipation
of a request for release of information. [40 C.F.R. §2.204(a).]
The first step in determining whether information is CBI requires EPA to
determine whether there exists a previous CBI determination by EPA or a
federal court. If such determination holds the information to be CBI, the
information must be held confidential by EPA.
If a previous determination has not been made, EPA must identify any
business found to have asserted a CBI claim with respect to the informa-
tion. If the information appears to be CBI type information that might be
expected to be claimed CBI if the company knew that EPA might disclose it,
EPA must contact a responsible official to learn whether the company
asserts a CBI claim. As noted, such contact is not required If the
company has waived or withdrawn a CBI claim. [40 C.F.R. §2.204(d)(1).]
If there has not been a CBI claim or a response to an inquiry to a
responsible official has not been made at the close of the response time
[usually three working days; see Section 2.204(c)(2)(ii)], then the
information is not entitled to confidential treatment.
CAA Co.pl iance/Knforcenent -fT^ISGuidance Manual 1986
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Chapter Eleven Protection of Confidential Business Information
If the business makes .1 claim, the KPA office must make n |»rel Imlnary
determination based upon the following:
1. The factors set forth in 40 C.F.R. §2.203.
2. The factors set forth in 40 C.F.R. §2.208.
3. Any previous determinations under Subpart B that might be
applicable.
If the office determines that the information might be CBI, the office
must:
1. Furnish a written notice to each affected business stating that
EPA is determining whether the information is entitled to
confidential treatment and affording the business an opportunity
to comment;
2. Furnish a determination to the person requesting such information
that EPA is Inquiring into whether the information is entitled to
confidential treatment; that, therefore the request is initially
denied; and, that after further Inquiry a final determination will
be issued by the Office of General Counsel; and
3. Refer the matter to the Office of General Counsel.
The final confidentiality determination is made by the Office of General
Counsel. [See 40 C.F.R. §2.205.]
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Chapter Eleven Protection of Confidential Business Inforaation
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