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U.S. Code as of:
01/19/04
Section 7411. Standards of performance for new stationary sources
(a) Definitions
For purposes of this section:
(1) The term "standard of performance" means a standard for
emissions of air pollutants which reflects the degree of emission
limitation achievable through the application of the best system
of emission reduction which (taking into account the cost of
achieving such reduction and any nonair quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated.
(2) The term "new source" means any stationary source, the
construction or modification of which is commenced after the
publication of regulations (or, if earlier, proposed regulations)
prescribing a standard of performance under this section which
will be applicable to such source.
(3) The term "stationary source" means any building, structure,
facility, or installation which emits or may emit any air
pollutant. Nothing in subchapter II of this chapter relating to
nonroad engines shall be construed to apply to stationary
internal combustion engines.
(4) The term "modification" means any physical change in, or
change in the method of operation of, a stationary source which
increases the amount of any air pollutant emitted by such source
or which results in the emission of any air pollutant not
previously emitted.
(5) The term "owner or operator" means any person who owns,
leases, operates, controls, or supervises a stationary source.
(6) The term "existing source" means any stationary 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 reduction of the
pollution generated by a source before such pollution is
emitted into the ambient air, including precombustion cleaning
or treatment of fuels.
(8) A conversion to coal (A) by reason of an order under
section 2(a) of the Energy Supply and Environmental Coordination
Act of 1974 [15 U.S.C. 792(a)] or any amendment thereto, or any
subsequent enactment which supersedes such Act [15 U.S.C. 791 et
seq.], or (B) which qualifies under section 7413(d)(5)(A)(ii)
)1(! of this title, shall not be deemed to be a modification for
purposes of paragraphs (2) and (4) of this subsection.
(b) List of categories of stationary sources; standards of
performance; information on pollution control techniques; sources
owned or operated by United States; particular systems; revised
standards
(1)(A) The Administrator shall, within 90 days after December 31,
1970, 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 endanger public health or welfare.
(B) Within one year after the inclusion of a category 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
considering such comments, he shall promulgate, within one year
after such publication, such standards with such modifications as
he deems appropriate. The Administrator shall, at least every 8
years, review and, if appropriate, revise such standards following
the procedure required by this subsection for promulgation of such
standards. Notwithstanding the requirements of the previous
sentence, the Administrator need not review any such standard if
the Administrator determines that such review is not appropriate in
light of readily available information on the efficacy of such
standard. Standards of performance or revisions thereof shall
become effective upon promulgation. When implementation and
enforcement of any requirement of this chapter indicate that
emission limitations and percent reductions beyond those required
by the standards promulgated under this section are achieved in
practice, the Administrator shall, when revising standards
promulgated under this section, consider the emission limitations
and percent reductions achieved in practice.
(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 categories 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) of this
section, 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)(1)(A)(i) and (ii) )1(! of this section shall be
promulgated not later than one year after August 7, 1977. 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 be required to comply with such revised
standards.
(c) State implementation and enforcement of standards of
performance
(1) Each State may develop and submit to the Administrator 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 chapter to implement and enforce
such standards.
(2) Nothing in this subsection shall prohibit the Administrator
from enforcing any applicable standard of performance under this
section.
(d) Standards of performance for existing sources; remaining useful
life of source
(1) The Administrator shall prescribe regulations which shall
establish a procedure similar to that provided by section 7410 of
this title under which each State shall submit to the Administrator
a plan which (A) establishes standards 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 7408(a) of this title or emitted from a
source category which is regulated under section 7412 of this title
but (ii) to which a standard of performance under this section
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 State in applying a standard of
performance to any particular source under a plan submitted under
this paragraph to take into consideration, among other factors, the
remaining useful life of the existing source to which such standard
applies.
(2) The Administrator shall have the same authority -
(A) to prescribe a plan for a State in cases where the State
fails to submit a satisfactory plan as he would have under
section 7410(c) of this title in the case of failure to submit an
implementation plan, and
(B) to enforce the provisions of such plan in cases where the
State fails to enforce them as he would have under sections 7413
and 7414 of this title with respect to an implementation plan.
In promulgating a standard of performance under a plan prescribed
under this paragraph, the Administrator shall take into
consideration, among other factors, remaining useful lives of the
sources in the category of sources to which such standard applies.
(e) Prohibited acts
After the effective date of standards of performance 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) New source standards of performance
(1) For those categories of major stationary sources that the
Administrator listed under subsection (b)(1)(A) of this section
before November 15, 1990, and for which regulations had not been
proposed by the Administrator by November 15, 1990, the
Administrator shall -
(A) propose regulations establishing standards of performance
for at least 25 percent of such categories of sources within 2
years after November 15, 1990;
(B) propose regulations establishing standards of performance
for at least 50 percent of such categories of sources within 4
years after November 15, 1990; and
(C) propose regulations for the remaining categories of sources
within 6 years after November 15, 1990.
(2) In determining priorities for promulgating standards for
categories of major stationary sources for the purpose of paragraph
(1), the Administrator shall consider -
(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
(C) the mobility and competitive nature of each 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 under
this subsection, the Administrator shall consult with appropriate
representatives of the Governors and of State air pollution control
agencies.
(g) Revision of regulations
(1) Upon application by the Governor of a State showing that the
Administrator has failed to specify in regulations under subsection
(f)(1) of this section 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)(1)(A) of this section 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 specify such
category of stationary sources.
(3) Upon application of the Governor of a State showing that the
Administrator has failed to apply properly the criteria required to
be considered under subsection (f)(2) of this section, the
Administrator shall revise the list under subsection (b)(1)(A) of
this section 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
(B) as a result of such technology or process, the new source
standard of performance in effect under this section for such
category no longer reflects the greatest degree of emission
limitation achievable through application of 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) has been adequately demonstrated,
the Administrator shall revise such standard of performance for
such category accordingly.
(5) Unless later deadlines for action of the Administrator are
otherwise prescribed under this section, the Administrator shall,
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.
(6) Before taking any action required by subsection (f) of this
section or by this subsection, the Administrator shall provide
notice and opportunity for public hearing.
(h) Design, equipment, work practice, or operational standard;
alternative emission limitation
(1) For purposes of this section, if in the judgment of the
Administrator, it is not feasible to prescribe or enforce a
standard of performance, he may instead promulgate 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 demonstrated. In the event the
Administrator promulgates a design or equipment standard under this
subsection, he shall include as part of such standard such
requirements as will assure the proper operation and maintenance of
any such element of design or equipment.
(2) For the purpose of this subsection, the phrase "not feasible
to prescribe or enforce a standard of performance" 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 requirement for, or use of, such a conveyance would be
inconsistent with any Federal, State, or local law, or (B) the
application of measurement methodology to a particular class of
sources is not practicable due to technological or economic
limitations.
(3) If after notice and opportunity for public hearing, any
person establishes to the satisfaction of the Administrator 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 compliance
with this section with respect to such pollutant.
(4) Any standard promulgated under paragraph (1) shall be
promulgated in terms of standard of performance whenever it becomes
feasible to promulgate and enforce such standard in such terms.
(5) Any design, equipment, work practice, or operational
standard, or any combination thereof, described in this subsection
shall be treated as a standard of performance for purposes of the
provisions of this chapter (other than the provisions of subsection
(a) of this section and this subsection).
(i) Country elevators
Any regulations promulgated by the Administrator under this
section applicable to grain elevators shall not apply to country
elevators (as defined by the Administrator) which have a storage
capacity of less than two million five hundred thousand bushels.
(j) Innovative technological systems of continuous emission
reduction
(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 technological system or systems of continuous emission
reduction. 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 Administrator 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 there is a substantial likelihood that such system or systems
will achieve greater continuous 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 Administrator that the
proposed system will not cause or contribute to an unreasonable
risk to public health, welfare, or safety in its operation,
function, or malfunction, and
(iv) the granting of such waiver is consistent with the
requirements of subparagraph (C).
In making any determination under clause (ii), the Administrator
shall take into account any previous failure of such system or
systems to operate effectively or to meet any requirement of the
new source performance standards. In determining whether an
unreasonable risk exists under clause (iii), the Administrator
shall consider, among other factors, whether and to what extent the
use of the proposed technological system will cause, increase,
reduce, or eliminate emissions of any unregulated pollutants;
available methods for reducing or eliminating any risk to public
health, welfare, or safety which may be associated with the use of
such system; and the availability of other technological systems
which may be used to conform to standards under this section
without causing or contributing to such unreasonable risk. The
Administrator may conduct such tests and may require the owner or
operator of the proposed source to conduct such tests and provide
such information as is necessary to carry out clause (iii) of this
subparagraph. Such requirements shall include a requirement for
prompt reporting of the emission of any unregulated pollutant from
a system if such pollutant was not emitted, or was emitted in
significantly lesser amounts without use of such system.
(B) A waiver under this paragraph shall be granted on such terms
and conditions as the Administrator determines to be necessary to
assure -
(i) emissions from the source will not prevent attainment and
maintenance of any national ambient air quality standards, and
(ii) proper functioning of the technological system or systems
authorized.
Any such term or condition shall be treated as a standard of
performance for the purposes of subsection (e) of this section and
section 7413 of this title.
(C) The number of waivers granted under this paragraph with
respect to a proposed technological system of continuous emission
reduction shall not exceed such number as the Administrator finds
necessary to ascertain whether or not such system will achieve the
conditions specified in clauses (ii) and (iii) of subparagraph (A).
(D) A waiver under this paragraph shall extend to the sooner of -
(i) the date determined by the Administrator, after
consultation with the owner or operator of the source, taking
into consideration the design, installation, and capital cost of
the technological system or systems being used, or
(ii) the date on which the Administrator determines that such
system has failed to -
(I) achieve at least an equivalent continuous emission
reduction to that required to be achieved under the standards
of performance which would otherwise apply, or
(II) comply with the condition specified in paragraph
(1)(A)(iii),
and that such failure cannot be corrected.
(E) In carrying out subparagraph (D)(i), the Administrator shall
not permit any waiver for a source or portion thereof to extend
beyond the date -
(i) seven years after the date on which any waiver is granted
to such source or portion thereof, or
(ii) four years after 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 which the innovative
technological system or systems of continuous emission reduction is
used.
(2)(A) If a waiver under paragraph (1) is terminated under clause
(ii) of paragraph (1)(D), the Administrator shall grant an
extension of the requirements of this section for such source for
such minimum period as may be necessary to comply with the
applicable standard of performance under 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 containing increments of
progress which require compliance with the applicable standards of
performance as expeditiously as practicable and include such
measures as are necessary and practicable in the interim to
minimize emissions. Such schedule shall be treated as a standard of
performance for purposes of subsection (e) of this section and
section 7413 of this title.
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