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U.S. Code as of:
01/19/04
Section 7419. Primary nonferrous smelter orders
(a) Issuance; hearing; enforcement orders; statement of grounds for
application; findings
(1) Upon application by the owner or operator of a primary
nonferrous smelter, a primary nonferrous smelter order under
subsection (b) of this section may be issued -
(A) by the Administrator, after thirty days' notice to the
State, or
(B) by the State in which such source is located, but no such
order issued by the State shall take effect until the
Administrator determines that such order has been issued in
accordance with the requirements of this chapter.
Not later than ninety days after submission by the State to the
Administrator of notice of the issuance of a primary nonferrous
smelter order under this section, the Administrator shall determine
whether or not such order has been issued by the State in
accordance with the requirements of this chapter. 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 primary nonferrous
smelter shall be referred to as a "primary nonferrous smelter
order". No primary nonferrous smelter may receive both an
enforcement order under section 7413(d) )1(! of this title and a
primary nonferrous smelter order under this section.
(B) Before any hearing conducted under this section, in the case
of an application made by the owner or operator of a primary
nonferrous smelter for a second order under this section, the
applicant shall furnish the Administrator (or the State as the case
may be) with a statement of the grounds on which such application
is based (including all supporting documents and information). The
statement of the grounds for the proposed order shall be provided
by the Administrator or the State in any case in which such State
or Administrator is acting on its own initiative. Such statement
(including such documents and information) shall be made available
to the public for a thirty-day period before such hearing and shall
be considered as part of such hearing. No primary nonferrous
smelter order may be granted unless the applicant establishes that
he meets the conditions required for the issuance of such order (or
the Administrator or State establishes the meeting of such
conditions when acting on their own initiative).
(C) Any decision with respect to the issuance of a primary
nonferrous smelter order shall be accompanied by a concise
statement of the findings and of the basis of such findings.
(3) For the purposes of sections 7410, 7604, and 7607 of this
title, any order issued by the State and in effect pursuant to this
subsection shall become part of the applicable implementation plan.
(b) Prerequisites to issuance of orders
A primary nonferrous smelter order under this section may be
issued to a primary nonferrous smelter if -
(1) such smelter is in existence on August 7, 1977;
(2) the requirement of the applicable implementation plan with
respect to which the order is issued is an emission limitation or
standard for sulfur oxides which is necessary and intended to be
itself sufficient to enable attainment and maintenance of
national primary and secondary ambient air quality standards for
sulfur oxides; and
(3) such smelter is unable to comply with such requirement by
the applicable date for compliance because no means of emission
limitation applicable to such smelter which will enable it to
achieve compliance with such requirement has been adequately
demonstrated to be reasonably available (as determined by the
Administrator, taking into account the cost of compliance,
non-air quality health and environmental impact, and energy
consideration).
(c) Second orders
(1) 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 as practicable. The increments of progress shall be
limited to requiring compliance with subsection (d) of this section
and, in the case of a second order, to procuring, installing, and
operating the necessary means of emission limitation as
expeditiously as practicable after the Administrator determines
such means have been adequately demonstrated to be reasonably
available within the meaning of subsection (b)(3) of this section.
(2) Not in excess of two primary nonferrous smelter orders 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 requirement 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) Interim measures; continuous emission reduction technology
(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 judgment of the Administrator to assure
attainment and maintenance of the national primary and secondary
ambient air quality standards during such period, taking into
account the aggregate effect on air quality of such order together
with all variances, extensions, waivers, enforcement orders,
delayed compliance orders and primary nonferrous smelter orders
previously issued under this chapter.
(B) Such interim requirements shall include -
(i) a requirement that the source to which the order applies
comply with such reporting requirements and conduct such
monitoring as the Administrator determines may be necessary, and
(ii) such measures as the Administrator determines are
necessary to avoid an imminent and substantial endangerment to
health of persons.
(C) Such interim measures shall also, except as provided in
paragraph (2), include continuous emission reduction technology.
The Administrator shall 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 Administrator
determines are 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 standards 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 be 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 be 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 shall, within ninety days, hold
a hearing on the record in accordance with section 554 of title 5.
At such hearing the Administrator shall require the smelter
involved to present information relating to any alleged cessation
of operations and the detailed reasons or justifications therefor.
On the basis of such hearing the Administrator shall make findings
of fact as to the effect of such requirement and on the alleged
cessation of operations and shall make such recommendations as he
deems appropriate. Such report, findings, and recommendations shall
be available to the public, and shall 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 a waiver under
paragraph (2), the Administrator may, on his own motion, conduct an
investigation and use the authority of section 7621 of this title.
(4) In the case of any smelter which on August 7, 1977, uses
continuous emission reduction technology and supplemental controls
and which receives an initial primary nonferrous smelter order
under this section, no additional continuous emission reduction
technology shall be required as a condition of such order unless
the Administrator determines, at any time, after notice and public
hearing, that such additional continuous emission reduction
technology is adequately demonstrated to be reasonably available
for the primary nonferrous smelter industry.
(e) Termination of orders
At any time during which an order under this section applies, the
Administrator 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 hearing, 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) of this section.
(f) Violation of requirements
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) of this section, he shall -
(1) enforce such requirement under section 7413 of this title,
(2) (after notice and opportunity for public hearing) 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 7420 of this title, or
(4) take any appropriate combination of such actions.
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