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U.S. Code as of:
01/19/04
Section 7420. Noncompliance penalty
(a) Assessment and collection
(1)(A) Not later than 6 months after August 7, 1977, and after
notice and opportunity for a public hearing, the Administrator
shall promulgate regulations requiring the assessment and
collection of a noncompliance penalty against persons 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 section.
(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 subsection (b)(2)(B) of this
section.
(2)(A) Except as provided in subparagraph (B) or (C) of this
paragraph, the State or the Administrator shall assess and collect
a noncompliance penalty against every person who owns or operates -
(i) a major stationary source (other than a primary nonferrous
smelter which has received a primary nonferrous smelter order
under section 7419 of this title), which is not in compliance
with any emission limitation, emission standard or compliance
schedule under any applicable implementation plan (whether or not
such source is subject to a Federal or State consent decree), or
(ii) a stationary source which is not in compliance with an
emission limitation, emission standard, standard of performance,
or other requirement established under section 7411, 7477, 7603,
or 7412 of this title, or
(iii) a stationary source which is not in compliance with any
requirement of subchapter IV-A, V, or VI of this chapter, or
(iv) any source referred to in clause (i), (ii), or (iii) (for
which an extension, order, or suspension referred to in
subparagraph (B), or Federal or State consent decree is in
effect), or a primary nonferrous smelter which has received a
primary nonferrous smelter order under section 7419 of this title
which is not in compliance with any interim emission control
requirement or schedule of compliance under such extension,
order, suspension, or consent decree.
For purposes of subsection (d)(2) of this section, in the case of a
penalty 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 noncompliance with
the interim emission control requirement or the remaining steps in
the schedule of compliance referred to in such clause.
(B) Notwithstanding the requirements of subparagraph (A)(i) and
(ii), the owner or operator of any source shall be exempted from
the duty to pay a noncompliance penalty under such requirements
with respect to that source if, in accordance with the procedures
in subsection (b)(5) of this section, the owner or operator
demonstrates that the failure of such source to comply with any
such requirement is due solely to -
(i) a conversion by such source from the burning of petroleum
products or natural gas, or both, as the permanent primary energy
source to the burning of coal pursuant to an order under section
7413(d)(5) )1(! of this title or section 1857c-10 )1(! of this
title (as in effect before August 7, 1977);
(ii) in the case of a coal-burning source granted an extension
under the second sentence of section 1857c-10(c)(1) )1(! of this
title (as in effect before August 7, 1977), a prohibition from
using petroleum products or natural gas or both, by reason of an
order under the provisions of section 792(a) and (b) of title 15
or under any legislation which amends or supersedes such
provisions;
(iii) the use of innovative technology sanctioned by an
enforcement order under section 7413(d)(4) )1(! of this title;
(iv) an inability to comply with any such requirement, for
which inability the source has received an order under section
7413(d) )1(! of this title (or an order under section 7413 of
this title issued before August 7, 1977) which has the effect of
permitting a delay or violation of any requirement of this
chapter (including a requirement of an applicable implementation
plan) which inability results from reasons entirely beyond the
control of the owner or operator of such source or of any 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 7410(f) or (g) of this
title.
An exemption under this subparagraph shall cease to be effective if
the source fails to comply with the interim emission control
requirements or schedules of compliance (including increments of
progress) under any such extension, order, or suspension.
(C) The Administrator may, after notice and opportunity 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
Regulations under subsection (a) of this section 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)(1)(B)(i) of this section;
(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)(1)(B)(i) of this section, or
(B) the State has such a delegation in effect but fails with
respect to any particular person or source to assess or collect
the penalty in accordance 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 but reasonably specific
notice of noncompliance under this section to each person
referred to in subsection (a)(2)(A) of this section with respect
to each source owned or operated by such person which is not in
compliance as provided in such subsection, not later than July 1,
1979, or thirty days after the discovery of such noncompliance,
whichever is later;
(4) require each person to whom notice is given under paragraph
(3) to -
(A) calculate the amount of the penalty owed (determined in
accordance with subsection (d)(2) of this section) and the
schedule of payments (determined in accordance with subsection
(d)(3) of this section) for each such source and, within
forty-five days after the issuance of such notice or after the
denial of a petition under subparagraph (B), to submit that
calculation and proposed schedule, together with the
information necessary for an independent verification thereof,
to the State and to the Administrator, or
(B) submit a petition, within forty-five days after the
issuance of such notice, challenging such notice of
noncompliance or alleging entitlement to an exemption under
subsection (a)(2)(B) of this section with respect to a
particular source;
(5) require the Administrator to provide a hearing on the
record (within the meaning of subchapter II of chapter 5 of title
5) 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 paragraph (4)(B), unless the State
agrees to provide a hearing which is substantially similar to
such a hearing 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 accordance 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
subparagraph, notice, and public hearing and a showing by such
petitioner that the State decision under paragraph (5) is not in
accordance with the requirements of this section;
(7) require payment, in accordance with subsection (d) of this
section, of the penalty by each person to whom notice of
noncompliance is given under paragraph (3) with respect to each
noncomplying source for which such notice is given unless there
has been a final determination 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 operator 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 this
section; and
(9) require a final adjustment of the penalty within 180 days
after such source comes into compliance in accordance with
subsection (d)(4) of this section.
In any case in which the State establishes a noncompliance penalty
under this section, the State shall provide notice thereof to the
Administrator. A noncompliance penalty established by a State under
this section shall apply unless the Administrator, within ninety
days after the date of receipt of notice of the State penalty
assessment 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 noncompliance
penalty applicable to such source.
(c) Contract to assist in determining amount of penalty assessment
or payment schedule
If the owner or operator of any stationary source to whom a
notice is issued under subsection (b)(3) of this section -
(1) does not submit a timely petition under subsection
(b)(4)(B) of this section, or
(2) submits a petition under subsection (b)(4)(B) of this
section 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 contract with any person who has no
financial interest in the owner or operator of the source (or in
any person controlling, controlled by or under common control with
such source) to assist in determining the amount of the penalty
assessment or payment schedule with respect to such source. The
cost of carrying out such contract may be added to the penalty to
be assessed against the owner or operator of such source.
(d) Payment
(1) All penalties assessed by the Administrator under this
section shall be paid to the United States 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) of this
section, which is no less than the economic value which a delay
in compliance beyond July 1, 1979, may have for the owner of such
source, including the quarterly equivalent of the capital costs
of compliance and debt service over a normal amortization period,
not to exceed ten years, operation and maintenance costs foregone
as a result of noncompliance, 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 any such quarter for the purpose of
bringing that source into, and maintaining compliance with, such
requirement, to the extent that such expenditures have not been
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 expenditure 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 section shall be
paid in quarterly installments for the period of covered
noncompliance. All quarterly payments (determined without regard to
any adjustment or any subtraction under paragraph (2)(B)) after the
first payment shall be equal.
(B) The first payment shall be due on the date six months after
the date of issuance of the notice of noncompliance under
subsection (b)(3) of this section with respect to any source or on
January 1, 1980, whichever is later. Such first payment shall be in
the amount of the quarterly installment for the upcoming quarter,
plus the amount owed for any preceding period within the period of
covered 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 August 7, 1977, in the case of a source for
which notice of noncompliance under subsection (b)(3) of this
section is issued on or before the date two years after August 7,
1977, or
(ii) on the date of issuance of the notice of noncompliance
under subsection (b)(3) of this section, 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 payments, 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 section is in compliance
and is maintaining compliance with the applicable requirement, the
State (or the Administrator as the case may be) shall review the
actual expenditures 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 case may be) at
appropriate prevailing rates (as determined by the Secretary of
the Treasury) for any overpayment by such person, or
(B) assess and collect an additional payment with interest at
appropriate prevailing rates (as determined 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 nonpayment penalty for each
quarter during which such failure to pay persists. Such nonpayment
penalty shall be in an amount equal to 20 percent of the aggregate
amount of such person's penalties and nonpayment penalties with
respect to such source which are unpaid as of the beginning of such
quarter.
(e) Judicial review
Any action pursuant to this section, including any objection of
the Administrator under the last sentence of subsection (b) of this
section, shall be considered a final action for purposes of
judicial review of any penalty under section 7607 of this title.
(f) Other orders, payments, sanctions, or requirements
Any orders, payments, sanctions, or other requirements under this
section shall be in addition to any other permits, orders,
payments, sanctions, or other requirements established under this
chapter, and shall in no way affect any civil or criminal
enforcement proceedings brought under any provision of this chapter
or State or local law.
(g) More stringent emission limitations or other requirements
In the case of any emission limitation or other requirement
approved or promulgated by the Administrator under this chapter
after August 7, 1977, 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 August 7,
1977, the date for imposition of the non-compliance penalty under
this section, shall be either July 1, 1979, or the date on which
the source is required to be in full compliance with such emission
limitation or requirement, whichever is later, but in no event
later than three years after the approval or promulgation of such
emission limitation or requirement.
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