§ 7420. Noncompliance penalty

Footnotes

1. 1 See References in Text note below.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

1. 1955

   Clean Air Act Amendments of 1977

   Pub. L. 95–95 title I § 118 · 91 Stat. 685

   Enacted · 42 U.S.C. § 7420

   July 14, 1955, ch. 360, title I, § 120, as added Pub. L. 95–95, title I, § 118, Aug. 7, 1977, 91 Stat. 714

   Source evidence

   Code source credit
   July 14, 1955, ch. 360, title I, § 120, as added Pub. L. 95–95, title I, § 118, Aug. 7, 1977, 91 Stat. 714

   Enacted provision · exact public law section
   Sec. 118. noncompliance penalty Part A of title I of the Clean Air Act is amended by adding the following new section at the end thereof: “Sec. 120. “noncolpliance penalty (a) (1) (A) Not later than 6 months after the date of Notice and hearing. Regulations. 42 USC 7420. 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 persons referred to in paragraph (2)(A). “(B) (i) Each State may develop and submit to the Administrator State plans. Delegation of authority. 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). “(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 119) which is not in compliance with any emission limitation, emission standard or compliance schedule under any applicable implementation plan, 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 111 or 112 of this Act, or Ante, pp. 697, 699–701, 703; Post, p. 791; Ante, pp. 701, 703; Post, p. 791. Ante, pp. 709, 712. “(iii) any source referred to in clause (i) or (ii) (for which an extension, order, or suspension referred to in subparagraph (B) is in effect), or a primary nonferrous smelter which has received a primary nonferrous smelter order under section 119 which is not in compliance with any interim emission control requirement or schedule of compliance under such extension, order, or suspension. For purposes of subsection (d)(2), 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) Exemption. 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), 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 119; “(ii) in the case of a coal-burning source granted an extension under the second sentence of section 119(c)(1), 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 15 USC 792. any legislation which amends or supersedes such provisions; “(iii) the use of innovative technology sanctioned by an enforcement order under section 113(d)(4); Ante, p. 705. “(iv) an inability to comply with any such requirement, for which inability the source has received an order under section Ante, p. 705. 113(d) (or an order under section 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 (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 Ante, pp. 691, 692. suspension is authorized under section 110 (f) or (g). 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 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)(1)(B)(1); “(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 (e), 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) 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)) and the schedule of payments (determined in accordance with subsection (d)(3)) 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) 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, United States Code) and to make a decision on such petition 5 USC 551. (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. Notice and hearing. 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 Payment. 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 Adjustment. 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 (6), 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). A delayed compliance penalty established by a State under this section Delayed penalty, objection. shall apply unless the Administrator, within ninety days after the date of publication of the proposed penalty 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 Substitution. Administrator objects, he shall immediately establish a substitute delayed compliance penalty applicable to such facility. “(c) If the owner or operator of any stationary source to whom a Contract. notice is issued under subsection (b)(3)— “(1) does not submit a timely petition under subsection (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 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) (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), which is no less than 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 a delay in compliance beyond July 1, 1979, 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 he 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) 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 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 enactment, or “(ii) on the date of issuance of the notice of noncompliance 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 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 Quarterly nonpayment penalty. 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) 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. Post, pp. 772, 776, 777. “(f) 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 Act, and shall in no way affect any civil or criminal enforcement proceedings brought under any provision of this Act or State or local law. “(g) In the case of any emission limitation or other requirement approved or promulgated by the Administrator under this Act after the enactment of the Clean Air Act Amendments of 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 enactment of the Clean Air Act Amendments of 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.”.

2. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(28) · 91 Stat. 1393

   Inserted · 42 U.S.C. § 7420(a)(2)(A)

   Pub. L. 95–190, § 14(a)(28), (29), in cls. (i) and (iii) inserted provisions relating to consent decrees wherever appearing

   Source evidence

   Code amendment note
   Subsec. (a)(2)(A). Pub. L. 95–190, § 14(a)(28), (29), in cls. (i) and (iii) inserted provisions relating to consent decrees wherever appearing.

   Enacted provision · exact public law section
   (28) in section 120(a) (2) (A) (i) insert “(whether or not such Noncompliance penalty. Ante, p. 715. source is subject to a Federal or State consent decree)” after “plan”;

3. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(30) · 91 Stat. 1393

   Inserted · 42 U.S.C. § 7420(a)(2)(B)

   Pub. L. 95–190, § 14(a)(30), (31), in cl. (i) inserted reference to section 7413(d)(5) of this title, and in cls. (i) and (ii) inserted provision relating to orders in effect under section 1857c–10 of this title before Aug. 7, 1977, wherever appearing

   Source evidence

   Code amendment note
   Subsec. (a)(2)(B). Pub. L. 95–190, § 14(a)(30), (31), in cl. (i) inserted reference to section 7413(d)(5) of this title, and in cls. (i) and (ii) inserted provision relating to orders in effect under section 1857c–10 of this title before Aug. 7, 1977, wherever appearing.

   Enacted provision · exact public law section
   (30) in section 120(a) (2) (B) (i) insert “section 113(d) (5) or” after “under” and insert “(as in effect before the date of the enactment of the Clean Air Act Amendments of 1977)” after 42 USC 7401 note. “119”;

4. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(34) · 91 Stat. 1393

   1. Inserted · 42 U.S.C. § 7420(b)

      Pub. L. 95–190, § 14(a)(34)–(36), in closing provisions inserted provisions relating to notice to the Administrator when a noncompliance penalty is established by a State

   2. Substituted · 42 U.S.C. § 7420(b)

      Pub. L. 95–190, § 14(a)(34)–(36), in closing provisions substituted references to noncompliance for references to delayed compliance in two places, “source” for “facility”

   3. Substituted · 42 U.S.C. § 7420(b)

      Pub. L. 95–190, § 14(a)(34)–(36), in closing provisions substituted references to noncompliance for references to delayed compliance in two places, “receipt of notice of the State penalty assessment” for “publication of the proposed penalty”

   Source evidence

   Code amendment note
   Subsec. (b). Pub. L. 95–190, § 14(a)(34)–(36), in closing provisions inserted provisions relating to notice to the Administrator when a noncompliance penalty is established by a State, and substituted references to noncompliance for references to delayed compliance in two places, “source” for “facility”, and “receipt of notice of the State penalty assessment” for “publication of the proposed penalty”.

   Enacted provision · exact public law section
   (34) in section 120(b), after paragraph (9) insert: “In any State penalty, notice. case in which the State establishes a noncompliance penalty under this section, the State shall provide notice thereof to the Administrator.”;

5. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(33) · 91 Stat. 1393

   Substituted · 42 U.S.C. § 7420(b)(2)(A)

   Pub. L. 95–190, § 14(a)(33), substituted “(a)(1)(B)(i)” for “(e)”

   Source evidence

   Code amendment note
   Subsec. (b)(2)(A). Pub. L. 95–190, § 14(a)(33), substituted “(a)(1)(B)(i)” for “(e)”.

   Enacted provision · exact public law section
   (33) in section 120(b)(2)(A) strike out “subsection (e)” and insert in lieu thereof “subsection (a) (1) (B) (i)”;

6. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(32) · 91 Stat. 1393

   Substituted · 42 U.S.C. § 7420(b)(8)

   Pub. L. 95–190, § 14(a)(32), substituted “(4)” for “(6)”

   Source evidence

   Code amendment note
   Subsec. (b)(8). Pub. L. 95–190, § 14(a)(32), substituted “(4)” for “(6)”.

   Enacted provision · exact public law section
   (32) in section 120(b)(8) strike out “(6)” and substitute “(4)”;

7. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(37) · 91 Stat. 1393

   1. Inserted · 42 U.S.C. § 7420(d)(2)(A)

      Pub. L. 95–190, § 14(a)(37), inserted provisions relating to inclusion of the economic value of a delay in compliance

   2. Substituted · 42 U.S.C. § 7420(d)(2)(A)

      Pub. L. 95–190, § 14(a)(37), substituted “such a delay” for “a delay in compliance beyond July 1, 1979,”

   Source evidence

   Code amendment note
   Subsec. (d)(2)(A). Pub. L. 95–190, § 14(a)(37), inserted provisions relating to inclusion of the economic value of a delay in compliance, and substituted “such a delay” for “a delay in compliance beyond July 1, 1979,”.

   Enacted provision · exact public law section
   (37) in section 120(d)(2)(A) insert “the economic value which a delay in compliance beyond July 1, 1979, may have for the owner of such source, including” after “no less than”; and strike out “which a delay in compliance beyond July 1, 1979, may have for the owner or operator of such source” and insert in lieu thereof “which such a delay may have for the owner or operator of such source”;

8. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(38) · 91 Stat. 1393

   Substituted · 42 U.S.C. § 7420(e)

   Pub. L. 95–190, § 14(a)(38), substituted “subsection, shall” for “subsection shall”

   Source evidence

   Code amendment note
   Subsec. (e). Pub. L. 95–190, § 14(a)(38), substituted “subsection, shall” for “subsection shall”.

   Enacted provision · exact public law section
   (38) in section 120(e) insert a comma after “(b)”;

9. 1990

   Pub. L. 101–549 title VII § 710(a) · 104 Stat. 2399

   1. Inserted · 42 U.S.C. § 7420(a)(2)(A)

      Pub. L. 101–549 inserted reference to sections 7477 and 7603 of this title in cl. (ii)

   2. Added · 42 U.S.C. § 7420(a)(2)(A)

      Pub. L. 101–549 added cl. (iii)

   3. Redesignated · 42 U.S.C. § 7420(a)(2)(A)

      Pub. L. 101–549 redesignated former cl. (iii) as (iv)

   4. Inserted · 42 U.S.C. § 7420(a)(2)(A)

      Pub. L. 101–549 inserted reference to cl. (iii)

   Source evidence

   Code amendment note
   Subsec. (a)(2)(A). Pub. L. 101–549 inserted reference to sections 7477 and 7603 of this title in cl. (ii), added cl. (iii), and redesignated former cl. (iii) as (iv) and inserted reference to cl. (iii).

   Enacted provision · exact public law section
   (a) Section 120.— Section 120(a)(2)(A) of the Clean Air Act is amended as follows: (1) Insert “, 167, 303,” after “111” in clause (ii). (2) Redesignate clause (iii) as (iv) and in new clause (iv) strike “clause (i) or (ii)”, and insert “clause (i), (ii), or (iii)”. (3) Insert the following new clause after clause (ii)— “(iii) a stationary source which is not in compliance with any requirement of title IV, V, or VI of this Act, or”.

15 of 15 references resolved to an enrolled provision