§ 7502. Nonattainment plan provisions in general

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 § 129(b) · 91 Stat. 685

   Enacted · 42 U.S.C. § 7502

   July 14, 1955, ch. 360, title I, § 172, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 746

   Source evidence

   Code source credit
   July 14, 1955, ch. 360, title I, § 172, as added Pub. L. 95–95, title I, § 129(b), Aug. 7, 1977, 91 Stat. 746

   Enacted provision · exact public law section
   (b) Title I of such Act is amended by adding the following new part at the end thereof: “Part D— Plan Requirements for Nonattainment Areas “definitions “Sec. 171. For the purpose of this part and section 110(a)(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 thereafter) which are sufficient in the judgment of the Administrator, to provide for attainment of the applicable national ambient air quality standard by the date required in section 172(a). “(2) The term ‘nonattainment area’ means, for any air pollutant an area which is shown by monitored data or which is calculated by air quality modeling (or other methods determined by the Administrator to be reliable) to exceed any national ambient air quality standard for such pollutant. Such term includes any area identified under subparagraphs (A) through (C) of section Ante, p. 687. 107(d)(1). “(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 demonstrates 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 pollutant in excess of the amount allowable under applicable new source standards of performance. “(4) The terms ‘modifications’ and ‘modified’ mean the same as the term ‘modification’ as used in section 111(a)(4) of this 42 USC 7411. Act. “Sec. 172. “nonattainment plan provisions (a) (1) The provisions of an applicable implementation plan for a State relating to attainment and maintenance of national ambient air quality standards in any nonattainment area which are required by section 110(a)(2)(I) as a precondition for the construction 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 practicable, 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 air 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 attainment 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 provide for the attainment of the national primary standard 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 Notice and hearing. Ante, p. 694. under section 110(c)) after reasonable notice and public hearing; “(2) provide for the implementation of all reasonably 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 m the area as may be obtained through the adoption, at a minimum, of reasonably available control technology; “(4) include a comprehensive, accurate, current inventory of Emissions inventory. actual emissions from all sources (as provided 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 assure 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 required under paragraph (1); “(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 major new or modified stationary sources for each such area; “(6) require permits for the construction and operation of new Permits. or modified major stationary sources in accordance with section 173 (relating to permit requirements); “(7) identify and commit the financial and manpower resources necessary to carry out the plan provisions required by this subsection; “(8) contain emission limitations, schedules of compliance 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 accordance with section 174 (relating to planning procedures) and include (A) an identification and analysis 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 enforceable document, the necessary requirements and schedules and timetables for compliance, and are committed to implement and enforce the appropriate elements of the pl an; “(11) in the case of plans which make a demonstration pursue and to paragraph (2) of subsection (a)— “(A) establish a program which requires, prior to issuance Program. of any permit for construction or modification of a major emitting facility, an analysis of alternative sites, sizes, production processes, and environmental control techniques for such proposed source which demonstrates 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 implementation of a vehicle emission control inspection and maintenance program; and “(C) identify other measures necessary’ to provide for attainment of the applicable national ambient air quality standard not later than December 31, 1987. “(c) In the case of a State plan revision required under the Clean Air Act Amendments of 1977 to be submitted before July 1, 1982, by reason of a demonstration under subsection (a)(2), effective on such date such plan shall contain enforceable measures to assure attainment of the applicable standard not later than July 1, 1987. “Sec. 173. “permit requirements 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 time the facility is to commence operation, total allowable emissions from existing sources in the region, from new sources which are not major emitting facilities, and from the proposed facility will be sufficiently less than total emissions from existing sources allowed under the 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 from the proposed new or modified major stationary source will not cause or contribute to emissions levels which exceed the allowance permitted 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; and “(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 compliance, or on a schedule for compliance, with all applicable emission limitations and standards under this Act. Any emission reductions required as a precondition of the issuance of a permit under paragraph (1)(A) shall be legally binding before such permit may be issued. “Sec. 174. “planning procedures (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 standard 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 determine which elements of a revised implementation plan will lie 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 regional agencies, or any combination of local governments, regional agencies, or the State. Where possible within the time required under this subsection, the implementation plan required by this part shall be prepared by an organization of elected officials of local governments designated by agreement of the local governments in an affected area, and certified by the State for this purpose. Where such an organization has not been designated by Consultation. 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 consultation with elected officials of local governments, and in accordance with the determination under the first sentence of this subparagraph, shall designate an organization of elected officials of local governments in the affected area or a State agency to prepare such plan. Where feasible, such organization shall be the metropolitan planning organization designated to conduct the continuing, 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 organization with both responsibilities. “(b) The preparation of implementation plan provisions under this part shall be coordinated with the continuing, 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 Ante, pp. 691–696. take into account the requirements of this part. “Sec. 175. “environmental protection agency grants (a) The Administrator shall make grants to any organization 42 USC 7505. of local elected officials with transportation or air quality maintenance planning responsibilities recognized by the State under section 174(a) for payment of the reasonable costs of developing a plan revision under this part. “(b) The amount granted to any organization under 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 grant under this paragraph, and shall supplement any funds available under Federal law to such organization for transportation or air quality maintenance planning. Grants under this section shall not be used for construction. “Sec. 176. “limitations on certain federal assistance (a) The Administrator shall not approve any projects or 42 USC 7506. 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 23 USC 101 et seq. transportation improvement projects related to air quality improvement or maintenance, in any air quality control region— “(1) in which any primary ambient air quality standard has not been attained, “(2) where transportation control measures are necessary for the attainment of such standard, and “(3) where the Administrator finds after July 1, 1979, that the Governor has not submitted an implementation plan which considers each of the elements 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 July 1, 1982). “(b) In any area in which the State or, as the case may be, the general purpose local government or governments or any regional agency designated by such general purpose local governments for such purpose, is not, implementing any requirement of an approved or promulgated Ante, pp. 691–696. plan under section 110, including any requirement for 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 conform to a plan after it has been approved or promulgated under section 110. No metropolitan planning organization designated under section 134 of title 23, United States Code, shall give its approval to any project, program, or plan which does not conform to a plan approved or promulgated under section 110. The assurance of conformity to such a plan shall be an affirmative responsibility of the head of such department, agency, or instrumentality. “(d) Each department, agency, or instrumentality of the Federal Government having authority to conduct or support any program with air-quality related transportation consequences shall give priority in the exercise of such authority, consistent with statutory requirements for allocation among States or other jurisdictions, to the implementation of those portions of plans prepared under this section to achieve and maintain the national primary ambient air quality standard. This paragraph extends to, but is not limited to, authority exercised under 49 USC 1601 note. 12 USC 1749m note. the Urban Mass Transportation Act, title 23 of the United States Code, and the Housing and Urban Development Act. “Sec. 177. “new motor vehicle emission standards in nonattainment areas 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 if— “(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 standards at least two years before commencement of such model year (as determined by regulations of the Administrator). “Sec. 178. “guidance documents The Administrator shall issue guidance documents 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.”.

2. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(55) · 91 Stat. 1393

   Substituted · 42 U.S.C. § 7502(b)(4)

   Pub. L. 95–190, § 14(a)(55), substituted “subsection (a)” for “paragraph (1)”

   Source evidence

   Code amendment note
   Subsec. (b)(4). Pub. L. 95–190, § 14(a)(55), substituted “subsection (a)” for “paragraph (1)”.

   Enacted provision · exact public law section
   (55) in section 172(b)(4) strike out “paragraph (1)” and insert in lieu thereof “subsection (a)”;

3. 1977

   Safe Drinking Water Amendments of 1977

   Pub. L. 95–190 § 14(a)(56) · 91 Stat. 1393

   Substituted · 42 U.S.C. § 7502(c)

   Pub. L. 95–190, § 14(a)(56), substituted “December 31” for “July 1”

   Source evidence

   Code amendment note
   Subsec. (c). Pub. L. 95–190, § 14(a)(56), substituted “December 31” for “July 1”.

   Enacted provision · exact public law section
   (56) in section 172(c) strike, out “July 1, 1987” and insert in lieu thereof “December 31, 1987”;

4. 1990

   Pub. L. 101–549 title I § 102(b) · 104 Stat. 2399

   1. Amended · 42 U.S.C. § 7502

      Pub. L. 101–549 amended section generally

   2. Substituted · 42 U.S.C. § 7502

      Pub. L. 101–549 substituting present provisions for provisions which related to: in subsec. (a), expeditious attainment of national ambient air quality standards; in subsec. (b), requisite provisions of plan; and in subsec. (c), attainment of applicable standard not later than July 1, 1987

   Source evidence

   Code amendment note
   Pub. L. 101–549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), expeditious attainment of national ambient air quality standards; in subsec. (b), requisite provisions of plan; and in subsec. (c), attainment of applicable standard not later than July 1, 1987.

   Enacted provision · exact public law section
   (b) Nonattainment Plan Provisions in General.— Section 172 (42 U.S.C. 7502) of the Clean Air Act is amended to read as follows: “SEC. 172. NONATTAINMENT PLAN PROVISIONS IN GENERAL. “(a) Classifications and Attainment Dates.— “(1) Classifications.— (A) On or after the date the Administrator promulgates the designation of an area as a nonattainment area pursuant to section 107(d) with respect to any national ambient air quality standard (or any revised standard, including a revision of any standard in effect on the date of the enactment of the Clean Air Act Amendments of 1990), the Administrator may classify the area for the purpose of applying an attainment date pursuant to paragraph (2), and for other purposes. In determining the appropriate classification, if any, for a nonattainment area, the Administrator may consider such factors as the severity of nonattainment in such area and the availability and feasibility of the pollution control measures that the Administrator believes may be necessary to provide for attainment of such standard in such area. “(B) The Administrator shall publish a notice in the Federal Federal Register, publication. Register announcing each classification under subparagraph (A), except the Administrator shall provide an opportunity for at least 30 days for written comment. Such classification shall not be subject to the provisions of sections 553 through 557 of title 5 of the United States Code (concerning notice and comment) and shall not be subject to judicial review until the Administrator takes final action under subsection (k) or (1) of section 110 (concerning action on plan submissions) or section 179 (concerning sanctions) with respect to any plan submissions required by virtue of such classification. “(C) This paragraph shall not apply with respect to nonattainment areas for which classifications are specifically provided under other provisions of this part. “(2) Attainment dates for nonattainment areas.— (A) The attainment date for an area designated nonattainment with respect to a national primary ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable, but no later than 5 years from the date such area was designated nonattainment under section 107(d), except that the Administrator may extend the attainment date to the extent the Administrator determines appropriate, for a period no greater than 10 years from the date of designation as nonattainment, considering the severity of nonattainment and the availability and feasibility of pollution control measures. “(B) The attainment date for an area designated nonattainment with respect to a secondary national ambient air quality standard shall be the date by which attainment can be achieved as expeditiously as practicable after the date such area was designated nonattainment under section 107(d). “(C) Upon application by any State, the Administrator may extend for 1 additional year (hereinafter referred to as the ‘Extension Year’) the attainment date determined by the Administrator under subparagraph (A) or (B) if— “(i) the State has complied with all requirements and commitments pertaining to the area in the applicable implementation plan, and “(ii) in accordance with guidance published by the Administrator, no more than a minimal number of exceedances of the relevant national ambient air quality standard has occurred in the area in the year preceding the Extension Year. No more than 2 one-year extensions may be issued under this subparagraph for a single nonattainment area. “(D) This paragraph shall not apply with respect to nonattainment areas for which attainment dates are specifically provided under other provisions of this part. “(b) Schedule for Plan Submissions.— At the time the Administrator promulgates the designation of an area as nonattainment with respect to a national ambient air quality standard under section 107(d), the Administrator shall establish a schedule according to which the State containing such area shall submit a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) and section 110(a)(2). Such schedule shall at a minimum, include a date or dates, extending no later than 3 years from the date of the nonattainment designation, for the submission of a plan or plan revision (including the plan items) meeting the applicable requirements of subsection (c) and section 110(a)(2). “(c) Nonattainment Plan Provisions.— The plan provisions (including plan items) required to be submitted under this part shall comply with each of the following: “(1) In general.— Such plan provisions shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards. “(2) rfp.— Such plan provisions shall require reasonable further progress. “(3) Inventory.— Such plan provisions shall include a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant or pollutants in such area, including such periodic revisions as the Administrator may determine necessary to assure that the requirements of this part are met. “(4) Identification and quantification.— Such plan provisions shall expressly identify and quantify the emissions, if any, of any such pollutant or pollutants which will be allowed, in accordance with section 173(a)(1)(B), from the construction and operation of major new or modified stationary sources in each such area. The plan shall demonstrate to the satisfaction of the Administrator that the emissions quantified for this purpose will be consistent with the achievement of reasonable further progress and will not interfere with attainment of the applicable national ambient air quality standard by the applicable attainment date. “(5) Permits for new and modified major stationary sources.— Such plan provisions shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section 173. “(6) Other measures.— Such plan provisions shall include enforceable emission limitations, and such other control measures, means or techniques (including economic incentives such as fees, marketable permits, and auctions of emission rights), as well as schedules and timetables for compliance, as may be necessary or appropriate to provide for attainment of such standard in such area by the applicable attainment date specified in this part. “(7) Compliance with section 110 (a) (2).— Such plan provisions shall also meet the applicable provisions of section 110(a)(2). “(8) Equivalent techniques.— Upon application by any State, the Administrator may allow the use of equivalent modeling, emission inventory, and planning procedures, unless the Administrator determines that the proposed techniques are, in the aggregate, less effective than the methods specified by the Administrator. “(9) Contingency measures.— Such plan shall provide for the implementation of specific measures to be undertaken if the area fails to make reasonable further progress, or to attain the national primary ambient air quality standard by the attainment date applicable under this part. Such measures shall be included in the plan revision as contingency measures to take effect in any such case without further action by the State or the Administrator. “(d) Plan Revisions Required in Response to Finding of Plan Inadequacy.— Any plan revision for a nonattainment area which is required to be submitted in response to a finding by the Administrator pursuant to section 110(k)(5) (relating to calls for plan revisions) must correct the plan deficiency (or deficiencies) specified by the Administrator and meet all other applicable plan requirements of section 110 and this part. The Administrator may reasonably adjust the dates otherwise applicable under such requirements to such revision (except for attainment dates that have not yet elapsed), to the extent necessary to achieve a consistent application of such requirements. In order to facilitate submittal by the States Inter-governmental relations. Public information. of adequate and approvable plans consistent with the applicable requirements of this Act, the Administrator shall, as appropriate and from time to time, issue written guidelines, interpretations, and information to the States which shall be available to the public, taking into consideration any such guidelines, interpretations, or information provided before the date of the enactment of the Clean Air Act Amendments of 1990. “(e) Future Modification of Standard.— If the Administrator relaxes a national primary ambient air quality standard after the date of the enactment of the Clean Air Act Amendments of 1990, the Administrator shall, within 12 months after the relaxation, promulgate requirements applicable to all areas which have not attained that standard as of the date of such relaxation. Such requirements shall provide for controls which are not less stringent than the controls applicable to areas designated nonattainment before such relaxation.”.

5 of 5 references resolved to an enrolled provision