
From the U.S. Code Online via GPO Access
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[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC7419]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
            CHAPTER 85--AIR POLLUTION PREVENTION AND CONTROL
 
                  SUBCHAPTER I--PROGRAMS AND ACTIVITIES
 
              Part A--Air Quality and Emission Limitations
 
Sec. 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.
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    \1\ See References in Text note below.
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    (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.

(July 14, 1955, ch. 360, title I, Sec. 119, as added Pub. L. 95-95, 
title I, Sec. 117(b), Aug. 7, 1977, 91 Stat. 712; amended Pub. L. 95-
190, Sec. 14(a)(25)-(27), Nov. 16, 1977, 91 Stat. 1401.)

                       References in Text

    Section 7413(d) of this title, referred to in subsec. (a)(2)(A), was 
amended generally by Pub. L. 101-549, title VII, Sec. 701, Nov. 15, 
1990, 104 Stat. 2672, and, as so amended, no longer relates to final 
compliance orders.


                            Prior Provisions

    A prior section 119 of act July 14, 1955, ch. 360, title I, as added 
June 22, 1974, Pub. L. 93-319, Sec. 3, 88 Stat. 248, was classified to 
section 1857c-10 of this title and provided for the authority to deal 
with energy shortages, prior to repeal by Pub. L. 95-95, title I, 
Sec. 112(b)(1), Aug. 7, 1977, 91 Stat. 709, which provided that all 
references to such section 119 in any subsequent enactment which 
supersedes Pub. L. 93-319 shall be construed to refer to section 113(d) 
of the Clean Air Act and to paragraph (5) thereof in particular which is 
classified to section 7413(d)(5) of this title.


                               Amendments

    1977--Subsec. (a)(3). Pub. L. 95-190, Sec. 14(a)(25), added par. 
(3).
    Subsec. (d)(3). Pub. L. 95-190, Sec. 14(a)(26), substituted ``7621'' 
for ``7619''.
    Subsec. (e). Pub. L. 95-190, Sec. 14(a)(27), substituted ``an order 
under this section'' for ``such order''.


                             Effective Date

    Section effective Aug. 7, 1977, except as otherwise expressly 
provided, see section 406(d) of Pub. L. 95-95, set out as an Effective 
Date of 1977 Amendment note under section 7401 of this title.


       Modification or Rescission of Rules, Regulations, Orders, 
Determinations, Contracts, Certifications, Authorizations, Delegations, 
                            and Other Actions

    All rules, regulations, orders, determinations, contracts, 
certifications, authorizations, delegations, or other actions duly 
issued, made, or taken by or pursuant to act July 14, 1955, the Clean 
Air Act, as in effect immediately prior to the date of enactment of Pub. 
L. 95-95 [Aug. 7, 1977] to continue in full force and effect until 
modified or rescinded in accordance with act July 14, 1955, as amended 
by Pub. L. 95-95 [this chapter], see section 406(b) of Pub. L. 95-95, 
set out as an Effective Date of 1977 Amendment note under section 7401 
of this title.

                  Section Referred to in Other Sections

    This section is referred to in sections 7410, 7420, 7604, 7607, 7621 
of this title; title 15 sections 793, 798.
