
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: 42USC7420]

 
                 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. 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);
---------------------------------------------------------------------------
    \1\ See References in Text note below.
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        (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.

(July 14, 1955, ch. 360, title I, Sec. 120, as added Pub. L. 95-95, 
title I, Sec. 118, Aug. 7, 1977, 91 Stat. 714; amended Pub. L. 95-190, 
Sec. 14(a)(28)-(38), Nov. 16, 1977, 91 Stat. 1401; Pub. L. 101-549, 
title VII, Sec. 710(a), Nov. 15, 1990, 104 Stat. 2684.)

                       References in Text

    Section 7413(d) of this title, referred to in subsec. (a)(2)(B), 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.
    Section 1857c-10 of this title (as in effect before August 7, 1977), 
referred to in subsec. (a)(2)(B)(i), was in the original ``section 119 
(as in effect before the date of the enactment of the Clean Air Act 
Amendments of 1977)'', meaning 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, (which was classified to section 1857c-10 of this title) as in 
effect prior to the enactment of Pub. L. 95-95, Aug. 7, 1977, 91 Stat. 
691, effective Aug. 7, 1977. Section 112(b)(1) of Pub. L. 95-95 repealed 
section 119 of act July 14, 1955, ch. 360, title I, as added by Pub. L. 
93-319, and 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 subsec. (d)(5) of section 
7413 of this title. Section 7413(d) of this title was subsequently 
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. Section 117(b) of Pub. L. 95-95 added a new section 
119 of act July 14, 1955, which is classified to section 7419 of this 
title.
    Section 1857c-10(c)(1) of this title (as in effect before August 7, 
1977), referred to in subsec. (a)(2)(B)(ii), was in the original 
``section 119(c)(1) (as in effect before the date of the enactment of 
the Clean Air Act Amendments of 1977).'' See paragraph set out above for 
explanation of codification.


                               Amendments

    1990--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).
    1977--Subsec. (a)(2)(A). Pub. L. 95-190, Sec. 14(a)(28), (29), in 
cls. (i) and (iii) inserted provisions relating to consent decrees 
wherever appearing.
    Subsec. (a)(2)(B). Pub. L. 95-190, Sec. 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.
    Subsec. (b). Pub. L. 95-190, Sec. 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''.
    Subsec. (b)(2)(A). Pub. L. 95-190, Sec. 14(a)(33), substituted 
``(a)(1)(B)(i)'' for ``(e)''.
    Subsec. (b)(8). Pub. L. 95-190, Sec. 14(a)(32), substituted ``(4)'' 
for ``(6)''.
    Subsec. (d)(2)(A). Pub. L. 95-190, Sec. 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,''.
    Subsec. (e). Pub. L. 95-190, Sec. 14(a)(38), substituted 
``subsection, shall'' for ``subsection shall''.


                             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.

                  Section Referred to in Other Sections

    This section is referred to in sections 7412, 7413, 7419, 7425, 
7429, 7607, 7627, 7651j of this title.
