
From the U.S. Code Online via GPO Access
[wais.access.gpo.gov]
[Laws in effect as of January 23, 2000]
[Document not affected by Public Laws enacted between
  January 23, 2000 and December 4, 2001]
[CITE: 42USC7661a]

 
                 TITLE 42--THE PUBLIC HEALTH AND WELFARE
 
            CHAPTER 85--AIR POLLUTION PREVENTION AND CONTROL
 
                          SUBCHAPTER V--PERMITS
 
Sec. 7661a. Permit programs


(a) Violations

    After the effective date of any permit program approved or 
promulgated under this subchapter, it shall be unlawful for any person 
to violate any requirement of a permit issued under this subchapter, or 
to operate an affected source (as provided in subchapter IV-A of this 
chapter), a major source, any other source (including an area source) 
subject to standards or regulations under section 7411 or 7412 of this 
title, any other source required to have a permit under parts \1\ C or D 
of subchapter I of this chapter, or any other stationary source in a 
category designated (in whole or in part) by regulations promulgated by 
the Administrator (after notice and public comment) which shall include 
a finding setting forth the basis for such designation, except in 
compliance with a permit issued by a permitting authority under this 
subchapter. (Nothing in this subsection shall be construed to alter the 
applicable requirements of this chapter that a permit be obtained before 
construction or modification.) The Administrator may, in the 
Administrator's discretion and consistent with the applicable provisions 
of this chapter, promulgate regulations to exempt one or more source 
categories (in whole or in part) from the requirements of this 
subsection if the Administrator finds that compliance with such 
requirements is impracticable, infeasible, or unnecessarily burdensome 
on such categories, except that the Administrator may not exempt any 
major source from such requirements.
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    \1\ So in original. Probably should be ``part''.
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(b) Regulations

    The Administrator shall promulgate within 12 months after November 
15, 1990, regulations establishing the minimum elements of a permit 
program to be administered by any air pollution control agency. These 
elements shall include each of the following:
        (1) Requirements for permit applications, including a standard 
    application form and criteria for determining in a timely fashion 
    the completeness of applications.
        (2) Monitoring and reporting requirements.
        (3)(A) A requirement under State or local law or interstate 
    compact that the owner or operator of all sources subject to the 
    requirement to obtain a permit under this subchapter pay an annual 
    fee, or the equivalent over some other period, sufficient to cover 
    all reasonable (direct and indirect) costs required to develop and 
    administer the permit program requirements of this subchapter, 
    including section 7661f of this title, including the reasonable 
    costs of--
            (i) reviewing and acting upon any application for such a 
        permit,
            (ii) if the owner or operator receives a permit for such 
        source, whether before or after November 15, 1990, implementing 
        and enforcing the terms and conditions of any such permit (not 
        including any court costs or other costs associated with any 
        enforcement action),
            (iii) emissions and ambient monitoring,
            (iv) preparing generally applicable regulations, or 
        guidance,
            (v) modeling, analyses, and demonstrations, and
            (vi) preparing inventories and tracking emissions.

        (B) The total amount of fees collected by the permitting 
    authority shall conform to the following requirements:
            (i) The Administrator shall not approve a program as meeting 
        the requirements of this paragraph unless the State demonstrates 
        that, except as otherwise provided in subparagraphs (ii) through 
        (v) of this subparagraph, the program will result in the 
        collection, in the aggregate, from all sources subject to 
        subparagraph (A), of an amount not less than $25 per ton of each 
        regulated pollutant, or such other amount as the Administrator 
        may determine adequately reflects the reasonable costs of the 
        permit program.
            (ii) As used in this subparagraph, the term ``regulated 
        pollutant'' shall mean (I) a volatile organic compound; (II) 
        each pollutant regulated under section 7411 or 7412 of this 
        title; and (III) each pollutant for which a national primary 
        ambient air quality standard has been promulgated (except that 
        carbon monoxide shall be excluded from this reference).
            (iii) In determining the amount under clause (i), the 
        permitting authority is not required to include any amount of 
        regulated pollutant emitted by any source in excess of 4,000 
        tons per year of that regulated pollutant.
            (iv) The requirements of clause (i) shall not apply if the 
        permitting authority demonstrates that collecting an amount less 
        than the amount specified under clause (i) will meet the 
        requirements of subparagraph (A).
            (v) The fee calculated under clause (i) shall be increased 
        (consistent with the need to cover the reasonable costs 
        authorized by subparagraph (A)) in each year beginning after 
        1990, by the percentage, if any, by which the Consumer Price 
        Index for the most recent calendar year ending before the 
        beginning of such year exceeds the Consumer Price Index for the 
        calendar year 1989. For purposes of this clause--
                (I) the Consumer Price Index for any calendar year is 
            the average of the Consumer Price Index for all-urban 
            consumers published by the Department of Labor, as of the 
            close of the 12-month period ending on August 31 of each 
            calendar year, and
                (II) the revision of the Consumer Price Index which is 
            most consistent with the Consumer Price Index for calendar 
            year 1989 shall be used.

        (C)(i) If the Administrator determines, under subsection (d) of 
    this section, that the fee provisions of the operating permit 
    program do not meet the requirements of this paragraph, or if the 
    Administrator makes a determination, under subsection (i) of this 
    section, that the permitting authority is not adequately 
    administering or enforcing an approved fee program, the 
    Administrator may, in addition to taking any other action authorized 
    under this subchapter, collect reasonable fees from the sources 
    identified under subparagraph (A). Such fees shall be designed 
    solely to cover the Administrator's costs of administering the 
    provisions of the permit program promulgated by the Administrator.
        (ii) Any source that fails to pay fees lawfully imposed by the 
    Administrator under this subparagraph shall pay a penalty of 50 
    percent of the fee amount, plus interest on the fee amount computed 
    in accordance with section 6621(a)(2) of title 26 (relating to 
    computation of interest on underpayment of Federal taxes).
        (iii) Any fees, penalties, and interest collected under this 
    subparagraph shall be deposited in a special fund in the United 
    States Treasury for licensing and other services, which thereafter 
    shall be available for appropriation, to remain available until 
    expended, subject to appropriation, to carry out the Agency's 
    activities for which the fees were collected. Any fee required to be 
    collected by a State, local, or interstate agency under this 
    subsection shall be utilized solely to cover all reasonable (direct 
    and indirect) costs required to support the permit program as set 
    forth in subparagraph (A).
        (4) Requirements for adequate personnel and funding to 
    administer the program.
        (5) A requirement that the permitting authority have adequate 
    authority to:
            (A) issue permits and assure compliance by all sources 
        required to have a permit under this subchapter with each 
        applicable standard, regulation or requirement under this 
        chapter;
            (B) issue permits for a fixed term, not to exceed 5 years;
            (C) assure that upon issuance or renewal permits incorporate 
        emission limitations and other requirements in an applicable 
        implementation plan;
            (D) terminate, modify, or revoke and reissue permits for 
        cause;
            (E) enforce permits, permit fee requirements, and the 
        requirement to obtain a permit, including authority to recover 
        civil penalties in a maximum amount of not less than $10,000 per 
        day for each violation, and provide appropriate criminal 
        penalties; and
            (F) assure that no permit will be issued if the 
        Administrator objects to its issuance in a timely manner under 
        this subchapter.

        (6) Adequate, streamlined, and reasonable procedures for 
    expeditiously determining when applications are complete, for 
    processing such applications, for public notice, including offering 
    an opportunity for public comment and a hearing, and for expeditious 
    review of permit actions, including applications, renewals, or 
    revisions, and including an opportunity for judicial review in State 
    court of the final permit action by the applicant, any person who 
    participated in the public comment process, and any other person who 
    could obtain judicial review of that action under applicable law.
        (7) To ensure against unreasonable delay by the permitting 
    authority, adequate authority and procedures to provide that a 
    failure of such permitting authority to act on a permit application 
    or permit renewal application (in accordance with the time periods 
    specified in section 7661b of this title or, as appropriate, 
    subchapter IV-A of this chapter) shall be treated as a final permit 
    action solely for purposes of obtaining judicial review in State 
    court of an action brought by any person referred to in paragraph 
    (6) to require that action be taken by the permitting authority on 
    such application without additional delay.
        (8) Authority, and reasonable procedures consistent with the 
    need for expeditious action by the permitting authority on permit 
    applications and related matters, to make available to the public 
    any permit application, compliance plan, permit, and monitoring or 
    compliance report under section 7661b(e) of this title, subject to 
    the provisions of section 7414(c) of this title.
        (9) A requirement that the permitting authority, in the case of 
    permits with a term of 3 or more years for major sources, shall 
    require revisions to the permit to incorporate applicable standards 
    and regulations promulgated under this chapter after the issuance of 
    such permit. Such revisions shall occur as expeditiously as 
    practicable and consistent with the procedures established under 
    paragraph (6) but not later than 18 months after the promulgation of 
    such standards and regulations. No such revision shall be required 
    if the effective date of the standards or regulations is a date 
    after the expiration of the permit term. Such permit revision shall 
    be treated as a permit renewal if it complies with the requirements 
    of this subchapter regarding renewals.
        (10) Provisions to allow changes within a permitted facility (or 
    one operating pursuant to section 7661b(d) of this title) without 
    requiring a permit revision, if the changes are not modifications 
    under any provision of subchapter I of this chapter and the changes 
    do not exceed the emissions allowable under the permit (whether 
    expressed therein as a rate of emissions or in terms of total 
    emissions: \2\ Provided, That the facility provides the 
    Administrator and the permitting authority with written notification 
    in advance of the proposed changes which shall be a minimum of 7 
    days, unless the permitting authority provides in its regulations a 
    different timeframe for emergencies.
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    \2\ So in original. A closing parenthesis probably should precede 
the colon.
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(c) Single permit

    A single permit may be issued for a facility with multiple sources.

(d) Submission and approval

    (1) Not later than 3 years after November 15, 1990, the Governor of 
each State shall develop and submit to the Administrator a permit 
program under State or local law or under an interstate compact meeting 
the requirements of this subchapter. In addition, the Governor shall 
submit a legal opinion from the attorney general (or the attorney for 
those State air pollution control agencies that have independent legal 
counsel), or from the chief legal officer of an interstate agency, that 
the laws of the State, locality, or the interstate compact provide 
adequate authority to carry out the program. Not later than 1 year after 
receiving a program, and after notice and opportunity for public 
comment, the Administrator shall approve or disapprove such program, in 
whole or in part. The Administrator may approve a program to the extent 
that the program meets the requirements of this chapter, including the 
regulations issued under subsection (b) of this section. If the program 
is disapproved, in whole or in part, the Administrator shall notify the 
Governor of any revisions or modifications necessary to obtain approval. 
The Governor shall revise and resubmit the program for review under this 
section within 180 days after receiving notification.
    (2)(A) If the Governor does not submit a program as required under 
paragraph (1) or if the Administrator disapproves a program submitted by 
the Governor under paragraph (1), in whole or in part, the Administrator 
may, prior to the expiration of the 18-month period referred to in 
subparagraph (B), in the Administrator's discretion, apply any of the 
sanctions specified in section 7509(b) of this title.
    (B) If the Governor does not submit a program as required under 
paragraph (1), or if the Administrator disapproves any such program 
submitted by the Governor under paragraph (1), in whole or in part, 18 
months after the date required for such submittal or the date of such 
disapproval, as the case may be, the Administrator shall apply sanctions 
under section 7509(b) of this title in the same manner and subject to 
the same deadlines and other conditions as are applicable in the case of 
a determination, disapproval, or finding under section 7509(a) of this 
title.
    (C) The sanctions under section 7509(b)(2) of this title shall not 
apply pursuant to this paragraph in any area unless the failure to 
submit or the disapproval referred to in subparagraph (A) or (B) relates 
to an air pollutant for which such area has been designated a 
nonattainment area (as defined in part D of subchapter I of this 
chapter).
    (3) If a program meeting the requirements of this subchapter has not 
been approved in whole for any State, the Administrator shall, 2 years 
after the date required for submission of such a program under paragraph 
(1), promulgate, administer, and enforce a program under this subchapter 
for that State.

(e) Suspension

    The Administrator shall suspend the issuance of permits promptly 
upon publication of notice of approval of a permit program under this 
section, but may, in such notice, retain jurisdiction over permits that 
have been federally issued, but for which the administrative or judicial 
review process is not complete. The Administrator shall continue to 
administer and enforce federally issued permits under this subchapter 
until they are replaced by a permit issued by a permitting program. 
Nothing in this subsection should be construed to limit the 
Administrator's ability to enforce permits issued by a State.

(f) Prohibition

    No partial permit program shall be approved unless, at a minimum, it 
applies, and ensures compliance with, this subchapter and each of the 
following:
        (1) All requirements established under subchapter IV-A of this 
    chapter applicable to ``affected sources''.
        (2) All requirements established under section 7412 of this 
    title applicable to ``major sources'', ``area sources,'' and ``new 
    sources''.
        (3) All requirements of subchapter I of this chapter (other than 
    section 7412 of this title) applicable to sources required to have a 
    permit under this subchapter.

Approval of a partial program shall not relieve the State of its 
obligation to submit a complete program, nor from the application of any 
sanctions under this chapter for failure to submit an approvable permit 
program.

(g) Interim approval

    If a program (including a partial permit program) submitted under 
this subchapter substantially meets the requirements of this subchapter, 
but is not fully approvable, the Administrator may by rule grant the 
program interim approval. In the notice of final rulemaking, the 
Administrator shall specify the changes that must be made before the 
program can receive full approval. An interim approval under this 
subsection shall expire on a date set by the Administrator not later 
than 2 years after such approval, and may not be renewed. For the period 
of any such interim approval, the provisions of subsection (d)(2) of 
this section, and the obligation of the Administrator to promulgate a 
program under this subchapter for the State pursuant to subsection 
(d)(3) of this section, shall be suspended. Such provisions and such 
obligation of the Administrator shall apply after the expiration of such 
interim approval.

(h) Effective date

    The effective date of a permit program, or partial or interim 
program, approved under this subchapter, shall be the effective date of 
approval by the Administrator. The effective date of a permit program, 
or partial permit program, promulgated by the Administrator shall be the 
date of promulgation.

(i) Administration and enforcement

    (1) Whenever the Administrator makes a determination that a 
permitting authority is not adequately administering and enforcing a 
program, or portion thereof, in accordance with the requirements of this 
subchapter, the Administrator shall provide notice to the State and may, 
prior to the expiration of the 18-month period referred to in paragraph 
(2), in the Administrator's discretion, apply any of the sanctions 
specified in section 7509(b) of this title.
    (2) Whenever the Administrator makes a determination that a 
permitting authority is not adequately administering and enforcing a 
program, or portion thereof, in accordance with the requirements of this 
subchapter, 18 months after the date of the notice under paragraph (1), 
the Administrator shall apply the sanctions under section 7509(b) of 
this title in the same manner and subject to the same deadlines and 
other conditions as are applicable in the case of a determination, 
disapproval, or finding under section 7509(a) of this title.
    (3) The sanctions under section 7509(b)(2) of this title shall not 
apply pursuant to this subsection in any area unless the failure to 
adequately enforce and administer the program relates to an air 
pollutant for which such area has been designated a nonattainment area.
    (4) Whenever the Administrator has made a finding under paragraph 
(1) with respect to any State, unless the State has corrected such 
deficiency within 18 months after the date of such finding, the 
Administrator shall, 2 years after the date of such finding, promulgate, 
administer, and enforce a program under this subchapter for that State. 
Nothing in this paragraph shall be construed to affect the validity of a 
program which has been approved under this subchapter or the authority 
of any permitting authority acting under such program until such time as 
such program is promulgated by the Administrator under this paragraph.

(July 14, 1955, ch. 360, title V, Sec. 502, as added Pub. L. 101-549, 
title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2635.)

                  Section Referred to in Other Sections

    This section is referred to in sections 7413, 7511d, 7651g, 7651o, 
7661b, 7661c of this title.
