Document VGzB9vMrqj76Bn9D4BqNr27K

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY REGION 2 290 BROADWAY NEW YORK, NY 10007-1866 December 17, 2024 Via Electronic Mail - Craig.Hurteau@albanycountyny.gov Albany County Water Purification District Attn: Craig A. Hurteau, Permit Compliance Manager 112 State Street, Basement Albany, New York 12207 Re: Information Request: EPA Docket, CAA-02-2025-1408 Mr. Hurteau: The Clean Air Act, 42 U.S.C. 7401 et seq. ("CAA" or the "Act"), at Section 114, 42 U.S.C. 7414, authorizes the U.S. Environmental Protection Agency ("EPA") to require submittal of information to, among other things, assess compliance with the Act and regulations promulgated pursuant to the Act. This Information Request requires the Albany County Water Purification District ("ACWPD") to submit information regarding the operation and compliance of its sewage sludge incineration facilities located at 1 Canal Road South, Menands, NY 12204 and 209 Church Street, Albany, NY 12202. Pursuant to Section 114 of the Act, this Information Request requires ACWPD to submit all of the information requested in Enclosure 1, Part III. Failure to submit the requested information is a violation of Section 114 of the Act, and may result in an order to comply, an order for administrative penalties, or a civil action for penalties and an injunction requiring compliance pursuant to EPA's enforcement authority provided in Section 113(a) of the Act. See Enclosure 2. In accordance with Section 113(c)(2)(A) of the Act, any person who knowingly makes any false statement, representation, or certification, or who omits material information from or knowingly alters, conceals, or fails to file a response to this Information Request, may be subject to a criminal action. See 42 U.S.C. 7413(c)(2)(A). You may choose to assert a business confidentiality claim covering all or part of the information submitted. You may not, however, withhold any information on that basis. For EPA to consider a claim of business confidentiality for one or more of the documents submitted by you, a cover sheet, stamped or typed legend, or other suitable form of notice must be placed on or enclosed with the document, with language such as "trade secret," "proprietary," or "company confidential." Allegedly confidential portions of otherwise non-confidential documents should be clearly identified. To facilitate identification and handling by EPA, please submit your response so that all non-confidential information, including any redacted versions of documents, are in one file and all materials that you assert are entitled to confidential treatment are in a separate file. Note that "emission data," as defined in 40 C.F.R. 2.301(a)(2), cannot be claimed as confidential under Section 114(c) of the Act. See 42 U.S.C. 7414(c). If no confidentiality claim accompanies the information received by EPA, the information submitted as part of your response may be made available to the public without further notice to you. EPA will disclose information covered by a confidentiality claim only to the extent allowed by, and in accordance with, the procedures set forth in EPA's public information regulations at 40 C.F.R. 2.201, et seq. (See 41 Fed. Reg. 36902 (Sept. 1, 1976)), and with applicable case law. In order to comply fully with this Information Request, your response must include a completed Certification of Response (see Attachment to Enclosure 1), notarized by a notary public, and signed by you or another officer of your company. Your responses to the questions in Enclosure 1, Part III, including all supporting documents and the Certification of Response, must be submitted by electronic mail to Mr. Robert Buettner of the EPA, in accordance with the schedule set forth in Enclosure 1, at his email address below: Mr. Robert Buettner, Manager Enforcement and Compliance Assurance Division (ECAD) Air Compliance Branch U.S. Environmental Protection Agency, Region 2 Buettner.Robert@epa.gov The requested information shall be submitted to EPA no later than thirty (30) calendar days after receipt of this request. You may request an extension of any timeline to respond by sending an electronic mail to Mr. Buettner at his email address above. Please include the reason(s) for the delay in responding and a proposed response date. In order to allow sufficient time for review, any such request for an extension of time must be made at least ten (10) calendar days prior to the date on which the requested information is due to EPA. An extension of time will be effective only if granted by EPA in writing. Please include the above-cited Reference No. CAA-02-2025-1408 in any and all of your response(s) to this Information Request. Further, if within one year of the date of this Information Request, you obtain information different from, or in addition to, the information provided, or if there is any change affecting the information submitted, you must notify EPA and submit the relevant information no later than twenty (20) calendar days after such information becomes available. Please note, EPA will share the information submitted by ACWPD with the New York State Department of Environmental Conservation, Region 4, and the Office of the New York State Attorney General as part of our coordinated effort to address compliance at ACWPD's incineration facilities. You may address any questions concerning this matter to Mr. Joseph Cardile Cardile.Joseph@epa.gov or Mr. Phil Ritz Ritz.Philip@epa.gov in the EPA Region 2 Air Compliance Branch, or to Travis Tarpeh, Assistant Regional Counsel, at Tarpeh.Jaryeneh@epa.gov or by phone at 212-637-3270. We appreciate and look forward to your prompt response. Sincerely, KATHLEEN KATHLEEN ANDERSON Digitally signed by ANDERSON 16:12:04 -05'00' Date: 2024.12.17 Kathleen Anderson, Director Enforcement and Compliance Assurance Division U.S. Environmental Protection Agency, Region 2 Enclosures cc: Michael Cronin, Director, Bureau of Stationary Sources, Division of Air Resources, NYSDEC Michael.Cronin@dec.ny.gov ENCLOSURE 1 REPORTING REQUIREMENT PURSUANT TO SECTION 114 OF THE CLEAN AIR ACT The U.S. Environmental Protection Agency ("EPA") requires the submittal of information regarding operations and compliance of Albany County Water Purification District's facilities located at 1 Canal Road South, Menands, NY 12204 and 209 Church Street, Albany, NY 12202. Part I: Instructions 1. Provide all responsive documents in Portable Document Format ("PDF") or similar format, unless otherwise requested in specific questions. If the PDFs are scanned images, perform at least Optical Character Recognition for "image over text" to allow the document to be searchable. Submitters providing secured PDFs should also provide unsecured versions for EPA use in repurposing text. 2. When specific questions request data in electronic spreadsheet form, provide the data and corresponding information in editable Excel format, and not in image format. If Excel formats are not available, then the format should allow for data to be used in calculations by a standard spreadsheet program such as Excel. 3. All documents requested must be submitted electronically. 4. Provide a table of contents for your submission so that each document can be accurately identified in relation to your response to a specific question. We recommend the use of electronic file folders organized by question number and facility name. 5. Emission data obtained through Section 114 of the CAA is not considered confidential business information ("CBI"), pursuant to 42 U.S.C. 7414(c) and 40 C.F.R. 2.301(a)(2)(i). Any information claimed as CBI must be submitted on separate disks/drives apart from the non-confidential information. This will facilitate appropriate records management and appropriate handling and protection of the CBI. 6. Certify that the attached files have been scanned for viruses and indicate what program was used. 7. If you have no information or documents responsive to a request, please so state in your response. 8. Where documents or information necessary for a response are neither in your possession nor available to you, indicate in your response why such documents or information are not available or in your possession and identify any source that either possesses or is likely to possess such information. 9. To the extent that a document is responsive to more than one request, please so state and provide only one copy of the document. 10. All terms used in this information request have their ordinary meaning, unless such terms are defined in the CAA, 42 U.S.C. 7401, et seq. Part II: Definitions All terms used in this Information Request will have their ordinary meaning unless such terms are defined in the Act, 42 U.S.C. 7401, et seq., or are defined in the applicable regulations implementing the Act, including any state regulations that are federally enforceable under the Act, in which case the statutory or regulatory definitions shall apply. Specific terms are defined as follows: 1. The terms "document" and "documents" shall mean any object that records, stores, or presents information, and includes writings, memoranda, records, or information of any kind, formal or informal, whether wholly or partially handwritten or typed, whether in computer format, memory, or storage device, or in hardcopy, including any form or format of these. 2. The term "North Facility" means the Albany County Water Purification District facility located at 1 Canal Road South, Menands, NY 12204. 3. The term "South Facility" means the Albany County Water Purification District facility located at 209 Church Street, Albany, NY 12202. 4. The term "Facilities" means the Albany County Water Purification District's North Facility and South Facility. 5. The term "Sewage Sludge Incineration ("SSI") Units" means the Facilities' incineration units combusting sewage sludge for the purpose of reducing the volume of the sewage sludge by removing combustible matter. Sewage sludge incineration unit designs include fluidized bed and multiple hearth incinerators ("MHI"). An SSI unit also includes, but is not limited to, the sewage sludge feed system, auxiliary fuel feed system, grate system, flue gas system, waste heat recovery equipment, if any, and bottom ash system. The SSI unit includes all ash handling systems connected to the bottom ash handling system. The combustion unit bottom ash system ends at the truck loading station or similar equipment that transfers the ash to final disposal. The SSI unit does not include air pollution control equipment or the stack. For purposes of this Information Request, both of the North Facility's 10-hearth MHIs, and both of the South Facility's 7-hearth MHIs are expressly recognized as SSI Units. 6. The term "person" shall include any individual, firm, unincorporated association, partnership, corporation, trust, sole proprietorship association, State, municipality, political subdivision of a State, and any agency, department, or instrumentality of the United States and any officer, agent, or employee thereof, or other entity. 7. The term "identify" means to provide the person's full name, address, and affiliation with the individual and/or Company to whom this request is addressed. 8. The term "you" shall include any officers, managers, employees, contractors, trustees, successors, assignees, and agents with knowledge of your Facilities. 9. The terms "relate to" and/or "pertain to" (or any form thereof) shall mean constituting, reflecting, representing, supporting, contradicting, referring to, stating, describing, recording, noting, embodying, containing, mentioning, studying, analyzing, discussing, evaluating or relevant to. Part III: Specific Information Requested The information requested in Sections I and II pertains to the costs associated with building and installing the Facilities' existing SSI Units, and any physical or operational changes to the Facilities' existing SSI Units that have been made or that are currently planned to be made. Section III requests information in connection with the capital project proposed in your "MMMM Applicability Determination" letter, dated June 17, 2024. Section IV requests information in connection with the most recent consolidation scenario proposed by ACWPD pursuant to the New York State Department of Environmental Conservation Order on Consent (No. R4-2017-0426-210, as revised in July 2018) and subsequent Capital Improvement Plan Engineering Report and Sludge Processing Improvements Study. For each request in Sections I though IV, please also provide copies of any and all documents, records, and other information relied on to formulate ACWPD's response. Finally, the information requested in Sections I through IV must be provided to EPA no later than thirty (30) calendar days after receipt of this request. Section I Please provide the original cost of building and installing the North Facility's SSI Units (not including the cost of land) updated to current costs (current dollars). Please also provide a list of each physical or operational change to the North Facility SSI Units since initial installation and operation of the North Facility's SSI Units, and the cumulative cost of such physical and operational changes, including such changes that ACWPD may claim to be routine maintenance, repair, and replacement. As stated in 40 C.F.R. 60.14(e)(1), the EPA, Administrator is responsible for making determinations regarding claims of this type. For each enumerated physical or operational change, please additionally provide the following: a. Beginning date and duration of change. b. Cost of implementing the change, and date of final payment. c. If the change resulted in an increase of any amount of any air pollutant emitted for which Section 129 or Section 111 of the Clean Air Act has established standards, please specify the quantity of each pollutant emitted as a result of the change. For each enumerated change, please also indicate whether such change was made primarily to comply with the state plan of the State of New York. Section II South Facility: Please provide the original cost of building and installing the South Facility's SSI Units (not including the cost of land) updated to current costs (current dollars). Please also provide a list of each physical or operational change to the South Facility SSI Units since initial installation and operation of the South Facility's SSI Units, and the cumulative cost of such physical and operational changes, including such changes that ACWPD may claim to be routine maintenance, repair, and replacement. As stated in 40 C.F.R. 60.14(e)(1), the EPA Administrator is responsible for making determinations regarding claims of this type. For each enumerated physical or operational change, please additionally provide the following: a. Beginning date and duration of change. b. Cost of implementing the change, and date of final payment. c. If the change resulted in an increase of any amount of any air pollutant emitted for which Section 129 or Section 111 of the Clean Air Act has established standards, please specify the quantity of each pollutant emitted as a result of the change. For each enumerated change, please also indicate whether such change was made primarily to comply with the state plan of the State of New York. Section III Please provide the following regarding the capital project proposed in your "MMMM Applicability Determination" letter, dated June 17, 2024: a. When is construction intended to commence, and when is the estimated completion date? b. List the physical or operational changes expected as part of the proposed capital project as well as associated costs and whether the enumerated changes will result in an increase of any amount of any air pollutants emitted for which Section 129 and/or Section 111 of the Clean Air Act has established standards. c. For each physical or operational change enumerated in response to question b. of this section, please indicate whether such change will be made primarily to comply with Subpart MMMM. d. For each physical or operational change enumerated in response to question b. of this section, please indicate whether such change will be made primarily to comply with the state plan of the State of New York. Section IV Please provide the following information regarding the most recent consolidation scenario proposed by ACWPD pursuant to the New York State Department of Environmental Conservation Order on Consent (No. R4-2017-0426-210, as revised in July 2018) and subsequent Capital Improvement Plan Engineering Report and Sludge Processing Improvements Study. a. When is construction expected to commence, and when is the estimated completion date? b. List the physical or operational changes expected as part of the consolidation scenario as well as associated costs and whether the enumerated changes will result in an increase of any amount of any air pollutants emitted for which Section 129 and/or Section 111 of the Clean Air Act has established standards. c. For each physical or operational change enumerated in response to question b. of this section, please indicate whether ACWPD intends that any of these enumerated changes will be made primarily to comply with Subpart MMMM. d. For each physical or operational change enumerated in response to question b. of this section, please indicate whether such change will be made primarily to comply with the state plan of the State of New York. ATTACHMENT 1 TO ENCLOSURE 1 CERTIFICATION OF RESPONSE State/Territory of : County of : I certify, under penalty of law, that I have personally examined and am familiar with the information submitted in response to the Information Request and all documents submitted with this response, and that based on my inquiry of those individuals immediately responsible for obtaining the information, I believe that the submitted information is true, accurate, and complete, and that all documents submitted with this response are complete and authentic unless otherwise indicated. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment. I am also aware that for one year from the date of the Information Request, I am under an obligation to supplement my response to the Information Request if any additional information relevant to the matters should become known or available to me. NAME (print or type) TITLE (print or type) Sworn to before me this day of SIGNATURE , 2025 Notary Public ENCLOSURE 2 Page 5741 TITLE 42--THE PUBLIC HEALTH AND WELFARE 7413 shall be submitted to the President and to the Congress not later than 48 months after such date of enactment. In the report, the Commission shall make recommendations with respect to the appropriate use of risk assessment and risk management in Federal regulatory programs to prevent cancer or other chronic health effects which may result from exposure to hazardous substances. The Commission shall cease to exist upon the date determined by the Commission, but not later than 9 months after the submission of such report. ``(g) AUTHORIZATION.--There are authorized to be appropriated such sums as are necessary to carry out the activities of the Commission established by this section.'' [References in laws to the rates of pay for GS-16, 17, or 18, or to maximum rates of pay under the General Schedule, to be considered references to rates payable under specified sections of Title 5, Government Organization and Employees, see section 529 [title I, 101(c)(1)] of Pub. L. 101-509, set out in a note under section 5376 of Title 5.] 7413. Federal enforcement (a) In general (1) Order to comply with SIP Whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated or is in violation of any requirement or prohibition of an applicable implementation plan or permit, the Administrator shall notify the person and the State in which the plan applies of such finding. At any time after the expiration of 30 days following the date on which such notice of a violation is issued, the Administrator may, without regard to the period of violation (subject to section 2462 of title 28)-- (A) issue an order requiring such person to comply with the requirements or prohibitions of such plan or permit, (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action in accordance with subsection (b) of this section. (2) State failure to enforce SIP or permit program Whenever, on the basis of information available to the Administrator, the Administrator finds that violations of an applicable implementation plan or an approved permit program under subchapter V of this chapter are so widespread that such violations appear to result from a failure of the State in which the plan or permit program applies to enforce the plan or permit program effectively, the Administrator shall so notify the State. In the case of a permit program, the notice shall be made in accordance with subchapter V of this chapter. If the Administrator finds such failure extends beyond the 30th day after such notice (90 days in the case of such permit program), the Administrator shall give public notice of such finding. During the period beginning with such public notice and ending when such State satisfies the Administrator that it will enforce such plan or permit program (hereafter referred to in this section as ``period of federally assumed enforcement''), the Administrator may enforce any requirement or prohibition of such plan or permit program with respect to any person by-- (A) issuing an order requiring such person to comply with such requirement or prohibition, (B) issuing an administrative penalty order in accordance with subsection (d) of this section, or (C) bringing a civil action in accordance with subsection (b) of this section. (3) EPA enforcement of other requirements Except for a requirement or prohibition enforceable under the preceding provisions of this subsection, whenever, on the basis of any information available to the Administrator, the Administrator finds that any person has violated, or is in violation of, any other requirement or prohibition of this subchapter, section 7603 of this title, subchapter IV-A, subchapter V, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, plan, order, waiver, or permit promulgated, issued, or approved under those provisions or subchapters, or for the payment of any fee owed to the United States under this chapter (other than subchapter II of this chapter), the Administrator may-- (A) issue an administrative penalty order in accordance with subsection (d) of this section, (B) issue an order requiring such person to comply with such requirement or prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section 7605 of this title, or (D) request the Attorney General to commence a criminal action in accordance with subsection (c) of this section. (4) Requirements for orders An order issued under this subsection (other than an order relating to a violation of section 7412 of this title) shall not take effect until the person to whom it is issued has had an opportunity to confer with the Administrator concerning the alleged violation. A copy of any order issued under this subsection shall be sent to the State air pollution control agency of any State in which the violation occurs. Any order issued under this subsection shall state with reasonable specificity the nature of the violation and specify a time for compliance which the Administrator determines is reasonable, taking into account the seriousness of the violation and any good faith efforts to comply with applicable requirements. In any case in which an order under this sub- section (or notice to a violator under para- graph (1)) is issued to a corporation, a copy of such order (or notice) shall be issued to appropriate corporate officers. An order issued under this subsection shall require the person to whom it was issued to comply with the requirement as expeditiously as practicable, but in no event longer than one year after the date the order was issued, and shall be nonrenewable. No order issued under this subsection shall prevent the State or the Administrator from assessing any penalties nor otherwise affect or limit the State's or the United States authority to enforce under other provisions of this chapter, nor affect any person's obliga  7413 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 5742 tions to comply with any section of this chapter or with a term or condition of any permit or applicable implementation plan promulgated or approved under this chapter. (5) Failure to comply with new source requirements Whenever, on the basis of any available information, the Administrator finds that a State is not acting in compliance with any requirement or prohibition of the chapter relating to the construction of new sources or the modification of existing sources, the Administrator may-- (A) issue an order prohibiting the construction or modification of any major stationary source in any area to which such requirement applies; 1 (B) issue an administrative penalty order in accordance with subsection (d) of this section, or (C) bring a civil action under subsection (b) of this section. Nothing in this subsection shall preclude the United States from commencing a criminal action under subsection (c) of this section at any time for any such violation. (b) Civil judicial enforcement The Administrator shall, as appropriate, in the case of any person that is the owner or operator of an affected source, a major emitting facility, or a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day for each violation, or both, in any of the following instances: (1) Whenever such person has violated, or is in violation of, any requirement or prohibition of an applicable implementation plan or permit. Such an action shall be commenced (A) during any period of federally assumed enforcement, or (B) more than 30 days following the date of the Administrator's notification under subsection (a)(1) of this section that such person has violated, or is in violation of, such requirement or prohibition. (2) Whenever such person has violated, or is in violation of, any other requirement or prohibition of this subchapter, section 7603 of this title, subchapter IV-A, subchapter V, or subchapter VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, order, waiver or permit promulgated, issued, or approved under this chapter, or for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter). (3) Whenever such person attempts to construct or modify a major stationary source in any area with respect to which a finding under subsection (a)(5) of this section has been made. Any action under this subsection may be brought in the district court of the United States for the district in which the violation is alleged to have occurred, or is occurring, or in which the defendant resides, or where the defendant's principal place of business is located, 1 So in original. The semicolon probably should be a comma. and such court shall have jurisdiction to restrain such violation, to require compliance, to assess such civil penalty, to collect any fees owed the United States under this chapter (other than subchapter II of this chapter) and any noncompliance assessment and nonpayment penalty owed under section 7420 of this title, and to award any other appropriate relief. Notice of the commencement of such action shall be given to the appropriate State air pollution control agency. In the case of any action brought by the Administrator under this subsection, the court may award costs of litigation (including reasonable attorney and expert witness fees) to the party or parties against whom such action was brought if the court finds that such action was unreasonable. (c) Criminal penalties (1) Any person who knowingly violates any requirement or prohibition of an applicable implementation plan (during any period of federally assumed enforcement or more than 30 days after having been notified under subsection (a)(1) of this section by the Administrator that such per- son is violating such requirement or prohibition), any order under subsection (a) of this section, requirement or prohibition of section 7411(e) of this title (relating to new source performance standards), section 7412 of this title, section 7414 of this title (relating to inspections, etc.), section 7429 of this title (relating to solid waste combustion), section 7475(a) of this title (relating to preconstruction requirements), an order under section 7477 of this title (relating to preconstruction requirements), an order under section 7603 of this title (relating to emergency orders), section 7661a(a) or 7661b(c) of this title (relating to permits), or any requirement or prohibition of subchapter IV-A of this chapter (relating to acid deposition control), or subchapter VI of this chapter (relating to stratospheric ozone control), including a requirement of any rule, order, waiver, or permit promulgated or approved under such sections or subchapters, and including any requirement for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter) shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not to exceed 5 years, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such per- son under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (2) Any person who knowingly-- (A) makes any false material statement, rep- resentation, or certification in, or omits material information from, or knowingly alters, conceals, or fails to file or maintain any no- tice, application, record, report, plan, or other document required pursuant to this chapter to be either filed or maintained (whether with respect to the requirements imposed by the Administrator or by a State); (B) fails to notify or report as required under this chapter; or (C) falsifies, tampers with, renders inaccurate, or fails to install any monitoring de- Page 5743 TITLE 42--THE PUBLIC HEALTH AND WELFARE 7413 vice or method required to be maintained or followed under this chapter 2 shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not more than 2 years, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (3) Any person who knowingly fails to pay any fee owed the United States under this subchapter, subchapter III, IV-A, V, or VI of this chapter shall, upon conviction, be punished by a fine pursuant to title 18 or by imprisonment for not more than 1 year, or both. If a conviction of any person under this paragraph is for a violation committed after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (4) Any person who negligently releases into the ambient air any hazardous air pollutant list- ed pursuant to section 7412 of this title or any extremely hazardous substance listed pursuant to section 11002(a)(2) of this title that is not list- ed in section 7412 of this title, and who at the time negligently places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under title 18 or by imprisonment for not more than 1 year, or both. If a conviction of any per- son under this paragraph is for a violation com- mitted after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. (5)(A) Any person who knowingly releases into the ambient air any hazardous air pollutant list- ed pursuant to section 7412 of this title or any extremely hazardous substance listed pursuant to section 11002(a)(2) of this title that is not list- ed in section 7412 of this title, and who knows at the time that he thereby places another person in imminent danger of death or serious bodily injury shall, upon conviction, be punished by a fine under title 18 or by imprisonment of not more than 15 years, or both. Any person com- mitting such violation which is an organization shall, upon conviction under this paragraph, be subject to a fine of not more than $1,000,000 for each violation. If a conviction of any person under this paragraph is for a violation commit- ted after a first conviction of such person under this paragraph, the maximum punishment shall be doubled with respect to both the fine and imprisonment. For any air pollutant for which the Administrator has set an emissions standard or for any source for which a permit has been issued under subchapter V of this chapter, a re- lease of such pollutant in accordance with that standard or permit shall not constitute a violation of this paragraph or paragraph (4). (B) In determining whether a defendant who is an individual knew that the violation placed another person in imminent danger of death or serious bodily injury-- (i) the defendant is responsible only for actual awareness or actual belief possessed; and 2 So in original. Probably should be followed by a comma. (ii) knowledge possessed by a person other than the defendant, but not by the defendant, may not be attributed to the defendant; except that in proving a defendant's possession of actual knowledge, circumstantial evidence may be used, including evidence that the defend- ant took affirmative steps to be shielded from relevant information. (C) It is an affirmative defense to a prosecution that the conduct charged was freely consented to by the person endangered and that the danger and conduct charged were reasonably foreseeable hazards of-- (i) an occupation, a business, or a profession; or (ii) medical treatment or medical or scientific experimentation conducted by professionally approved methods and such other person had been made aware of the risks involved prior to giving consent. The defendant may establish an affirmative defense under this subparagraph by a preponderance of the evidence. (D) All general defenses, affirmative defenses, and bars to prosecution that may apply with respect to other Federal criminal offenses may apply under subparagraph (A) of this paragraph and shall be determined by the courts of the United States according to the principles of common law as they may be interpreted in the light of reason and experience. Concepts of justification and excuse applicable under this section may be developed in the light of reason and experience. (E) The term ``organization'' means a legal entity, other than a government, established or organized for any purpose, and such term includes a corporation, company, association, firm, partnership, joint stock company, foundation, institution, trust, society, union, or any other association of persons. (F) The term ``serious bodily injury'' means bodily injury which involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement or protracted loss or impairment of the function of a bodily member, organ, or mental faculty. (6) For the purpose of this subsection, the term ``person'' includes, in addition to the entities referred to in section 7602(e) of this title, any responsible corporate officer. (d) Administrative assessment of civil penalties (1) The Administrator may issue an ad ministrative order against any person assessing a civil administrative penalty of up to $25,000, per day of violation, whenever, on the basis of any available information, the Administrator finds that such person-- (A) has violated or is violating any requirement or prohibition of an applicable implementation plan (such order shall be issued (i) during any period of federally assumed enforcement, or (ii) more than thirty days following the date of the Administrator's notification under subsection (a)(1) of this section of a finding that such person has violated or is violating such requirement or prohibition); or (B) has violated or is violating any other requirement or prohibition of this subchapter or  7413 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 5744 subchapter III, IV-A, V, or VI of this chapter, including, but not limited to, a requirement or prohibition of any rule, order, waiver, permit, or plan promulgated, issued, or approved under this chapter, or for the payment of any fee owed the United States under this chapter (other than subchapter II of this chapter); or (C) attempts to construct or modify a major stationary source in any area with respect to which a finding under subsection (a)(5) of this section has been made. The Administrator's authority under this paragraph shall be limited to matters where the total penalty sought does not exceed $200,000 and the first alleged date of violation occurred no more than 12 months prior to the initiation of the administrative action, except where the Administrator and the Attorney General jointly determine that a matter involving a larger penalty amount or longer period of violation is ap- propriate for administrative penalty action. Any such determination by the Administrator and the Attorney General shall not be subject to judicial review. (2)(A) An administrative penalty assessed under paragraph (1) shall be assessed by the Administrator by an order made after opportunity for a hearing on the record in accordance with sections 554 and 556 of title 5. The Administrator shall issue reasonable rules for discovery and other procedures for hearings under this paragraph. Before issuing such an order, the Administrator shall give written notice to the person to be assessed an administrative penalty of the Administrator's proposal to issue such order and provide such person an opportunity to request such a hearing on the order, within 30 days of the date the notice is received by such person. (B) The Administrator may compromise, modify, or remit, with or without conditions, any administrative penalty which may be imposed under this subsection. (3) The Administrator may implement, after consultation with the Attorney General and the States, a field citation program through regulations establishing appropriate minor violations for which field citations assessing civil penalties not to exceed $5,000 per day of violation may be issued by officers or employees designated by the Administrator. Any person to whom a field citation is assessed may, within a reasonable time as prescribed by the Administrator through regulation, elect to pay the penalty assessment or to request a hearing on the field citation. If a request for a hearing is not made within the time specified in the regulation, the penalty assessment in the field citation shall be final. Such hearing shall not be subject to section 554 or 556 of title 5, but shall provide a rea- sonable opportunity to be heard and to present evidence. Payment of a civil penalty required by a field citation shall not be a defense to further enforcement by the United States or a State to correct a violation, or to assess the statutory maximum penalty pursuant to other authorities in the chapter, if the violation continues. (4) Any person against whom a civil penalty is assessed under paragraph (3) of this subsection or to whom an administrative penalty order is issued under paragraph (1) of this subsection may seek review of such assessment in the United States District Court for the District of Columbia or for the district in which the violation is alleged to have occurred, in which such person resides, or where such person's principal place of business is located, by filing in such court within 30 days following the date the administrative penalty order becomes final under paragraph (2), the assessment becomes final under paragraph (3), or a final decision following a hearing under paragraph (3) is rendered, and by simultaneously sending a copy of the filing by certified mail to the Administrator and the Attorney General. Within 30 days thereafter, the Administrator shall file in such court a certified copy, or certified index, as appropriate, of the record on which the administrative penalty order or assessment was issued. Such court shall not set aside or remand such order or assessment unless there is not substantial evidence in the record, taken as a whole, to support the finding of a violation or unless the order or penalty assessment constitutes an abuse of discretion. Such order or penalty assessment shall not be subject to review by any court except as provided in this paragraph. In any such proceedings, the United States may seek to recover civil penalties ordered or assessed under this section. (5) If any person fails to pay an assessment of a civil penalty or fails to comply with an administrative penalty order-- (A) after the order or assessment has become final, or (B) after a court in an action brought under paragraph (4) has entered a final judgment in favor of the Administrator, the Administrator shall request the Attorney General to bring a civil action in an appropriate district court to enforce the order or to recover the amount ordered or assessed (plus interest at rates established pursuant to section 6621(a)(2) of title 26 from the date of the final order or decision or the date of the final judgment, as the case may be). In such an action, the validity, amount, and appropriateness of such order or assessment shall not be subject to review. Any person who fails to pay on a timely basis a civil penalty ordered or assessed under this section shall be required to pay, in addition to such penalty and interest, the United States enforcement expenses, including but not limited to attorneys fees and costs incurred by the United States for collection proceedings and a quarterly nonpayment penalty for each quarter during which such failure to pay persists. Such nonpayment penalty shall be 10 percent of the aggregate amount of such person's outstanding penalties and nonpayment penalties accrued as of the beginning of such quarter. (e) Penalty assessment criteria (1) In determining the amount of any penalty to be assessed under this section or section 7604(a) of this title, the Administrator or the court, as appropriate, shall take into consideration (in addition to such other factors as jus- tice may require) the size of the business, the economic impact of the penalty on the business, the violator's full compliance history and good faith efforts to comply, the duration of the violation as established by any credible evidence Page 5745 TITLE 42--THE PUBLIC HEALTH AND WELFARE 7413 (including evidence other than the applicable test method), payment by the violator of penalties previously assessed for the same viola- tion, the economic benefit of noncompliance, and the seriousness of the violation. The court shall not assess penalties for noncompliance with administrative subpoenas under section 7607(a) of this title, or actions under section 7414 of this title, where the violator had sufficient cause to violate or fail or refuse to comply with such subpoena or action. (2) A penalty may be assessed for each day of violation. For purposes of determining the number of days of violation for which a penalty may be assessed under subsection (b) or (d)(1) of this section, or section 7604(a) of this title, or an assessment may be made under section 7420 of this title, where the Administrator or an air pollution control agency has notified the source of the violation, and the plaintiff makes a prima facie showing that the conduct or events giving rise to the violation are likely to have continued or recurred past the date of notice, the days of violation shall be presumed to include the date of such notice and each and every day thereafter until the violator establishes that continuous compliance has been achieved, except to the extent that the violator can prove by a preponderance of the evidence that there were intervening days during which no violation occurred or that the violation was not continuing in nature. (f) Awards The Administrator may pay an award, not to exceed $10,000, to any person who furnishes information or services which lead to a criminal conviction or a judicial or administrative civil penalty for any violation of this subchapter or subchapter III, IV-A, V, or VI of this chapter enforced under this section. Such payment is subject to available appropriations for such purposes as provided in annual appropriation Acts. Any officer,3 or employee of the United States or any State or local government who furnishes information or renders service in the performance of an official duty is ineligible for payment under this subsection. The Administrator may, by regulation, prescribe additional criteria for eligibility for such an award. (g) Settlements; public participation At least 30 days before a consent order or settlement agreement of any kind under this chapter to which the United States is a party (other than enforcement actions under this section, section 7420 of this title, or subchapter II of this chapter, whether or not involving civil or criminal penalties, or judgments subject to Department of Justice policy on public participation) is final or filed with a court, the Administrator shall provide a reasonable opportunity by notice in the Federal Register to persons who are not named as parties or intervenors to the action or matter to comment in writing. The Administrator or the Attorney General, as appropriate, shall promptly consider any such written comments and may withdraw or withhold his consent to the proposed order or agreement if the comments disclose facts or considerations which 3 So in original. The comma probably should not appear. indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of this chapter. Nothing in this subsection shall apply to civil or criminal penalties under this chapter. (h) Operator For purposes of the provisions of this section and section 7420 of this title, the term ``operator'', as used in such provisions, shall include any person who is senior management personnel or a corporate officer. Except in the case of knowing and willful violations, such term shall not include any person who is a stationary engineer or technician responsible for the operation, maintenance, repair, or monitoring of equipment and facilities and who often has supervisory and training duties but who is not senior management personnel or a corporate officer. Except in the case of knowing and willful violations, for purposes of subsection (c)(4) of this section, the term ``a person'' shall not include an employee who is carrying out his normal activities and who is not a part of senior management personnel or a corporate officer. Except in the case of knowing and willful violations, for purposes of paragraphs (1), (2), (3), and (5) of subsection (c) of this section the term ``a person'' shall not include an employee who is carrying out his normal activities and who is acting under orders from the employer. (July 14, 1955, ch. 360, title I, 113, as added Pub. L. 91-604, 4(a), Dec. 31, 1970, 84 Stat. 1686; amended Pub. L. 92-157, title III, 302(b), (c), Nov. 18, 1971, 85 Stat. 464; Pub. L. 93-319, 6(a)(1)-(3), June 22, 1974, 88 Stat. 259; Pub. L. 95-95, title I, 111, 112(a), Aug. 7, 1977, 91 Stat. 704, 705; Pub. L. 95-190, 14(a)(10)-(21), (b)(1), Nov. 16, 1977, 91 Stat. 1400, 1404; Pub. L. 97-23, 2, July 17, 1981, 95 Stat. 139; Pub. L. 101-549, title VII, 701, Nov. 15, 1990, 104 Stat. 2672.) CODIFICATION Section was formerly classified to section 1857c-8 of this title. AMENDMENTS 1990--Pub. L. 101-549 amended section generally, substituting present provisions for provisions which related to: in subsec. (a), finding of violation, notice, compliance order, civil action, State failure to enforce plan, and construction or modification of major stationary sources; in subsec. (b), violations by owners or operators of major stationary sources; in subsec. (c), penalties; in subsec. (d), final compliance orders; and in subsec. (e), steel industry compliance extension. 1981--Subsec. (e). Pub. L. 97-23 added subsec. (e). 1977--Subsec. (a)(5). Pub. L. 95-95, 111(a), added par. (5). Subsec. (b). Pub. L. 95-95, 111(b), (c), substituted ``shall, in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, commence a civil action for a permanent or temporary injunction, or to assess and recover a civil penalty of not more than $25,000 per day of violation, or both, whenever such person'' for ``may commence a civil action for appropriate relief, including a permanent or temporary injunction, whenever any person'' in provisions preceding par. (1), inserted references to subsec. (d)(5) of this section, sections 7419 and 7620 of this title, and regulations under part in par. (3), inserted reference to subsec. (d) of this section in par. (4), added par. (5), and, in provisions following par. (5), authorized the commencement of civil actions to  7414 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 5746 recover noncompliance penalties and nonpayment penalties under section 7420 of this title, expanded jurisdictional provisions to authorize actions in districts in which the violation occurred and to authorize the district court to restrain violations, to require compliance, to assess civil penalties, and to collect penalties under section 7420 of this title, enumerated factors to be taken into consideration in determining the amount of civil penalties, and authorized awarding of costs to the party or parties against whom the action was brought in cases where the court finds that the action was unreasonable. Subsec. (b)(3). Pub. L. 95-190, 14(a)(10), (11), inserted ``or'' after ``ozone);'', and substituted ``7624'' for ``7620'', ``conversion), section'' for ``conversion) section'', and ``orders), or'' for ``orders) or''. Subsec. (c)(1). Pub. L. 95-95, 111(d)(1), (2), substituted ``any order issued under section 7419 of this title or under subsection (a) or (d) of this section'' for ``any order issued by the Administrator under subsection (a) of this section'' in subpar. (B), struck out reference to section 119(g) (as in effect before the date of the enactment of Pub. L. 95-95) in subpar. (C), and added subpar. (D). Subsec. (c)(1)(B). Pub. L. 95-190, 14(a)(12), inserted ``or'' after ``section,''. Subsec. (c)(1)(D). Pub. L. 95-190, 14(a)(13), substituted ``1977 subsection'' for ``1977) subsection'' and ``penalties), or'' for ``penalties) or''. Subsec. (c)(3). Pub. L. 95-95, 111(d)(3), added par. (3). Subsec. (d). Pub. L. 95-95, 112(a), added subsec. (d). Subsec. (d)(1). Pub. L. 95-190, 14(a)(14), substituted ``to any stationary source which is unable to comply with any requirement of an applicable implementation plan an order'' for ``an order for any stationary source'' and ``such requirement'' for ``any requirement of an applicable implementation plan''. Subsec. (d)(1)(E). Pub. L. 95-190, 14(a)(15), inserted provision relating to exemption under section 7420(a)(2)(B) or (C) of this title, provision relating to noncompliance penalties effective July 1, 1979, and reference to subsec. (b)(3) or (g) of section 7420 of this title. Subsec. (d)(2). Pub. L. 95-190, 14(a)(16), inserted provisions relating to determinations by the Administrator of compliance with requirements of this chapter of State orders issued under this subsection. Subsec. (d)(4)(A). Pub. L. 95-190, 14(a)(17), substituted ``title) upon'' for ``title upon''. Subsec. (d)(5)(A). Pub. L. 95-190, 14(a)(18), substituted ``an additional period for'' for ``an additional period of''. Subsec. (d)(8). Pub. L. 95-190, 14(a)(19), struck out reference to par. (3) of this subsection. Subsec. (d)(10). Pub. L. 95-190, 14(a)(20), substituted ``in effect'' for ``issued'', ``Federal'' for ``other'', and ``and no action under'' for ``or''. Subsec. (d)(11). Pub. L. 95-190, 14(a)(21), substituted ``and in effect'' for ``(and approved by the Administrator)''. 1974--Subsec. (a)(3). Pub. L. 93-319, 6(a)(1), inserted reference to section 1857c-10(g) of this title (relating to energy-related authorities). Subsecs. (b)(3), (c)(1)(C). Pub. L. 93-319, 6(a)(2), (3), inserted reference to section 1857c-10(g) of this title. 1971--Subsec. (b)(2). Pub. L. 92-157, 302(b), inserted ``(A)'' before ``during'' and ``, or (B)'' after ``assumed enforcement''. Subsec. (c)(1)(A). Pub. L. 92-157, 302(c), inserted ``(i)'' before ``during'' and ``, or (ii)'' after ``assumed enforcement''. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95-95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95-95, see section 406(a) 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. TRANSFER OF FUNCTIONS Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of this title. 7414. Recordkeeping, inspections, monitoring, and entry (a) Authority of Administrator or authorized representative For the purpose (i) of developing or assisting in the development of any implementation plan under section 7410 or section 7411(d) of this title, any standard of performance under section 7411 of this title, any emission standard under section 7412 of this title,,1 or any regulation of solid waste combustion under section 7429 of this title, or any regulation under section 7429 of this title (relating to solid waste combustion), (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (iii) carrying out any provision of this chapter (except a provision of subchapter II of this chapter with respect to a manufacturer of new motor vehicles or new motor vehicle engines)-- (1) the Administrator may require any person who owns or operates any emission source, who manufactures emission control equipment or process equipment, who the Administrator believes may have information necessary for the purposes set forth in this subsection, or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title with respect to a provision of subchapter II of this chapter) on a one-time, periodic or continuous basis to-- (A) establish and maintain such records; (B) make such reports; (C) install, use, and maintain such monitoring equipment, and use such audit procedures, or methods; (D) sample such emissions (in accordance with such procedures or methods, at such lo- Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other 1 So in original.  7414 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 6272 Subsec. (d)(4)(A). Pub. L. 95-190, 14(a)(17), substituted ``title) upon'' for ``title upon''. Subsec. (d)(5)(A). Pub. L. 95-190, 14(a)(18), substituted ``an additional period for'' for ``an additional period of''. Subsec. (d)(8). Pub. L. 95-190, 14(a)(19), struck out reference to par. (3) of this subsection. Subsec. (d)(10). Pub. L. 95-190, 14(a)(20), substituted ``in effect'' for ``issued'', ``Federal'' for ``other'', and ``and no action under'' for ``or''. Subsec. (d)(11). Pub. L. 95-190, 14(a)(21), substituted ``and in effect'' for ``(and approved by the Administrator)''. 1974--Subsec. (a)(3). Pub. L. 93-319, 6(a)(1), inserted reference to section 1857c-10(g) of this title (relating to energy-related authorities). Subsecs. (b)(3), (c)(1)(C). Pub. L. 93-319, 6(a)(2), (3), inserted reference to section 1857c-10(g) of this title. 1971--Subsec. (b)(2). Pub. L. 92-157, 302(b), inserted ``(A)'' before ``during'' and ``, or (B)'' after ``assumed enforcement''. Subsec. (c)(1)(A). Pub. L. 92-157, 302(c), inserted ``(i)'' before ``during'' and ``, or (ii)'' after ``assumed enforcement''. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95-95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95-95, see section 406(a) 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. TRANSFER OF FUNCTIONS Federal Power Commission terminated and its functions, personnel, property, funds, etc., transferred to Secretary of Energy (except for certain functions transferred to Federal Energy Regulatory Commission) by sections 7151(b), 7171(a), 7172(a), 7291, and 7293 of this title. 7414. Recordkeeping, inspections, monitoring, and entry (a) Authority of Administrator or authorized representative For the purpose (i) of developing or assisting in the development of any implementation plan under section 7410 or section 7411(d) of this title, any standard of performance under section 7411 of this title, any emission standard under section 7412 of this title,,1 or any regulation of solid 1 So in original. waste combustion under section 7429 of this title, or any regulation under section 7429 of this title (relating to solid waste combustion), (ii) of determining whether any person is in violation of any such standard or any requirement of such a plan, or (iii) carrying out any provision of this chapter (except a provision of subchapter II of this chapter with respect to a manufacturer of new motor vehicles or new motor vehicle engines)-- (1) the Administrator may require any person who owns or operates any emission source, who manufactures emission control equipment or process equipment, who the Administrator believes may have information necessary for the purposes set forth in this subsection, or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title with respect to a provision of subchapter II of this chapter) on a one-time, periodic or continuous basis to-- (A) establish and maintain such records; (B) make such reports; (C) install, use, and maintain such monitoring equipment, and use such audit procedures, or methods; (D) sample such emissions (in accordance with such procedures or methods, at such locations, at such intervals, during such periods and in such manner as the Administrator shall prescribe); (E) keep records on control equipment parameters, production variables or other indirect data when direct monitoring of emissions is impractical; (F) submit compliance certifications in accordance with subsection (a)(3) of this section; and (G) provide such other information as the Administrator may reasonably require; and 2 (2) the Administrator or his authorized representative, upon presentation of his credentials-- (A) shall have a right of entry to, upon, or through any premises of such person or in which any records required to be maintained under paragraph (1) of this section are located, and (B) may at reasonable times have access to and copy any records, inspect any monitoring equipment or method required under paragraph (1), and sample any emissions which such person is required to sample under paragraph (1).3 (3) The 4 Administrator shall in the case of any person which is the owner or operator of a major stationary source, and may, in the case of any other person, require enhanced monitoring and submission of compliance certifications. Compliance certifications shall include (A) identification of the applicable requirement that is the basis of the certification, (B) the method used for determining the compliance status of the source, (C) the compliance status, (D) whether compliance is 2 So in original. The ``and'' probably should not appear. 3 The period probably should be ``; and''. 4 So in original. Probably should not be capitalized. Page 6273 TITLE 42--THE PUBLIC HEALTH AND WELFARE 7414 continuous or intermittent, (E) such other facts as the Administrator may require. Compliance certifications and monitoring data shall be subject to subsection (c) of this section. Submission of a compliance certification shall in no way limit the Administrator's authorities to investigate or otherwise implement this chapter. The Administrator shall promulgate rules to provide guidance and to implement this paragraph within 2 years after November 15, 1990. (b) State enforcement (1) Each State may develop and submit to the Administrator a procedure for carrying out this section in such State. If the Administrator finds the State procedure is adequate, he may delegate to such State any authority he has to carry out this section. (2) Nothing in this subsection shall prohibit the Administrator from carrying out this section in a State. (c) Availability of records, reports, and information to public; disclosure of trade secrets Any records, reports or information obtained under subsection (a) of this section shall be available to the public, except that upon a showing satisfactory to the Administrator by any person that records, reports, or information, or particular part thereof, (other than emission data) to which the Administrator has access under this section if made public, would divulge methods or processes entitled to protection as trade secrets of such person, the Administrator shall consider such record, report, or information or particular portion thereof confidential in accordance with the purposes of section 1905 of title 18, except that such record, report, or information may be disclosed to other officers, employees, or authorized representatives of the United States concerned with carrying out this chapter or when relevant in any proceeding under this chapter. (d) Notice of proposed entry, inspection, or monitoring (1) In the case of any emission standard or limitation or other requirement which is adopted by a State, as part of an applicable implementation plan or as part of an order under section 7413(d) 5 of this title, before carrying out an entry, inspection, or monitoring under paragraph (2) of subsection (a) of this section with respect to such standard, limitation, or other requirement, the Administrator (or his representatives) shall provide the State air pollution control agency with reasonable prior notice of such action, indicating the purpose of such action. No State agency which receives notice under this paragraph of an action proposed to be taken may use the information contained in the notice to inform the person whose property is proposed to be affected of the proposed action. If the Administrator has reasonable basis for believing that a State agency is so using or will so use such information, notice to the agency under this paragraph is not required until such time as the Administrator determines the agency will no longer so use information contained in a no- 5 See References in Text note below. tice under this paragraph. Nothing in this section shall be construed to require notification to any State agency of any action taken by the Administrator with respect to any standard, limitation, or other requirement which is not part of an applicable implementation plan or which was promulgated by the Administrator under section 7410(c) of this title. (2) Nothing in paragraph (1) shall be construed to provide that any failure of the Administrator to comply with the requirements of such paragraph shall be a defense in any enforcement action brought by the Administrator or shall make inadmissible as evidence in any such action any information or material obtained notwithstanding such failure to comply with such requirements. (July 14, 1955, ch. 360, title I, 114, as added Pub. L. 91-604, 4(a), Dec. 31, 1970, 84 Stat. 1687; amended Pub. L. 93-319, 6(a)(4), June 22, 1974, 88 Stat. 259; Pub. L. 95-95, title I, 109(d)(3), 113, title III, 305(d), Aug. 7, 1977, 91 Stat. 701, 709, 776; Pub. L. 95-190, 14(a)(22), (23), Nov. 16, 1977, 91 Stat. 1400; Pub. L. 101-549, title III, 302(c), title VII, 702(a), (b), Nov. 15, 1990, 104 Stat. 2574, 2680, 2681.) REFERENCES IN TEXT Section 7413(d) of this title, referred to in subsec. (d)(1), was amended generally by Pub. L. 101-549, title VII, 701, Nov. 15, 1990, 104 Stat. 2672, and, as so amended, no longer relates to final compliance orders. CODIFICATION Section was formerly classified to section 1857c-9 of this title. AMENDMENTS 1990--Subsec. (a). Pub. L. 101-549, 702(a)(1), which directed that ``or'' be struck out in first sentence immediately before ``any emission standard under section 7412 of this title,'' could not be executed because of the prior amendment by Pub. L. 101-549, 302(c), see below. Pub. L. 101-549, 702(a)(2), inserted ``or any regulation under section 7429 of this title (relating to solid waste combustion),'' before ``(ii) of determining''. Pub. L. 101-549, 302(c), struck out ``or'' after ``performance under section 7411 of this title,'' and inserted ``, or any regulation of solid waste combustion under section 7429 of this title,'' after ``standard under section 7412 of this title''. Subsec. (a)(1). Pub. L. 101-549, 702(a)(3), amended par. (1) generally. Prior to amendment, par. (1) read as follows: ``the Administrator may require any person who owns or operates any emission source or who is subject to any requirement of this chapter (other than a manufacturer subject to the provisions of section 7525(c) or 7542 of this title) with respect to a provision of subchapter II of this chapter to (A) establish and maintain such records, (B) make such reports, (C) install, use, and maintain such monitoring equipment or methods, (D) sample such emissions (in accordance with such methods, at such locations, at such intervals, and in such manner as the Administrator shall prescribe), and (E) provide such other information as he may reasonably require; and''. Subsec. (a)(3). Pub. L. 101-549, 702(b), added par. (3). 1977--Subsec. (a). Pub. L. 95-190, 14(a)(22), inserted reference to subchapter II of this chapter and ``new'' before ``motor'' in two places. Pub. L. 95-95, 305(d), substituted ``carrying out any provision of this chapter (except with respect to a manufacturer of motor vehicles or motor vehicle engines)'' for ``carrying out sections 119 or 303'' in cl. (iii) preced- ing par. (1), substituted ``any person subject to any re-  7415 TITLE 42--THE PUBLIC HEALTH AND WELFARE Page 6274 quirement of this chapter (other than a manufacturer subject to the provisions of sections 7525(c) or 7542 of this title)'' for ``the owner or operator of any emission source'' in par. (1), substituted ``any premises of such person'' for ``any premises in which an emission source is located'' in subpar. (A) of par. (2), and substituted ``emissions which such person is required to sample'' for ``emissions which the owner or operator of such source is required to sample'' in subpar. (B) of subpar. (2). Subsec. (a)(1). Pub. L. 95-190, 14(a)(23), inserted reference to subchapter II of this chapter and ``who owns or operates any emission source or who is'' after ``any person''. Subsec. (b)(1). Pub. L. 95-95, 109(d)(3), struck out ``(except with respect to new sources owned or operated by the United States)'' after ``to carry out this sec- tion''. Subsec. (d). Pub. L. 95-95, 113, added subsec. (d). 1974--Subsec. (a). Pub. L. 93-319 inserted reference to section 119. EFFECTIVE DATE OF 1977 AMENDMENT Amendment by Pub. L. 95-95 effective Aug. 7, 1977, except as otherwise expressly provided, see section 406(d) of Pub. L. 95-95, set out as a note under section 7401 of this title. PENDING ACTIONS AND PROCEEDINGS Suits, actions, and other proceedings lawfully commenced by or against the Administrator or any other officer or employee of the United States in his official capacity or in relation to the discharge of his official duties under act July 14, 1955, the Clean Air Act, as in effect immediately prior to the enactment of Pub. L. 95-95 [Aug. 7, 1977], not to abate by reason of the taking effect of Pub. L. 95-95, see section 406(a) 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 pursu- ant 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. 7415. International air pollution (a) Endangerment of public health or welfare in foreign countries from pollution emitted in United States Whenever the Administrator, upon receipt of reports, surveys or studies from any duly constituted international agency has reason to believe that any air pollutant or pollutants emitted in the United States cause or contribute to air pollution which may reasonably be antici- pated to endanger public health or welfare in a foreign country or whenever the Secretary of State requests him to do so with respect to such pollution which the Secretary of State alleges is of such a nature, the Administrator shall give formal notification thereof to the Governor of the State in which such emissions originate. (b) Prevention or elimination of endangerment The notice of the Administrator shall be deemed to be a finding under section 7410(a)(2)(H)(ii) of this title which requires a plan revision with respect to so much of the applicable implementation plan as is inadequate to prevent or eliminate the endangerment re- ferred to in subsection (a) of this section. Any foreign country so affected by such emission of pollutant or pollutants shall be invited to ap- pear at any public hearing associated with any revision of the appropriate portion of the appli- cable implementation plan. (c) Reciprocity This section shall apply only to a foreign country which the Administrator determines has given the United States essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country by this section. (d) Recommendations Recommendations issued following any abatement conference conducted prior to August 7, 1977, shall remain in effect with respect to any pollutant for which no national ambient air quality standard has been established under section 7409 of this title unless the Administrator, after consultation with all agencies which were party to the conference, rescinds any such recommendation on grounds of obsolescence. (July 14, 1955, ch. 360, title I, 115, formerly 5, as added Pub. L. 88-206, 1, Dec. 17, 1963, 77 Stat. 396; renumbered 105 and amended Pub. L. 89- 272, title I, 101(2), (3), 102, Oct. 20, 1965, 79 Stat. 992, 995, renumbered 108 and amended Pub. L. 90-148, 2, Nov. 21, 1967, 81 Stat. 491, renumbered 115 and amended Pub. L. 91-604, 4(a), (b)(2)-(10), 15(c)(2), Dec. 31, 1970, 84 Stat. 1678, 1688, 1689, 1713; Pub. L. 95-95, title I, 114, Aug. 7, 1977, 91 Stat. 710.) CODIFICATION Section was formerly classified to section 1857d of this title. AMENDMENTS 1977--Pub. L. 95-95 completely revised section by substituting provisions establishing a mechanism for the Administrator to trigger a revision of a State implementation plan under section 7410(a)(2)(H) upon a petition of an international agency or the Secretary of State if he finds that emissions originating in a State endanger the health or welfare of persons in a foreign country for provisions calling for the abatement of air pollution by means of conference procedures. 1970--Subsec. (a). Pub. L. 91-604, 4(b)(2), inserted ``and which is covered by subsection (b) or (c) of this section'' after ``persons''. Subsec. (b). Pub. L. 91-604, 4(b)(3), (4), (5), 15(c)(2), redesignated former subsec. (d)(1)(A), (B), and (C) as (b)(1), (2), and (3), substituted ``Administrator'' for ``Secretary'' wherever appearing, and added subsec. (b)(4). Former subsec. (b), which related to the encouragement of municipal, State, and interstate action to abate air pollution, was struck out. Subsec. (c). Pub. L. 91-604, 4(b)(3), (6), 15(c)(2), redesignated former subsec. (d)(1)(D) as (c) and substituted ``Administrator'' for ``Secretary'' and ``Secretary of Health, Education, and Welfare'' wherever appearing and ``subsection'' for ``subparagraph'' wherever appearing. Former subsec. (c), which related to the procedure for the promulgation of State air quality standards, was struck out. Subsec. (d). Pub. L. 91-604, 4(b)(4), (6), (7), (8), 15(c)(2), redesignated former subsec. (d)(2) and (3) as (d)(1) and (2), in (d)(1) substituted ``Administrator'' for