42 U.S.C. § 300j — Assurances of availability of adequate supplies of chemicals necessary for treatment of water

(a) Certification of need application If a person who uses chemicals like chlorine, activated carbon, lime, ammonia, soda ash, potassium permanganate, or caustic soda to treat water in a public water system or public treatment works can't reasonably get enough of that chemical - now or when they'll need it - they can apply to the Administrator for a "certification of need." This certification states that the person truly cannot get enough of the chemical to treat the water properly, now or when needed. (b) Application requirements; publication in Federal Register; waiver; certification, issuance or denial The application must be in whatever form and manner the Administrator requires. It must (A) name who the applicant believes could supply the chemical, (B) name who the applicant has already asked, and (C) include any other information the Administrator wants. After receiving the application, the Administrator must (A) publish a notice and brief summary of it in the Federal Register, (B) notify in writing anyone the President (or the President's delegate, after consulting the Administrator) decides might later be ordered to supply the chemical, and (C) let the public submit written comments. The Administrator can skip these three steps only if there is "good cause" to protect public health - and must explain that finding, with a brief statement of reasons, in the order itself. Within 30 days after (A) the Federal Register notice is published, or (B) the application is received if no notice was published because of the waiver, the Administrator must either grant or deny the certification of need. (c) Certification of need; issuance; executive orders; implementation of orders; equitable apportionment of orders; factors considered If the Administrator finds the applicant truly can't get enough of the chemical to treat water effectively, the Administrator issues the certification of need. Within seven days after that, the President (or delegate) must issue an order requiring the delivery of whatever amount of the chemical the Administrator's certification says is needed. The order can bind manufacturers, producers, processors, distributors, and repackagers of the chemical that the President (or delegate) considers necessary and appropriate - but it may never apply to a company that manufactures, produces, or processes the chemical solely for its own use. Anyone subject to the order gets a reasonable chance to consult with the President (or delegate) about how the order will be carried out. Orders issued to manufacturers, producers, and processors of a chemical must be spread out fairly, as far as practical, among all manufacturers, producers, and processors of that chemical. The same rule applies separately to distributors and repackagers. For chlorine specifically, when apportioning orders the President (or delegate) must consider: (A) the geographic and existing commercial relationships between the suppliers and the people the orders are issued for; (B) for chlorine producers, how much chlorine each has historically supplied to treat water in public water systems and treatment works, and each producer's share of total U.S. chlorine production; and (C) any other factor the President (or delegate) decides is relevant to fair apportionment. Subject to the one-year limit in subsection (f), once an order issued under paragraph (1) expires, the person who held the certification may apply under this section for additional certifications. (d) Breach of contracts; defense If someone is sued in federal or state court for breach of contract because they delayed or failed to provide, sell, or offer to sell or exchange a chemical subject to an order issued under subsection (c)(1), they have a defense: that the delay or failure was caused solely by complying with that order. (e) Penalties for noncompliance with orders; temporary restraining orders and preliminary or permanent injunctions (1) Anyone who knowingly fails to comply with an order issued under subsection (c)(1) can be fined up to $5,000 for each failure to comply. (2) Anyone who fails to comply with such an order - even without acting knowingly - is subject to a civil penalty of up to $2,500 for each failure to comply. (3) Whenever the Administrator, or the President or delegate, has reason to believe someone is violating or about to violate an order issued under subsection (c)(1), they may ask a United States district court for a temporary restraining order, or a preliminary or permanent injunction (including a mandatory injunction), to enforce the order. (f) Termination date No certification of need, and no order issued under this section because of one, may stay in effect for more than one year.