42 U.S.C. § 7411 — Standards of performance for new stationary sources

(a) Definitions. For this section:

(1) “Standard of performance” means a limit on air-pollutant emissions. The limit must reflect what can be achieved by applying the best system of emission reduction that the Administrator^* has adequately demonstrated. In choosing that system, the Administrator must consider the cost of achieving the reduction, effects on health and the environment other than air quality, and energy needs. This section does not otherwise define “best system of emission reduction” or “adequately demonstrated.”

(2) “New source” means a stationary source whose construction or modification begins after regulations—or, if earlier, proposed regulations—are published that set a performance standard applying to that source.

(3) “Stationary source” means a building, structure, facility, or installation that emits or may emit an air pollutant^*. The provisions of subchapter II of this chapter about nonroad engines do not apply to stationary internal-combustion engines.

(4) “Modification” means a physical change in a stationary source, or a change in how it operates, that increases the amount of an air pollutant it emits or causes it to emit an air pollutant it did not previously emit.

(5) “Owner^* or operator” means any person^* who owns, leases, operates, controls, or supervises a stationary source.

(6) “Existing source” means any stationary source that is not a new source.

(7) “Technological system of continuous emission reduction” means either:
(A) a production or operating process that is inherently low-polluting or nonpolluting; or
(B) a technological system that continuously reduces pollution produced by a source before the pollution enters the surrounding air. This includes cleaning or treating fuel before combustion.

(8) A conversion to coal is not a “modification” for paragraphs (2) and (4) if:
(A) it results from an order under section 2(a) of the Energy Supply and Environmental Coordination Act of 1974, or an amendment or later law that replaces that Act; or
(B) it qualifies under section 7413(d)(5)(A)(ii) of this title.

(b) List of categories of stationary sources; standards of performance; information on pollution-control techniques; sources owned or operated by the United States; particular systems; revised standards.

(1)(A) Within 90 days after December 31, 1970, the Administrator must publish a list of categories of stationary sources and must revise the list from time to time. The Administrator must include a category if, in the Administrator’s judgment, it causes or significantly contributes to air pollution that may reasonably be expected to endanger public health or welfare.

(B) Within one year after a category is put on that list, the Administrator must publish proposed regulations setting Federal performance standards for new sources in the category. Interested people must have an opportunity to submit written comments. After considering the comments, the Administrator must issue the standards, with any changes the Administrator considers appropriate, within one year after publishing the proposal. At least every 8 years, the Administrator must review each standard and revise it if appropriate, using this subsection’s procedure. The Administrator does not have to review a standard if the Administrator decides that review is not appropriate because readily available information shows the standard’s effectiveness. A standard or revision takes effect when it is issued. If implementing and enforcing this chapter shows that sources in practice achieve emission limits or percentage reductions beyond those required by a standard, the Administrator must consider those results when revising the standard.

(2) The Administrator may set different standards for different classes, types, and sizes of new sources within a category.

(3) From time to time, the Administrator must issue information about pollution-control techniques for categories of new sources and air pollutants covered by this section.

(4) This section applies to every new source owned or operated by the United States.

(5) Except as subsection (h) otherwise allows, this section does not require, and does not authorize the Administrator to require, a new or modified source to install or operate a particular technological system of continuous emission reduction to meet a new-source performance standard.

(6) The revised standards required by subsection (a)(1)(A)(i) and (ii) must be issued no later than one year after August 7, 1977. A new or modified fossil-fuel-fired stationary source that begins construction before the proposed revised standards are published does not have to comply with those revised standards.

(c) State^* implementation and enforcement of standards of performance.

(1) A State may develop and submit to the Administrator a procedure for implementing and enforcing performance standards for new sources in that State. If the Administrator finds the procedure adequate, the Administrator must delegate to the State the authority under this chapter to implement and enforce those standards.

(2) This subsection does not prevent the Administrator from enforcing any applicable performance standard under this section.

(d) Standards of performance for existing sources; remaining useful life of a source.

(1) The Administrator must issue regulations establishing a procedure similar to the procedure in section 7410. Under that procedure, each State must submit a plan to the Administrator that:
(A) sets performance standards for each existing source for an air pollutant if the pollutant has no issued air-quality criteria, is not on a list published under section 7408(a), or is emitted by a source category regulated under section 7412, and a performance standard under this section would apply if the existing source were new; and
(B) provides for implementing and enforcing those standards.
The regulations must allow a State, when applying a standard to a particular source under its plan, to consider factors including the source’s remaining useful life.

(2) The Administrator has the same authority:
(A) to prescribe a plan for a State that fails to submit a satisfactory plan as the Administrator would have under section 7410(c) when a State fails to submit an implementation plan; and
(B) to enforce the plan when the State fails to enforce it as the Administrator would have under sections 7413 and 7414 for an implementation plan.
When issuing a performance standard under a plan prescribed under this paragraph, the Administrator must consider factors including the remaining useful lives of sources in the affected source category.

(e) Prohibited acts. After a performance standard issued under this section takes effect, an owner or operator may not operate a new source in violation of a performance standard that applies to it.

(f) New-source performance standards.

(1) For each category of major stationary sources that the Administrator listed under subsection (b)(1)(A) before November 15, 1990, but for which the Administrator had not proposed regulations by that date, the Administrator must:
(A) propose standards for at least 25 percent of the categories within 2 years after November 15, 1990;
(B) propose standards for at least 50 percent of the categories within 4 years after that date; and
(C) propose standards for the remaining categories within 6 years after that date.

(2) When setting priorities for issuing standards under paragraph (1), the Administrator must consider:
(A) the amount of air pollutants each category emits or is designed to emit;
(B) how much each pollutant may reasonably be expected to endanger public health or welfare; and
(C) the category’s mobility and competitive nature, and the resulting need for nationally applicable new-source standards.

(3) Before issuing regulations under this subsection or listing a category as required by this subsection, the Administrator must consult appropriate representatives of Governors and State air-pollution-control agencies.

(g) Revision of regulations.

(1) If a State Governor applies and shows that the Administrator failed to specify in regulations under subsection (f)(1) a category that had to be specified, the Administrator must revise the regulations to specify it.

(2) If a Governor applies and shows that a category not included on the subsection (b)(1)(A) list significantly contributes to air pollution that may reasonably be expected to endanger public health or welfare, the Administrator must revise the regulations to specify that category. This applies even if the category is not a category of major stationary sources.

(3) If a Governor applies and shows that the Administrator did not properly apply the criteria in subsection (f)(2), the Administrator must revise the list under subsection (b)(1)(A) so those criteria are properly applied.

(4) If a Governor applies and shows that:
(A) a new, innovative, or improved technology or process that achieves greater continuous emission reduction has been adequately demonstrated for a source category; and
(B) because of that technology or process, the category’s current standard no longer reflects the greatest emission limit achievable through the best adequately demonstrated technological system of continuous emission reduction, considering the cost of achieving the reduction, non-air-quality health and environmental effects, and energy needs,
the Administrator must revise the category’s standard accordingly.

(5) Unless this section sets a later deadline, within 3 months after receiving a Governor’s application the Administrator must either:
(A) find that the application does not make the required showing and deny it; or
(B) grant it and take the action required by this subsection.

(6) Before taking action required by subsection (f) or this subsection, the Administrator must give notice and an opportunity for a public hearing.

(h) Design, equipment, work-practice, or operating standard; alternative emission limit.

(1) If the Administrator decides that it is not feasible to prescribe or enforce a performance standard, the Administrator may instead issue a design, equipment, work-practice, or operating standard, or a combination of these. The standard must reflect the best adequately demonstrated technological system of continuous emission reduction, considering the cost of achieving the reduction, non-air-quality health and environmental effects, and energy needs. If the Administrator issues a design or equipment standard, it must include requirements that ensure proper operation and maintenance of the design or equipment.

(2) “Not feasible to prescribe or enforce a standard of performance” means a situation in which the Administrator decides either that:
(A) a pollutant cannot be emitted through a passage designed and built to emit or capture it, or that requiring or using such a passage would conflict with Federal, State, or local law; or
(B) applying a measurement method to a particular class of sources is not practical because of technological or economic limits.

(3) After notice and an opportunity for a public hearing, if a person convinces the Administrator that an alternative way to limit emissions will reduce an air pollutant at least as much as the requirements of paragraph (1), the Administrator must allow the source to use that alternative to comply with this section for that pollutant.

(4) A standard issued under paragraph (1) must be issued as a performance standard once it becomes feasible to issue and enforce it in that form.

(5) A design, equipment, work-practice, or operating standard described here, alone or combined with others, is treated as a performance standard for this chapter, except for subsection (a) and this subsection.

(i) Country elevators. Regulations under this section that apply to grain elevators do not apply to country elevators, as the Administrator defines that term, with storage capacity under 2,500,000 bushels.

(j) Innovative technological systems of continuous emission reduction.

(1)(A) A person proposing to own or operate a new source may ask the Administrator for one or more waivers from this section for the source or part of it, for an air pollutant, to encourage an innovative technological system or systems of continuous emission reduction. With the consent of the Governor of the State where the source will be located, the Administrator may grant a waiver after notice and a public-hearing opportunity if the Administrator determines that:
(i) the proposed system or systems have not been adequately demonstrated;
(ii) they will operate effectively and are substantially likely either to achieve greater continuous emission reduction than the otherwise applicable standards require, or to achieve at least an equivalent reduction with lower energy, economic, or non-air-quality environmental impact;
(iii) the proposed source’s owner or operator has shown to the Administrator’s satisfaction that the system will not create or contribute to an unreasonable risk to public health, welfare, or safety during operation, functioning, or malfunction; and
(iv) granting the waiver meets subparagraph (C).
For clause (ii), the Administrator must consider any earlier failure of the system to operate effectively or meet a new-source performance-standard requirement. For clause (iii), the Administrator must consider, among other things, whether and how much the system will cause, increase, reduce, or eliminate emissions of unregulated pollutants; available ways to reduce or eliminate risks to public health, welfare, or safety associated with the system; and other technological systems that could meet this section’s standards without creating or contributing to that unreasonable risk. The Administrator may conduct tests and require the owner or operator to conduct tests and provide information needed for clause (iii). Those requirements must include prompt reporting of an unregulated pollutant emitted by the system if the source did not emit it, or emitted significantly less of it, without the system.

(B) The Administrator must grant a waiver on terms and conditions needed to ensure that:
(i) the source’s emissions will not prevent achieving or maintaining national ambient air-quality standards; and
(ii) the authorized system or systems function properly.
Each term or condition is treated as a performance standard for subsection (e) and section 7413.

(C) The number of waivers for a proposed system may not exceed the number the Administrator finds necessary to determine whether the system will meet the conditions in clauses (ii) and (iii) of subparagraph (A).

(D) A waiver lasts until whichever comes first:
(i) the date the Administrator sets after consulting the owner or operator and considering the system’s design, installation, and capital cost; or
(ii) the date the Administrator decides the system failed to achieve at least the equivalent continuous emission reduction otherwise required, or failed to meet subparagraph (A)(iii), and the failure cannot be corrected.

(E) For subparagraph (D)(i), a waiver may not last beyond the earlier of:
(i) 7 years after the waiver is granted for the source or part; or
(ii) 4 years after that source or part begins operating.

(F) A waiver applies only to the part of the source where the innovative system is used.

(2)(A) If a waiver ends under paragraph (1)(D)(ii), the Administrator must extend this section’s requirements for the source for the minimum time needed to meet the applicable performance standard. The extension may not last more than 3 years after the waiver ends.

(B) An extension must state emission limits and a compliance schedule with progress steps. The schedule must require compliance with the applicable standards as quickly as practicable and include necessary and practicable interim measures to minimize emissions. The schedule is treated as a performance standard for subsection (e) and section 7413.