Sec. 119. (a)(1) Upon application by the owner or operator of a
primary nonferrous smelter, a primary nonferrous smelter order
under subsection (b) may be issued -
(A) by the Administrator, after thirty days' notice to the
State, or
(B) by the State in which such source is located, but no
such order issued by the State shall take effect until the
Administrator determines that such order has been issued in
accordance with the requirements of this Act.
Not later than ninety days after submission by the State to the
Administrator of notice of the issuance of a primary nonferrous
smelter order under this section, the Administrator shall deter-
mine whether or not such order has been issued by the State in
ac-cordance with the requirements of this Act. If the Adminis-
trator determines that such order has not been issued in accor-
dance with such requirements, he shall conduct a hearing respect-
ing the rea-sonably available control technology for primary
nonferrous smelters.
(2)(A) An order issued under this section to a primary nonfer-
rous smelter shall be referred to as a "primary nonferrous
smelter order". No primary nonferrous smelter may receive both an
enforce-ment order under section 113(d) and a primary nonferrous
smelter order under this section.
(B) Before any hearing conducted under this section, in the
case of an application made by the owner or operator of a primary
non-ferrous smelter for a second order under this section, the
appli-cant shall furnish the Administrator (or the State as the
case may be) with a statement of the grounds on which such
application is
based (including all supporting documents and information). The
statement of the grounds for the proposed order shall be provided
by the Administrator or the State in any case in which such State
or Administrator is acting on its own initiative. Such statement
(including such documents and information) shall be made
available to the public for a thirty-day period before such
hearing and shall be considered as part of such hearing. No
primary nonferrous smelter order may be granted unless the
applicant establishes that he meets the conditions required for
the issuance of such order (or the Administrator or State
establishes the meeting of such conditions when acting on their
own initiative).
(C) Any decision with respect to the issuance of a primary
nonferrous smelter order shall be accompanied by a concise
statement of the findings and of the basis of such findings.
(3) For the purposes of section 110, 304, and 307 of this Act,
any order issued by the State and in effect pursuant to this
subsection shall become part of the applicable implementation
plan.
(b) A primary nonferrous smelter order under this section may
be issued to a primary nonferrous smelter if -
(1) such smelter is in existence on the date of the enact-
ment of this section;
(2) the requirement of the applicable implementation plan
with respect to which the order is issued is an emission
limitation or standard for sulfur oxides which is necessary
and intended to be itself sufficient to enable attainment
and maintenance of national primary and secondary ambient
air quality standards for sulfur oxides; and
(3) such smelter is unable to comply with such requirement
by the applicable date for compliance because no means of
emission limitation applicable to such smelter which will
enable it to achieve compliance with such requirement has
been adequately demonstrated to be reasonably available (as
determined by the Administrator, taking into account the
cost of compliance, nonair quality health and environmental
impact, and energy consideration).
(c)(1) A second order issued to a smelter under this section
shall set forth compliance schedules containing increments of
progress which require compliance with the requirement postponed
as expeditiously as practicable. The increments of progress shall
be limited to requiring compliance with subsection (d) and, in
the case of a second order, to procuring, installing, and
operating the necessary means of emission limitation as
expeditiously as practicable after the Administrator determines
such means have been adequately demonstrated to be reasonably
available within the meaning of subsection (b)(3).
(2) Not in excess of two primary nonferrous smelter orders may
be issued under this section to any primary nonferrous smelter.
The first such order issued to a smelter shall not result in the
postponement of the requirement with respect to which such order
is issued beyond January 1, 1983. The second such order shall not
result in the postponement of such requirement beyond January 1,
1988.
(d)(1)(A) Each primary nonferrous smelter to which an order is
issued under this section shall be required to use such interim
measures for the period during which such order is in effect as
may be necessary in the judgment of the Administrator to assure
attainment and maintenance of the national primary and secondary
ambient air quality standards during such period, taking into
account the aggregate effect on air quality of such order
together with all variances, extensions, waivers, enforcement
orders, delayed compliance orders and primary nonferrous smelter
orders previously issued under this Act.
(B) Such interim requirements shall include -
(i) a requirement that the source to which the order
applies comply with such reporting requirements and
conduct such monitoring as the Administrator determines
may be necessary, and
(ii) such measures as the Administrator determines are
necessary to avoid an imminent and substantial
endangerment to health of persons.
(C) Such interim measures shall also, except as provided in
paragraph (2), include continuous emission reduction technology.
The Administrator shall condition the use of any such interim
measures upon the agreement of the owner or operator of the
smelter -
(i) to comply with such conditions as the Administrator
determines are necessary to maximize the reliability and
enforceability of such interim measures, as applied to the
smelter, in attaining and maintaining the national ambient
air quality standards to which the order relates, and
(ii) to commit reasonable resources to research and
development of appropriate emission control technology.
(2) The requirement of paragraph (1) for the use of continuous
emission reduction technology may be waived with respect to a
particular smelter by the State or the Administrator, after
notice and a hearing on the record, and upon a showing by the
owner or operator of the smelter that such requirement would be
so costly as to necessitate permanent or prolonged temporary
cessation of operations of the smelter. Upon application for such
waiver, the Administrator shall be notified and shall, within
ninety days, hold a hearing on the record in accordance with
section 554 of title 5 of the United States Code. At such hearing
the Administrator shall require the smelter involved to present
information relating to any alleged cessation of operations and
the detailed reasons or justifications therefor. On the basis of
such hearing the Administrator shall make findings of fact as to
the effect of such requirement and on the alleged cessation of
operations and shall make such recommendations as he deems
appropriate. Such report, findings, and recommendations shall be
available to the public, and shall be taken into account by the
State or the Administrator in making the decision whether or not
to grant such waiver.
(3) In order to obtain information for purposes of a waiver
under paragraph (2), the Administrator may, on his own motion,
conduct an investigation and use the authority of section 321.
(4) In the case of any smelter which on the date of enactment
of this section uses continuous emission reduction technology and
supplemental controls and which receives an initial primary
nonferrous smelter order under this section, no additional
continuous emission reduction technology shall be required as a
condition of such order unless the Administrator determines, at
any time, after notice and public hearing, that such additional
continuous emission reduction technology is adequately
demonstrated to be reasonably available for the primary
nonferrous smelter industry.
(e) At any time during which an order under this section
applies, the Administration may enter upon a public hearing
respecting the availability of technology. Any order under this
section shall be terminated if the Administrator determines on
the record, after notice and public hearing, that the conditions
upon which the order was based no longer exist. If the owner or
operator of the smelter to which the order is issued demonstrates
that prompt termination of such order would result in undue
hardship, the termination shall become effective at the earliest
practicable date on which such undue hardship would not result,
but in no event later than the date required under subsection
(c).
(f) If the Administrator determines that a smelter to which an
order is issued under this section is in violation of any
requirement of subsection (c) or (d), he shall -
(1) enforce such requirement under section 113,
(2) (after notice and opportunity for public hearing)
revoke such order and enforce compliance with the
requirement with respect to which such order was granted,
(3) give notice of noncompliance and commence action under
section 120, or
(4) take any appropriate combination of such action.
[42 U.S.C. 7419]