42 U.S.C. § 7511d

Enforcement for Severe and Extreme ozone nonattainment areas for failure to attain

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(a) General rule

Each implementation plan revision required under section 7511a(d) and (e) of this title (relating to the attainment plan for Severe and Extreme ozone nonattainment areas) shall provide that, if the area to which such plan revision applies has failed to attain the national primary ambient air quality standard for ozone by the applicable attainment date, each major stationary source of VOCs located in the area shall, except as otherwise provided under subsection (c), pay a fee to the State as a penalty for such failure, computed in accordance with subsection (b), for each calendar year beginning after the attainment date, until the area is redesignated as an attainment area for ozone. Each such plan revision should include procedures for assessment and collection of such fees.

(b) Computation of fee(1) Fee amount

The fee shall equal $5,000, adjusted in accordance with paragraph (3), per ton of VOC emitted by the source during the calendar year in excess of 80 percent of the baseline amount, computed under paragraph (2).

(2) Baseline amount

For purposes of this section, the baseline amount shall be computed, in accordance with such guidance as the Administrator may provide, as the lower of the amount of actual VOC emissions (“actuals”) or VOC emissions allowed under the permit applicable to the source (or, if no such permit has been issued for the attainment year, the amount of VOC emissions allowed under the applicable implementation plan (“allowables”)) during the attainment year. Notwithstanding the preceding sentence, the Administrator may issue guidance authorizing the baseline amount to be determined in accordance with the lower of average actuals or average allowables, determined over a period of more than one calendar year. Such guidance may provide that such average calculation for a specific source may be used if that source’s emissions are irregular, cyclical, or otherwise vary significantly from year to year.

(3) Annual adjustment

The fee amount under paragraph (1) shall be adjusted annually, beginning in the year beginning after 1990, in accordance with section 7661a(b)(3)(B)(v) of this title (relating to inflation adjustment).

Notwithstanding any provision of this section, no source shall be required to pay any fee under subsection (a) with respect to emissions during any year that is treated as an Extension Year under section 7511(a)(5) of this title.

(d) Fee collection by Administrator

If the Administrator has found that the fee provisions of the implementation plan do not meet the requirements of this section, or if the Administrator makes a finding that the State is not administering and enforcing the fee required under this section, the Administrator shall, in addition to any other action authorized under this subchapter, collect, in accordance with procedures promulgated by the Administrator, the unpaid fees required under subsection (a). If the Administrator makes such a finding under section 7509(a)(4) of this title, the Administrator may collect fees for periods before the determination, plus interest computed in accordance with section 6621(a)(2) of title 26 (relating to computation of interest on underpayment of Federal taxes), to the extent the Administrator finds such fees have not been paid to the State. The provisions of clauses (ii) through (iii) of section 7661a(b)(3)(C) of this title (relating to penalties and use of the funds, respectively) shall apply with respect to fees collected under this subsection.

(e) Exemptions for certain small areas

For areas with a total population under 200,000 which fail to attain the standard by the applicable attainment date, no sanction under this section or under any other provision of this chapter shall apply if the area can demonstrate, consistent with guidance issued by the Administrator, that attainment in the area is prevented because of ozone or ozone precursors transported from other areas. The prohibition applies only in cases in which the area has met all requirements and implemented all measures applicable to the area under this chapter.

(July 14, 1955, ch. 360, title I, § 185, as added Pub. L. 101–549, title I, § 103, Nov. 15, 1990, 104 Stat. 2450.)

Notes of Decisions

Cited in 11 cases (2 in the last 5 years), 2006–2022 · leading case: Animal Legal Def. Fund v. Sonny Perdue, 872 F.3d 602 (D.C. Cir. 2017).

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Animal Legal Def. Fund v. Sonny Perdue, 872 F.3d 602 (D.C. Cir. 2017). · cites it 2× “, Clean Air Act, 42 U.S.C. § 7511d(e) (2012) (exempting from sanctions those ozone nonattainment areas that “can demonstrate, consistent with guidance issued by the Administrator, that attainment in the area is prevented because of ozone .”

Nat. Resources Def. Council v. Env't Prot. Agency, 777 F.3d 456 (D.C. Cir. 2014). · cites it 2× “See 42 U.S.C. § 7511d. 3. In 1997, citing new information suggesting a correlation between prolonged ozone exposure and “a wide range of health effects,” EPA promulgated new NAAQS for ground-level ozone.”

Nat. Resources Def. Council v. Env't Prot. Agency, 643 F.3d 311 (D.C. Cir. 2011). “And because an order vacating the Guidance would require Houston and the San Joaquin Valley to submit section-185-eompliant state implementation plans (or, if they failed to do so, because EPA itself would be obligated to implement section 185, see 42 U.”

Sierra Club v. EPA, 21 F.4th 815 (D.C. Cir. 2021). “, 42 U.S.C. §§ 7511d(e), 7511f. The plain language of the statute thus requires that increased VOC emissions be offset with 11 reductions in VOC emissions, and the same is true for NOX emissions under most circumstances.”

Nat. Resources Def. Council v. U.S. Env't Prot. Agency, 779 F.3d 1119 (9th Cir. 2015). “42 U.S.C. § 7511d. 1 *1122 For years, EPA set the NAAQS using a one-hour average measurement standard.”

Sierra Club v. EPA, 47 F.4th 738 (D.C. Cir. 2022). “See 42 U.S.C. § 7511d. The 1990 amendments also enacted an anti-backsliding provision that applies if EPA relaxes a NAAQS as part of its five-year review.”

South Coast Air Quality Mgmt. Dist. v. Env't Prot. Agency, 489 F.3d 1245 (D.C. Cir. 2006). · cites it 2× “See CAA § 185, 42 U.S.C. § 7511d. Under the 1990 Amendments, the NAAQS stood at 0.”

Med. Advocates for Healthy Air v. U.S. Env't Prot. Agency, 659 F. App'x 921 (9th Cir. 2016). · cites it 2× “Sections 185(a) and 179(c)(9) (the relevant anti-backsliding measures) are likewise silent: both provisions trigger when an area “fails to attain,” 42 U.S.C. § 7511d(a); 42 U.S.C. § 7502 (c)(9), but neither states that EPA must make the “failure to attain” finding under section…”

South Coast Air Quality Mgmt. Dist. v. Env't Prot. Agency, 472 F.3d 882 (D.C. Cir. 2006). · cites it 3× “See CAA § 185, 42 U.S.C. § 7511d. Under the 1990 Amendments, the NAAQS stood at 0.”

Nat. Resources Def. Coun v. EPA (D.C. Cir. 2011). “And because an order vacating the Guidance would require Houston and the San Joaquin Valley to submit section-185- compliant state implementation plans (or, if they failed to do so, because EPA itself would be obligated to implement section 185, see 42 U.S.C. § 7511d(d)), these…”

Nrdc v. Usepa (9th Cir. 2015). “1 1 42 U.S.C. § 7511d reads in full: (a) General rule Each implementation plan revision required under section 7511a(d) and (e) of this title (relating to the attainment plan for Severe and Extreme ozone nonattainment areas) shall provide that, if the area to which such plan…”

— 42 U.S.C. § 7511d(a) — 3 cases

Med. Advocates for Healthy Air v. U.S. Env't Prot. Agency, 659 F. App'x 921 (9th Cir. 2016). “Sections 185(a) and 179(c)(9) (the relevant anti-backsliding measures) are likewise silent: both provisions trigger when an area “fails to attain,” 42 U.S.C. § 7511d(a); 42 U.S.C. § 7502 (c)(9), but neither states that EPA must make the “failure to attain” finding under section…”

South Coast Air Quality Mgmt. Dist. v. Env't Prot. Agency, 489 F.3d 1245 (D.C. Cir. 2006). “See CAA § 185, 42 U.S.C. § 7511d. Under the 1990 Amendments, the NAAQS stood at 0.”

South Coast Air Quality Mgmt. Dist. v. Env't Prot. Agency, 472 F.3d 882 (D.C. Cir. 2006). “See CAA § 185, 42 U.S.C. § 7511d. Under the 1990 Amendments, the NAAQS stood at 0.”

— 42 U.S.C. § 7511d(d) — 2 cases

— 42 U.S.C. § 7511d(e) — 2 cases

Animal Legal Def. Fund v. Sonny Perdue, 872 F.3d 602 (D.C. Cir. 2017). “, Clean Air Act, 42 U.S.C. § 7511d(e) (2012) (exempting from sanctions those ozone nonattainment areas that “can demonstrate, consistent with guidance issued by the Administrator, that attainment in the area is prevented because of ozone .”

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