42 U.S.C. § 7651a — Definitions

Page 7413 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a tions in annual emissions of sulfur dioxide of ten million tons from 1980 emission levels, and, in combination with other provisions of this chap- ter, of nitrogen oxides emissions of approxi- mately two million tons from 1980 emission lev- els, in the forty-eight contiguous States and the District of Columbia. It is the intent of this sub- chapter to effectuate such reductions by requir- ing compliance by affected sources with pre- scribed emission limitations by specified dead- lines, which limitations may be met through al- ternative methods of compliance provided by an emission allocation and transfer system. It is also the purpose of this subchapter to encourage energy conservation, use of renewable and clean alternative technologies, and pollution preven- tion as a long-range strategy, consistent with the provisions of this subchapter, for reducing air pollution and other adverse impacts of en- ergy production and use. (July 14, 1955, ch. 360, title IV, § 401, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2584.) Editorial Notes CODIFICATION Another section 401 of act July 14, 1955, as added by Pub. L. 91–604, § 14, Dec. 31, 1970, 84 Stat. 1709, is set out as a Short Title note under section 7401 of this title. Statutory Notes and Related Subsidiaries ACID DEPOSITION STANDARDS Pub. L. 101–549, title IV, § 404, Nov. 15, 1990, 104 Stat. 2632, directed Administrator of Environmental Protec- tion Agency, not later than 36 months after Nov. 15, 1990, to transmit to Congress a report on the feasibility and effectiveness of an acid deposition standard or standards to protect sensitive and critically sensitive aquatic and terrestrial resources. INDUSTRIAL SO2 EMISSIONS Pub. L. 101–549, title IV, § 406, Nov. 15, 1990, 104 Stat. 2632, provided that: ‘‘(a) REPORT.—Not later than January 1, 1995 and every 5 years thereafter, the Administrator of the Envi- ronmental Protection Agency shall transmit to the Congress a report containing an inventory of national annual sulfur dioxide emissions from industrial sources (as defined in title IV of the Act [42 U.S.C. 7651 et seq.]), including units subject to section 405(g)(6) of the Clean Air Act [42 U.S.C. 7651d(g)(6)], for all years for which data are available, as well as the likely trend in such emissions over the following twenty-year period. The reports shall also contain estimates of the actual emis- sion reduction in each year resulting from promulga- tion of the diesel fuel desulfurization regulations under section 214 [42 U.S.C. 7548]. ‘‘(b) 5.60 MILLION TON CAP.—Whenever the inventory required by this section indicates that sulfur dioxide emissions from industrial sources, including units sub- ject to section 405(g)(5) of the Clean Air Act [42 U.S.C. 7651d(g)(5)], may reasonably be expected to reach levels greater than 5.60 million tons per year, the Adminis- trator of the Environmental Protection Agency shall take such actions under the Clean Air Act [42 U.S.C. 7401 et seq.] as may be appropriate to ensure that such emissions do not exceed 5.60 million tons per year. Such actions may include the promulgation of new and re- vised standards of performance for new sources, includ- ing units subject to section 405(g)(5) of the Clean Air Act, under section 111(b) of the Clean Air Act [42 U.S.C. 7411(b)], as well as promulgation of standards of per- formance for existing sources, including units subject to section 405(g)(5) of the Clean Air Act, under author- ity of this section. For an existing source regulated under this section, ‘standard of performance’ means a standard which the Administrator determines is appli- cable to that source and which reflects the degree of emission reduction achievable through the application of the best system of continuous emission reduction which (taking into consideration the cost of achieving such emission reduction, and any nonair quality health and environmental impact and energy requirements) the Administrator determines has been adequately demonstrated for that category of sources. ‘‘(c) ELECTION.—Regulations promulgated under sec- tion 405(b) of the Clean Air Act [42 U.S.C. 7651d(b)] shall not prohibit a source from electing to become an af- fected unit under section 410 of the Clean Air Act [42 U.S.C. 7651i].’’ [For termination, effective May 15, 2000, of reporting provisions in section 406(a) of Pub. L. 101–549, set out above, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and the 10th item on page 162 of House Docu- ment No. 103–7.] SENSE OF CONGRESS ON EMISSION REDUCTIONS COSTS Pub. L. 101–549, title IV, § 407, Nov. 15, 1990, 104 Stat. 2633, provided that: ‘‘It is the sense of the Congress that the Clean Air Act Amendments of 1990 [Pub. L. 101–549, see Tables for classification], through the allowance program, allocates the costs of achieving the required reductions in emissions of sulfur dioxide and oxides of nitrogen among sources in the United States. Broad based taxes and emissions fees that would provide for payment of the costs of achieving required emissions reductions by any party or parties other than the sources required to achieve the reductions are undesir- able.’’ MONITORING OF ACID RAIN PROGRAM IN CANADA Pub. L. 101–549, title IV, § 408, Nov. 15, 1990, 104 Stat. 2633, provided that the Administrator of the Environ- mental Protection Agency, in consultation with the Secretary of State, the Secretary of Energy, and other persons the Administrator deemed appropriate, would prepare and submit a report to Congress on January 1, 1994, January 1, 1999, and January 1, 2005, to analyze the emission levels of sulfur dioxide and nitrogen oxides in each of the provinces participating in Canada’s acid rain control program, the amount of emission reduc- tions of sulfur dioxide and oxides of nitrogen achieved by each province, the methods utilized by each prov- ince in making those reductions, and the costs and em- ployment impacts in each province of making and maintaining those reductions. § 7651a. Definitions As used in this subchapter: (1) The term ‘‘affected source’’ means a source that includes one or more affected units. (2) The term ‘‘affected unit’’ means a unit that is subject to emission reduction require- ments or limitations under this subchapter. (3) The term ‘‘allowance’’ means an author- ization, allocated to an affected unit by the Administrator under this subchapter, to emit, during or after a specified calendar year, one ton of sulfur dioxide. (4) The term ‘‘baseline’’ means the annual quantity of fossil fuel consumed by an affected unit, measured in millions of British Thermal Units (‘‘mmBtu’s’’), calculated as follows: (A) For each utility unit that was in com- mercial operation prior to January 1, 1985, the baseline shall be the annual average quantity of mmBtu’s consumed in fuel dur- Page 7414 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a 1 So in original. The reference to ‘‘paragraph (3)’’ probably should be to ‘‘subparagraph (C)’’. 2 So in original. Probably should be ‘‘this’’. 3 See References in Text note below. ing calendar years 1985, 1986, and 1987, as re- corded by the Department of Energy pursu- ant to Form 767. For any utility unit for which such form was not filed, the baseline shall be the level specified for such unit in the 1985 National Acid Precipitation Assess- ment Program (NAPAP) Emissions Inven- tory, Version 2, National Utility Reference File (NURF) or in a corrected data base as established by the Administrator pursuant to paragraph (3).1 For nonutility units, the baseline is the NAPAP Emissions Inventory, Version 2. The Administrator, in the Admin- istrator’s sole discretion, may exclude peri- ods during which a unit is shutdown for a continuous period of four calendar months or longer, and make appropriate adjust- ments under this paragraph. Upon petition of the owner or operator of any unit, the Ad- ministrator may make appropriate baseline adjustments for accidents that caused pro- longed outages. (B) For any other nonutility unit that is not included in the NAPAP Emissions Inven- tory, Version 2, or a corrected data base as established by the Administrator pursuant to paragraph (3),1 the baseline shall be the annual average quantity, in mmBtu con- sumed in fuel by that unit, as calculated pursuant to a method which the adminis- trator shall prescribe by regulation to be promulgated not later than eighteen months after November 15, 1990. (C) The Administrator shall, upon applica- tion or on his own motion, by December 31, 1991, supplement data needed in support of this subchapter and correct any factual er- rors in data from which affected Phase II units’ baselines or actual 1985 emission rates have been calculated. Corrected data shall be used for purposes of issuing allowances under the 2 subchapter. Such corrections shall not be subject to judicial review, nor shall the failure of the Administrator to cor- rect an alleged factual error in such reports be subject to judicial review. (5) The term ‘‘capacity factor’’ means the ratio between the actual electric output from a unit and the potential electric output from that unit. (6) The term ‘‘compliance plan’’ means, for purposes of the requirements of this sub- chapter, either— (A) a statement that the source will com- ply with all applicable requirements under this subchapter, or (B) where applicable, a schedule and de- scription of the method or methods for com- pliance and certification by the owner or op- erator that the source is in compliance with the requirements of this subchapter. (7) The term ‘‘continuous emission moni- toring system’’ (CEMS) means the equipment as required by section 7651k of this title, used to sample, analyze, measure, and provide on a continuous basis a permanent record of emis- sions and flow (expressed in pounds per million British thermal units (lbs/mmBtu), pounds per hour (lbs/hr) or such other form as the Admin- istrator may prescribe by regulations under section 7651k of this title). (8) The term ‘‘existing unit’’ means a unit (including units subject to section 7411 of this title) that commenced commercial operation before November 15, 1990. Any unit that com- menced commercial operation before Novem- ber 15, 1990, which is modified, reconstructed, or repowered after November 15, 1990, shall continue to be an existing unit for the pur- poses of this subchapter. For the purposes of this subchapter, existing units shall not in- clude simple combustion turbines, or units which serve a generator with a nameplate ca- pacity of 25MWe or less. (9) The term ‘‘generator’’ means a device that produces electricity and which is re- ported as a generating unit pursuant to De- partment of Energy Form 860. (10) The term ‘‘new unit’’ means a unit that commences commercial operation on or after November 15, 1990. (11) The term ‘‘permitting authority’’ means the Administrator, or the State or local air pollution control agency, with an approved permitting program under part B 3 of title III of the Act. (12) The term ‘‘repowering’’ means replace- ment of an existing coal-fired boiler with one of the following clean coal technologies: at- mospheric or pressurized fluidized bed combus- tion, integrated gasification combined cycle, magnetohydrodynamics, direct and indirect coal-fired turbines, integrated gasification fuel cells, or as determined by the Adminis- trator, in consultation with the Secretary of Energy, a derivative of one or more of these technologies, and any other technology capa- ble of controlling multiple combustion emis- sions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the per- formance of technology in widespread com- mercial use as of November 15, 1990. Notwith- standing the provisions of section 7651h(a) of this title, for the purpose of this subchapter, the term ‘‘repowering’’ shall also include any oil and/or gas-fired unit which has been award- ed clean coal technology demonstration fund- ing as of January 1, 1991, by the Department of Energy. (13) The term ‘‘reserve’’ means any bank of allowances established by the Administrator under this subchapter. (14) The term ‘‘State’’ means one of the 48 contiguous States and the District of Colum- bia. (15) The term ‘‘unit’’ means a fossil fuel- fired combustion device. (16) The term ‘‘actual 1985 emission rate’’, for electric utility units means the annual sul- fur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emissions Inventory, Version 2, Na- tional Utility Reference File. For nonutility units, the term ‘‘actual 1985 emission rate’’ Page 7415 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651a 4 So in original. Probably should be ‘‘section’’. 5 So in original. Probably should be section ‘‘7651i(d)’’. means the annual sulfur dioxide or nitrogen oxides emission rate in pounds per million Btu as reported in the NAPAP Emission Inventory, Version 2. (17)(A) The term ‘‘utility unit’’ means— (i) a unit that serves a generator in any State that produces electricity for sale, or (ii) a unit that, during 1985, served a gener- ator in any State that produced electricity for sale. (B) Notwithstanding subparagraph (A), a unit described in subparagraph (A) that— (i) was in commercial operation during 1985, but (ii) did not, during 1985, serve a generator in any State that produced electricity for sale shall not be a utility unit for purposes of this subchapter. (C) A unit that cogenerates steam and elec- tricity is not a ‘‘utility unit’’ for purposes of this subchapter unless the unit is constructed for the purpose of supplying, or commences construction after November 15, 1990, and sup- plies, more than one-third of its potential electric output capacity and more than 25 megawatts electrical output to any utility power distribution system for sale. (18) The term ‘‘allowable 1985 emissions rate’’ means a federally enforceable emissions limitation for sulfur dioxide or oxides of nitro- gen, applicable to the unit in 1985 or the limi- tation applicable in such other subsequent year as determined by the Administrator if such a limitation for 1985 does not exist. Where the emissions limitation for a unit is not expressed in pounds of emissions per mil- lion Btu, or the averaging period of that emis- sions limitation is not expressed on an annual basis, the Administrator shall calculate the annual equivalent of that emissions limitation in pounds per million Btu to establish the al- lowable 1985 emissions rate. (19) The term ‘‘qualifying phase I tech- nology’’ means a technological system of con- tinuous emission reduction which achieves a 90 percent reduction in emissions of sulfur di- oxide from the emissions that would have re- sulted from the use of fuels which were not subject to treatment prior to combustion. (20) The term ‘‘alternative method of com- pliance’’ means a method of compliance in ac- cordance with one or more of the following au- thorities: (A) a substitution plan submitted and ap- proved in accordance with subsections 4 7651c(b) and (c) of this title; (B) a Phase I extension plan approved by the Administrator under section 7651c(d) of this title, using qualifying phase I tech- nology as determined by the Administrator in accordance with that section; or (C) repowering with a qualifying clean coal technology under section 7651h of this title. (21) The term ‘‘commenced’’ as applied to construction of any new electric utility unit means that an owner or operator has under- taken a continuous program of construction or that an owner or operator has entered into a contractual obligation to undertake and com- plete, within a reasonable time, a continuous program of construction. (22) The term ‘‘commenced commercial oper- ation’’ means to have begun to generate elec- tricity for sale. (23) The term ‘‘construction’’ means fabrica- tion, erection, or installation of an affected unit. (24) The term ‘‘industrial source’’ means a unit that does not serve a generator that pro- duces electricity, a ‘‘nonutility unit’’ as de- fined in this section, or a process source as de- fined in section 7651i(e) 5 of this title. (25) The term ‘‘nonutility unit’’ means a unit other than a utility unit. (26) The term ‘‘designated representative’’ means a responsible person or official author- ized by the owner or operator of a unit to rep- resent the owner or operator in matters per- taining to the holding, transfer, or disposition of allowances allocated to a unit, and the sub- mission of and compliance with permits, per- mit applications, and compliance plans for the unit. (27) The term ‘‘life-of-the-unit, firm power contractual arrangement’’ means a unit par- ticipation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or per- centage of capacity and associated energy gen- erated by a specified generating unit (or units) and pays its proportional amount of such unit’s total costs, pursuant to a contract ei- ther— (A) for the life of the unit; (B) for a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or (C) for a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit was built, with option rights to pur- chase or re-lease some portion of the capac- ity and associated energy generated by the unit (or units) at the end of the period. (28) The term ‘‘basic Phase II allowance allo- cations’’ means: (A) For calendar years 2000 through 2009 inclusive, allocations of allowances made by the Administrator pursuant to section 7651b of this title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4), and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1); (i) and (j) of section 7651d of this title. (B) For each calendar year beginning in 2010, allocations of allowances made by the Administrator pursuant to section 7651b of this title and subsections (b)(1), (3), and (4); (c)(1), (2), (3), and (5); (d)(1), (2), (4) and (5); (e); (f); (g)(1), (2), (3), (4), and (5); (h)(1) and (3); (i) and (j) of section 7651d of this title. (29) The term ‘‘Phase II bonus allowance al- locations’’ means, for calendar year 2000 through 2009, inclusive, and only for such years, allocations made by the Administrator pursuant to section 7651b of this title, sub- sections (a)(2), (b)(2), (c)(4), (d)(3) (except as Page 7416 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651b 1 So in original. No pars. (2) and (3) have been enacted. otherwise provided therein), and (h)(2) of sec- tion 7651d of this title, and section 7651e of this title. (July 14, 1955, ch. 360, title IV, § 402, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2585.) Editorial Notes REFERENCES IN TEXT Part B of title III of the Act, referred to in par. (11), means title III of the Clean Air Act, act July 14, 1955, ch. 360, as added, which is classified to subchapter III of this chapter, but title III does not contain parts. For provisions of the Clean Air Act relating to permits, see subchapter V (§ 7661 et seq.) of this chapter. CODIFICATION Another section 402 of act July 14, 1955, as added by Pub. L. 91–604, § 14, Dec. 31, 1970, 84 Stat. 1709, is classi- fied to section 7641 of this title. § 7651b. Sulfur dioxide allowance program for ex- isting and new units (a) Allocations of annual allowances for existing and new units (1) 1 For the emission limitation programs under this subchapter, the Administrator shall allocate annual allowances for the unit, to be held or distributed by the designated representa- tive of the owner or operator of each affected unit at an affected source in accordance with this subchapter, in an amount equal to the an- nual tonnage emission limitation calculated under section 7651c, 7651d, 7651e, 7651h, or 7651i of this title except as otherwise specifically pro- vided elsewhere in this subchapter. Except as provided in sections 7651d(a)(2), 7651d(a)(3), 7651h and 7651i of this title, beginning January 1, 2000, the Administrator shall not allocate annual al- lowances to emit sulfur dioxide pursuant to sec- tion 7651d of this title in such an amount as would result in total annual emissions of sulfur dioxide from utility units in excess of 8.90 mil- lion tons except that the Administrator shall not take into account unused allowances carried forward by owners and operators of affected units or by other persons holding such allow- ances, following the year for which they were al- located. If necessary to meeting the restrictions imposed in the preceding sentence, the Adminis- trator shall reduce, pro rata, the basic Phase II allowance allocations for each unit subject to the requirements of section 7651d of this title. Subject to the provisions of section 7651o of this title, the Administrator shall allocate allow- ances for each affected unit at an affected source annually, as provided in paragraphs (2) and (3) 1 and section 7651g of this title. Except as provided in sections 7651h and 7651i of this title, the removal of an existing affected unit or source from commercial operation at any time after November 15, 1990 (whether before or after January 1, 1995, or January 1, 2000) shall not ter- minate or otherwise affect the allocation of al- lowances pursuant to section 7651c or 7651d of this title to which the unit is entitled. Allow- ances shall be allocated by the Administrator without cost to the recipient, except for allow- ances sold by the Administrator pursuant to sec- tion 7651o of this title. Not later than December 31, 1991, the Administrator shall publish a pro- posed list of the basic Phase II allowance alloca- tions, the Phase II bonus allowance allocations and, if applicable, allocations pursuant to sec- tion 7651d(a)(3) of this title for each unit subject to the emissions limitation requirements of sec- tion 7651d of this title for the year 2000 and the year 2010. After notice and opportunity for pub- lic comment, but not later than December 31, 1992, the Administrator shall publish a final list of such allocations, subject to the provisions of section 7651d(a)(2) of this title. Any owner or op- erator of an existing unit subject to the require- ments of section 7651d(b) or (c) of this title who is considering applying for an extension of the emission limitation requirement compliance deadline for that unit from January 1, 2000, until not later than December 31, 2000, pursuant to section 7651h of this title, shall notify the Ad- ministrator no later than March 31, 1991. Such notification shall be used as the basis for esti- mating the basic Phase II allowances under this subsection. Prior to June 1, 1998, the Adminis- trator shall publish a revised final statement of allowance allocations, subject to the provisions of section 7651d(a)(2) of this title and taking into account the effect of any compliance date exten- sions granted pursuant to section 7651h of this title on such allocations. Any person who may make an election concerning the amount of al- lowances to be allocated to a unit or units shall make such election and so inform the Adminis- trator not later than March 31, 1991, in the case of an election under section 7651d of this title (or June 30, 1991, in the case of an election under section 7651e of this title). If such person fails to make such election, the Administrator shall set forth for each unit owned or operated by such person, the amount of allowances reflecting the election that would, in the judgment of the Ad- ministrator, provide the greatest benefit for the owner or operator of the unit. If such person is a Governor who may make an election under section 7651e of this title and the Governor fails to make an election, the Administrator shall set forth for each unit in the State the amount of allowances reflecting the election that would, in the judgment of the Administrator, provide the greatest benefit for units in the State. (b) Allowance transfer system Allowances allocated under this subchapter may be transferred among designated represent- atives of the owners or operators of affected sources under this subchapter and any other per- son who holds such allowances, as provided by the allowance system regulations to be promul- gated by the Administrator not later than eight- een months after November 15, 1990. Such regu- lations shall establish the allowance system pre- scribed under this section, including, but not limited to, requirements for the allocation, transfer, and use of allowances under this sub- chapter. Such regulations shall prohibit the use of any allowance prior to the calendar year for which the allowance was allocated, and shall provide, consistent with the purposes of this subchapter, for the identification of unused al- lowances, and for such unused allowances to be