42 U.S.C. § 7651h — Repowered sources

Page 7433 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651h for the affected source. The provisions of section 558(c) of title 5 (relating to renewals) shall apply to permits issued by a permitting authority under this subchapter and subchapter V. (4) The permit issued in accordance with this subsection for an affected source shall provide that the affected units at the affected source may not emit an annual tonnage of sulfur diox- ide in excess of the number of allowances to emit sulfur dioxide the owner or operator or des- ignated representative hold for the unit. (e) New units The owner or operator of each source that in- cludes a new electric utility steam generating unit shall submit a permit application and com- pliance plan to the permitting authority not later than 24 months before the later of (1) Janu- ary 1, 2000, or (2) the date on which the unit commences operation. The permitting authority shall issue a permit to the owner or operator, or the designated representative thereof, of the unit that satisfies the requirements of sub- chapter V and this subchapter. (f) Units subject to certain other limits The owner or operator, or designated rep- resentative thereof, of any unit subject to an emission rate requirement under section 7651f of this title shall submit a permit application and compliance plan for such unit to the permitting authority, not later than January 1, 1998. The permitting authority shall issue a permit to the owner or operator that satisfies the require- ments of subchapter V and this subchapter, in- cluding any appropriate monitoring and report- ing requirements. (g) Amendment of application and compliance plan At any time after the submission of an appli- cation and compliance plan under this section, the applicant may submit a revised application and compliance plan, in accordance with the re- quirements of this section. In considering any permit application and compliance plan under this subchapter, the permitting authority shall ensure coordination with the applicable electric ratemaking authority, in the case of regulated utilities, and with unregulated public utilities. (h) Prohibition (1) It shall be unlawful for an owner or oper- ator, or designated representative, required to submit a permit application or compliance plan under this subchapter to fail to submit such ap- plication or plan in accordance with the dead- lines specified in this section or to otherwise fail to comply with regulations implementing this section. (2) It shall be unlawful for any person to oper- ate any source subject to this subchapter except in compliance with the terms and requirements of a permit application and compliance plan (in- cluding amendments thereto) or permit issued by the Administrator or a State with an ap- proved permit program. For purposes of this subsection, compliance, as provided in section 7661c(f) of this title, with a permit issued under subchapter V which complies with this sub- chapter for sources subject to this subchapter shall be deemed compliance with this subsection as well as section 7661a(a) of this title. (3) In order to ensure reliability of electric power, nothing in this subchapter or subchapter V shall be construed as requiring termination of operations of an electric utility steam gener- ating unit for failure to have an approved per- mit or compliance plan, except that any such unit may be subject to the applicable enforce- ment provisions of section 7413 of this title. (i) Multiple owners No permit shall be issued under this section to an affected unit until the designated representa- tive of the owners or operators has filed a cer- tificate of representation with regard to matters under this subchapter, including the holding and distribution of allowances and the proceeds of transactions involving allowances. Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, such a unit, or where a utility or industrial customer purchases power from an affected unit (or units) under life- of-the-unit, firm power contractual arrange- ments, the certificate shall state (1) that allow- ances and the proceeds of transactions involving allowances will be deemed to be held or distrib- uted in proportion to each holder’s legal, equi- table, leasehold, or contractual reservation or entitlement, or (2) if such multiple holders have expressly provided for a different distribution of allowances by contract, that allowances and the proceeds of transactions involving allowances will be deemed to be held or distributed in ac- cordance with the contract. A passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the affected unit shall not be deemed to be a holder of a legal, equi- table, leasehold, or contractual interest for the purpose of holding or distributing allowances as provided in this subsection, during either the term of such leasehold or thereafter, unless ex- pressly provided for in the leasehold agreement. Except as otherwise provided in this subsection, where all legal or equitable title to or interest in an affected unit is held by a single person, the certification shall state that all allowances re- ceived by the unit are deemed to be held for that person. (July 14, 1955, ch. 360, title IV, § 408, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2616.) § 7651h. Repowered sources (a) Availability Not later than December 31, 1997, the owner or operator of an existing unit subject to the emis- sions limitation requirements of section 7651d(b) and (c) of this title may demonstrate to the per- mitting authority that one or more units will be repowered with a qualifying clean coal tech- nology to comply with the requirements under section 7651d of this title. The owner or operator shall, as part of any such demonstration, pro- vide, not later than January 1, 2000, satisfactory documentation of a preliminary design and engi- neering effort for such repowering and an exe- cuted and binding contract for the majority of the equipment to repower such unit and such other information as the Administrator may re- Page 7434 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651i 1 So in original. Probably should be section ‘‘7651a(12)’’. 2 So in original. Probably should be ‘‘this’’. quire by regulation. The replacement of an ex- isting utility unit with a new utility unit using a repowering technology referred to in section 7651a(2) 1 of this title which is located at a dif- ferent site, shall be treated as repowering of the existing unit for purposes of this subchapter, if— (1) the replacement unit is designated by the owner or operator to replace such existing unit, and (2) the existing unit is retired from service on or before the date on which the designated replacement unit enters commercial oper- ation. (b) Extension (1) An owner or operator satisfying the re- quirements of subsection (a) shall be granted an extension of the emission limitation require- ment compliance date for that unit from Janu- ary 1, 2000, to December 31, 2003. The extension shall be specified in the permit issued to the source under section 7651g of this title, together with any compliance schedule and other require- ments necessary to meet second phase require- ments by the extended date. Any unit that is granted an extension under this section shall not be eligible for a waiver under section 7411(j) of this title, and shall continue to be subject to requirements under this subchapter as if it were a unit subject to section 7651d of this title. (2) If (A) the owner or operator of an existing unit has been granted an extension under para- graph (1) in order to repower such unit with a clean coal unit, and (B) such owner or operator demonstrates to the satisfaction of the Adminis- trator that the repowering technology to be uti- lized by such unit has been properly constructed and tested on such unit, but nevertheless has been unable to achieve the emission reduction limitations and is economically or techno- logically infeasible, such existing unit may be retrofitted or repowered with equipment or fa- cilities utilizing another clean coal technology or other available control technology. (c) Allowances (1) For the period of the extension under this section, the Administrator shall allocate to the owner or operator of the affected unit, annual allowances for sulfur dioxide equal to the af- fected unit’s baseline multiplied by the lesser of the unit’s federally approved State Implementa- tion Plan emissions limitation or its actual emission rate for 1995 in lieu of any other alloca- tion. Such allowances may not be transferred or used by any other source to meet emission re- quirements under this subchapter. The source owner or operator shall notify the Adminis- trator sixty days in advance of the date on which the affected unit for which the extension has been granted is to be removed from oper- ation to install the repowering technology. (2) Effective on that date, the unit shall be subject to the requirements of section 7651d of this title. Allowances for the year in which the unit is removed from operation to install the repowering technology shall be calculated as the product of the unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000, and prorated ac- cordingly, and are transferable. (3) Allowances for such existing utility units for calendar years after the year the repowering is complete shall be calculated as the product of the existing unit’s baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000. (4) Notwithstanding the provisions of section 7651b(a) and (e) of this title, allowances shall be allocated under this section for a designated re- placement unit which replaces an existing unit (as provided in the last sentence of subsection (a)) in lieu of any further allocations of allow- ances for the existing unit. (5) For the purpose of meeting the aggregate emissions limitation requirement set forth in section 7651b(a)(1) of this title, the units with an extension under this subsection shall be treated in each calendar year during the extension pe- riod as holding allowances allocated under para- graph (3). (d) Control requirements Any unit qualifying for an extension under this section that does not increase actual hourly emissions for any pollutant regulated under the 2 chapter shall not be subject to any stand- ard of performance under section 7411 of this title. Notwithstanding the provisions of this subsection, no new unit (1) designated as a re- placement for an existing unit, (2) qualifying for the extension under subsection (b), and (3) lo- cated at a different site than the existing unit shall receive an exemption from the require- ments imposed under section 7411 of this title. (e) Expedited permitting State permitting authorities and, where appli- cable, the Administrator, are encouraged to give expedited consideration to permit applications under parts C and D of subchapter I of this chap- ter for any source qualifying for an extension under this section. (f) Prohibition It shall be unlawful for the owner or operator of a repowered source to fail to comply with the requirement of this section, or any regulations of permit requirements to implement this sec- tion, including the prohibition against emitting sulfur dioxide in excess of allowances held. (July 14, 1955, ch. 360, title IV, § 409, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2619.) § 7651i. Election for additional sources (a) Applicability The owner or operator of any unit that is not, nor will become, an affected unit under section 7651b(e), 7651c, or 7651d of this title, or that is a process source under subsection (d), that emits sulfur dioxide, may elect to designate that unit or source to become an affected unit and to re- ceive allowances under this subchapter. An elec- tion shall be submitted to the Administrator for approval, along with a permit application and proposed compliance plan in accordance with section 7651g of this title. The Administrator shall approve a designation that meets the re- quirements of this section, and such designated unit, or source, shall be allocated allowances,