42 U.S.C. § 7651i — Election for additional sources

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, Page 7435 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651j 1 So in original. Probably should be ‘‘section’’. 1 So in original. Probably should be ‘‘section’’. and be an affected unit for purposes of this sub- chapter. (b) Establishment of baseline The baseline for a unit designated under this section shall be established by the Adminis- trator by regulation, based on fuel consumption and operating data for the unit for calendar years 1985, 1986, and 1987, or if such data is not available, the Administrator may prescribe a baseline based on alternative representative data. (c) Emission limitations Annual emissions limitations for sulfur diox- ide shall be equal to the product of the baseline multiplied by the lesser of the unit’s 1985 actual or allowable emission rate in lbs/mmBtu, or, if the unit did not operate in 1985, by the lesser of the unit’s actual or allowable emission rate for a calendar year after 1985 (as determined by the Administrator), divided by 2,000. (d) Process sources Not later than 18 months after November 15, 1990, the Administrator shall establish a pro- gram under which the owner or operator of a process source that emits sulfur dioxide may elect to designate that source as an affected unit for the purpose of receiving allowances under this subchapter. The Administrator shall, by regulation, define the sources that may be designated; specify the emissions limitation; specify the operating, emission baseline, and other data requirements; prescribe CEMS or other monitoring requirements; and promulgate permit, reporting, and any other requirements necessary to implement such a program. (e) Allowances and permits The Administrator shall issue allowances to an affected unit under this section in an amount equal to the emissions limitation calculated under subsection (c) or (d), in accordance with section 7651b of this title. Such allowance may be used in accordance with, and shall be subject to, the provisions of section 7651b of this title. Affected sources under this section shall be sub- ject to the requirements of sections 7651b, 7651g, 7651j, 7651k, 7651l, and 7651m of this title. (f) Limitation Any unit designated under this section shall not transfer or bank allowances produced as a result of reduced utilization or shutdown, except that, such allowances may be transferred or car- ried forward for use in subsequent years to the extent that the reduced utilization or shutdown results from the replacement of thermal energy from the unit designated under this section, with thermal energy generated by any other unit or units subject to the requirements of this subchapter, and the designated unit’s allow- ances are transferred or carried forward for use at such other replacement unit or units. In no case may the Administrator allocate to a source designated under this section allowances in an amount greater than the emissions resulting from operation of the source in full compliance with the requirements of this chapter. No such allowances shall authorize operation of a unit in violation of any other requirements of this chapter. (g) Implementation The Administrator shall issue regulations to implement this section not later than eighteen months after November 15, 1990. (h) Small diesel refineries The Administrator shall issue allowances to owners or operators of small diesel refineries who produce diesel fuel after October 1, 1993, meeting the requirements of subsection 1 7545(i) of this title. (1) Allowance period Allowances may be allocated under this sub- section only for the period from October 1, 1993, through December 31, 1999. (2) Allowance determination The number of allowances allocated pursu- ant to this paragraph shall equal the annual number of pounds of sulfur dioxide reduction attributable to desulfurization by a small re- finery divided by 2,000. For the purposes of this calculation, the concentration of sulfur re- moved from diesel fuel shall be the difference between 0.274 percent (by weight) and 0.050 per- cent (by weight). (3) Refinery eligibility As used in this subsection, the term ‘‘small refinery’’ shall mean a refinery or portion of a refinery— (A) which, as of November 15, 1990, has bona fide crude oil throughput of less than 18,250,000 barrels per year, as reported to the Department of Energy, and (B) which, as of November 15, 1990, is owned or controlled by a refiner with a total combined bona fide crude oil throughput of less than 50,187,500 barrels per year, as re- ported to the Department of Energy. (4) Limitation per refinery The maximum number of allowances that can be annually allocated to a small refinery pursuant to this subsection is one thousand and five hundred. (5) Limitation on total In any given year, the total number of allow- ances allocated pursuant to this subsection shall not exceed thirty-five thousand. (6) Required certification The Administrator shall not allocate any al- lowances pursuant to this subsection unless the owner or operator of a small diesel refin- ery shall have certified, at a time and in a manner prescribed by the Administrator, that all motor diesel fuel produced by the refinery for which allowances are claimed, including motor diesel fuel for off-highway use, shall have met the requirements of subsection 1 7545(i) of this title. (July 14, 1955, ch. 360, title IV, § 410, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2621.) § 7651j. Excess emissions penalty (a) Excess emissions penalty The owner or operator of any unit or process source subject to the requirements of sections 1