42 U.S.C. § 7651j — Excess emissions penalty

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 Page 7436 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651k 2 See References in Text note below. 3 So in original. Probably should be ‘‘occurred,’’. 4 So in original. 7651b, 7651c, 7651d, 7651e, 7651f or 7651h of this title, or designated under section 7651i of this title, that emits sulfur dioxide or nitrogen ox- ides for any calendar year in excess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the owner or operator holds for use for the unit for that cal- endar year shall be liable for the payment of an excess emissions penalty, except where such emissions were authorized pursuant to section 7410(f) of this title. That penalty shall be cal- culated on the basis of the number of tons emit- ted in excess of the unit’s emissions limitation requirement or, in the case of sulfur dioxide, of the allowances the operator holds for use for the unit for that year, multiplied by $2,000. Any such penalty shall be due and payable without demand to the Administrator as provided in reg- ulations to be issued by the Administrator by no later than eighteen months after November 15, 1990. Any such payment shall be deposited in the United States Treasury pursuant to the Mis- cellaneous Receipts Act.2 Any penalty due and payable under this section shall not diminish the liability of the unit’s owner or operator for any fine, penalty or assessment against the unit for the same violation under any other section of this chapter. (b) Excess emissions offset The owner or operator of any affected source that emits sulfur dioxide during any calendar year in excess of the unit’s emissions limitation requirement or of the allowances held for the unit for the calendar year, shall be liable to off- set the excess emissions by an equal tonnage amount in the following calendar year, or such longer period as the Administrator may pre- scribe. The owner or operator of the source shall, within sixty days after the end of the year in which the excess emissions occured,3 submit to the Administrator, and to the State in which the source is located, a proposed plan to achieve the required offsets. Upon approval of the pro- posed plan by the Administrator, as submitted, modified or conditioned, the plan shall be deemed at 4 a condition of the operating permit for the unit without further review or revision of the permit. The Administrator shall also de- duct allowances equal to the excess tonnage from those allocated for the source for the cal- endar year, or succeeding years during which offsets are required, following the year in which the excess emissions occurred. (c) Penalty adjustment The Administrator shall, by regulation, adjust the penalty specified in subsection (a) for infla- tion, based on the Consumer Price Index, on No- vember 15, 1990, and annually thereafter. (d) Prohibition It shall be unlawful for the owner or operator of any source liable for a penalty and offset under this section to fail (1) to pay the penalty under subsection (a), (2) to provide, and there- after comply with, a compliance plan as re- quired by subsection (b), or (3) to offset excess emissions as required by subsection (b). (e) Savings provision Nothing in this subchapter shall limit or oth- erwise affect the application of section 7413, 7414, 7420, or 7604 of this title except as otherwise explicitly provided in this subchapter. (July 14, 1955, ch. 360, title IV, § 411, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2623.) Editorial Notes REFERENCES IN TEXT The Miscellaneous Receipts Act, referred to in sub- sec. (a), is not a recognized popular name for an act. For provisions relating to deposit of monies, see sec- tion 3302 of Title 31, Money and Finance. § 7651k. Monitoring, reporting, and record- keeping requirements (a) Applicability The owner and operator of any source subject to this subchapter shall be required to install and operate CEMS on each affected unit at the source, and to quality assure the data for sulfur dioxide, nitrogen oxides, opacity and volumetric flow at each such unit. The Administrator shall, by regulations issued not later than eighteen months after November 15, 1990, specify the re- quirements for CEMS, for any alternative moni- toring system that is demonstrated as providing information with the same precision, reliability, accessibility, and timeliness as that provided by CEMS, and for recordkeeping and reporting of information from such systems. Such regula- tions may include limitations or the use of al- ternative compliance methods by units equipped with an alternative monitoring system as may be necessary to preserve the orderly functioning of the allowance system, and which will ensure the emissions reductions contemplated by this subchapter. Where 2 or more units utilize a sin- gle stack, a separate CEMS shall not be required for each unit, and for such units the regulations shall require that the owner or operator collect sufficient information to permit reliable compli- ance determinations for each such unit. (b) First phase requirements Not later than thirty-six months after Novem- ber 15, 1990, the owner or operator of each af- fected unit under section 7651c of this title, in- cluding, but not limited to, units that become affected units pursuant to subsections (b) and (c) and eligible units under subsection (d), shall in- stall and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). (c) Second phase requirements Not later than January 1, 1995, the owner or operator of each affected unit that has not pre- viously met the requirements of subsections (a) and (b) shall install and operate CEMS, quality assure the data, and keep records and reports in accordance with the regulations issued under subsection (a). Upon commencement of commer- cial operation of each new utility unit, the unit shall comply with the requirements of sub- section (a). (d) Unavailability of emissions data If CEMS data or data from an alternative monitoring system approved by the Adminis-