42 U.S.C. § 7651g — Permits and compliance plans

Page 7431 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651g 4 So in original. Probably should be ‘‘subsections,’’. 5 So in original. The semicolon probably should be a comma. 1 So in original. Probably should be followed by a comma. the alternative emission rate demonstrated in paragraphs (2) and (3) above. Units subject to subsection (b)(1) for which an alternative emission limitation is established shall not be required to install any additional control technology beyond low NOx burners. Nothing in this section shall preclude an owner or operator from installing and operating an al- ternative NOx control technology capable of achieving the applicable emission limitation. If the owner or operator of a unit subject to the emissions limitation requirements of subsection (b)(1) demonstrates to the satisfaction of the Ad- ministrator that the technology necessary to meet such requirements is not in adequate sup- ply to enable its installation and operation at the unit, consistent with system reliability, by January 1, 1995, then the Administrator shall ex- tend the deadline for compliance for the unit by a period of 15 months. Any owner or operator may petition the Administrator to make a de- termination under the previous sentence. The Administrator shall grant or deny such petition within 3 months of submittal. (e) Emissions averaging In lieu of complying with the applicable emis- sion limitations under subsection (b)(1), (2), or (d), the owner or operator of two or more units subject to one or more of the applicable emis- sion limitations set pursuant to these sections,4 may petition the permitting authority for alter- native contemporaneous annual emission limi- tations for such units that ensure that (1) the actual annual emission rate in pounds of nitro- gen oxides per million Btu averaged over the units in question is a rate that is less than or equal to (2) the Btu-weighted average annual emission rate for the same units if they had been operated, during the same period of time, in compliance with limitations set in accord- ance with the applicable emission rates set pur- suant to subsections (b)(1) and (2). If the permitting authority determines, in ac- cordance with regulations issued by the Admin- istrator not later than eighteen months after November 15, 1990; 5 that the conditions in the paragraph above can be met, the permitting au- thority shall issue operating permits for such units, in accordance with section 7651g of this title and part B 3 of title III, that allow alter- native contemporaneous annual emission limi- tations. Such emission limitations shall only re- main in effect while both units continue oper- ation under the conditions specified in their re- spective operating permits. (July 14, 1955, ch. 360, title IV, § 407, as added Pub. L. 101–549, title IV, § 401, Nov. 15, 1990, 104 Stat. 2613.) Editorial Notes REFERENCES IN TEXT Part B of title III, referred to in subsecs. (d) and (e), 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. § 7651g. Permits and compliance plans (a) Permit program The provisions of this subchapter shall be im- plemented, subject to section 7651b of this title, by permits issued to units subject to this sub- chapter (and enforced) in accordance with the provisions of subchapter V, as modified by this subchapter. Any such permit issued by the Ad- ministrator, or by a State with an approved per- mit program, shall prohibit— (1) annual emissions of sulfur dioxide in ex- cess of the number of allowances to emit sul- fur dioxide the owner or operator, or the des- ignated representative of the owners or opera- tors, of the unit hold for the unit, (2) exceedances of applicable emissions rates, (3) the use of any allowance prior to the year for which it was allocated, and (4) contravention of any other provision of the permit. Permits issued to implement this subchapter shall be issued for a period of 5 years, notwith- standing subchapter V. No permit shall be issued that is inconsistent with the requirements of this subchapter, and subchapter V as applicable. (b) Compliance plan Each initial permit application shall be ac- companied by a compliance plan for the source to comply with its requirements under this sub- chapter. Where an affected source consists of more than one affected unit, such plan shall cover all such units, and for purposes of section 7661a(c) of this title, such source shall be consid- ered a ‘‘facility’’. Nothing in this section regard- ing compliance plans or in subchapter V shall be construed as affecting allowances. Except as provided under subsection (c)(1)(B), submission of a statement by the owner or operator, or the designated representative of the owners and op- erators, of a unit subject to the emissions limi- tation requirements of sections 7651c, 7651d, and 7651f of this title, that the unit will meet the ap- plicable emissions limitation requirements of such sections in a timely manner or that, in the case of the emissions limitation requirements of sections 7651c and 7651d of this title, the owners and operators will hold allowances to emit not less than the total annual emissions of the unit, shall be deemed to meet the proposed and ap- proved compliance planning requirements of this section and subchapter V, except that, for any unit that will meet the requirements of this subchapter by means of an alternative method of compliance authorized under section 7651c(b), (c), (d), or (f) of this title 1 section 7651f(d) or (e) of this title, section 7651h of this title and sec- tion 7651i of this title, the proposed and ap- proved compliance plan, permit application and permit shall include, pursuant to regulations promulgated by the Administrator, for each al- ternative method of compliance a comprehen- sive description of the schedule and means by which the unit will rely on one or more alter- native methods of compliance in the manner and time authorized under this subchapter. Recorda- tion by the Administrator of transfers of allow- Page 7432 TITLE 42—THE PUBLIC HEALTH AND WELFARE § 7651g 2 So in original. Section 7651a of this title does not contain sub- sections. ances shall amend automatically all applicable proposed or approved permit applications, com- pliance plans and permits. The Administrator may also require— (1) for a source, a demonstration of attain- ment of national ambient air quality stand- ards, and (2) from the owner or operator of two or more affected sources, an integrated compli- ance plan providing an overall plan for achiev- ing compliance at the affected sources. (c) First phase permits The Administrator shall issue permits to af- fected sources under sections 7651c and 7651f of this title. (1) Permit application and compliance plan (A) Not later than 27 months after November 15, 1990, the designated representative of the owners or operators, or the owner and oper- ator, of each affected source under sections 7651c and 7651f of this title shall submit a per- mit application and compliance plan for that source in accordance with regulations issued by the Administrator under paragraph (3). The permit application and the compliance plan shall be binding on the owner or operator or the designated representative of owners and operators for purposes of this subchapter and section 7651a(a) 2 of this title, and shall be en- forceable in lieu of a permit until a permit is issued by the Administrator for the source. (B) In the case of a compliance plan for an affected source under sections 7651c and 7651f of this title for which the owner or operator proposes to meet the requirements of that sec- tion by reducing utilization of the unit as compared with its baseline or by shutting down the unit, the owner or operator shall in- clude in the proposed compliance plan a speci- fication of the unit or units that will provide electrical generation to compensate for the re- duced output at the affected source, or a dem- onstration that such reduced utilization will be accomplished through energy conservation or improved unit efficiency. The unit to be used for such compensating generation, which is not otherwise an affected unit under sec- tions 7651c and 7651f of this title, shall be deemed an affected unit under section 7651c of this title, subject to all of the requirements for such units under this subchapter, except that allowances shall be allocated to such compensating unit in the amount of an annual limitation equal to the product of the unit’s baseline multiplied by the lesser of the unit’s actual 1985 emissions rate or its allowable 1985 emissions rate, divided by 2,000. (2) EPA action on compliance plans The Administrator shall review each pro- posed compliance plan to determine whether it satisfies the requirements of this subchapter, and shall approve or disapprove such plan within 6 months after receipt of a complete submission. If a plan is disapproved, it may be resubmitted for approval with such changes as the Administrator shall require consistent with the requirements of this subchapter and within such period as the Administrator pre- scribes as part of such disapproval. (3) Regulations; issuance of permits Not later than 18 months after November 15, 1990, the Administrator shall promulgate regu- lations, in accordance with subchapter V, to implement a Federal permit program to issue permits for affected sources under this sub- chapter. Following promulgation, the Admin- istrator shall issue a permit to implement the requirements of section 7651c of this title and the allowances provided under section 7651b of this title to the owner or operator of each af- fected source under section 7651c of this title. Such a permit shall supersede any permit ap- plication and compliance plan submitted under paragraph (1). (4) Fees During the years 1995 through 1999 inclusive, no fee shall be required to be paid under sec- tion 7661a(b)(3) of this title or under section 7410(a)(2)(L) of this title with respect to emis- sions from any unit which is an affected unit under section 7651c of this title. (d) Second phase permits (1) To provide for permits for (A) new electric utility steam generating units required under section 7651b(e) of this title to have allowances, (B) affected units or sources under section 7651d of this title, and (C) existing units subject to ni- trogen oxide emission reductions under section 7651f of this title, each State in which one or more such units or sources are located shall sub- mit in accordance with subchapter V, a permit program for approval as provided by that sub- chapter. Upon approval of such program, for the units or sources subject to such approved pro- gram the Administrator shall suspend the issuance of permits as provided in subchapter V. (2) The owner or operator or the designated representative of each affected source under sec- tion 7651d of this title shall submit a permit ap- plication and compliance plan for that source to the permitting authority, not later than Janu- ary 1, 1996. (3) Not later than December 31, 1997, each State with an approved permit program shall issue permits to the owner or operator, or the designated representative of the owners and op- erators, of affected sources under section 7651d of this title that satisfy the requirements of subchapter V and this subchapter and that sub- mitted to such State a permit application and compliance plan pursuant to paragraph (2). In the case of a State without an approved permit program by July 1, 1996, the Administrator shall, not later than January 1, 1998, issue a per- mit to the owner or operator or the designated representative of each such affected source. In the case of affected sources for which applica- tions and plans are timely received under para- graph (2), the permit application and the compli- ance plan, including amendments thereto, shall be binding on the owner or operator or the des- ignated representative of the owners or opera- tors and shall be enforceable as a permit for pur- poses of this subchapter and subchapter V until a permit is issued by the permitting authority 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-