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US (United States) Code. Title 42. Chapter 85: Air pollution preservation and control

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-CITE-

42 USC Sec. 7651a 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651a. Definitions

-STATUTE-

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 requirements or limitations under this

subchapter.

(3) The term "allowance" means an authorization, 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 commercial operation

prior to January 1, 1985, the baseline shall be the annual

average quantity of mmBtu's consumed in fuel during calendar

years 1985, 1986, and 1987, as recorded by the Department of

Energy pursuant 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

Assessment Program (NAPAP) Emissions Inventory, Version 2,

National Utility Reference File (NURF) or in a corrected data

base as established by the Administrator pursuant to paragraph

(3). For nonutility units, the baseline is the NAPAP Emissions

Inventory, Version 2. The Administrator, in the Administrator's

sole discretion, may exclude periods during which a unit is

shutdown for a continuous period of four calendar months or

longer, and make appropriate adjustments under this paragraph.

Upon petition of the owner or operator of any unit, the

Administrator may make appropriate baseline adjustments for

accidents that caused prolonged outages.

(B) For any other nonutility unit that is not included in the

NAPAP Emissions Inventory, Version 2, or a corrected data base

as established by the Administrator pursuant to paragraph (3),

the baseline shall be the annual average quantity, in mmBtu

consumed in fuel by that unit, as calculated pursuant to a

method which the administrator shall prescribe by regulation to

be promulgated not later than eighteen months after November

15, 1990.

motion, by December 31, 1991, supplement data needed in support

of this subchapter and correct any factual errors 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 (!1)

subchapter. Such corrections shall not be subject to judicial

review, nor shall the failure of the Administrator to correct

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 subchapter, either -

(A) a statement that the source will comply with all

applicable requirements under this subchapter, or

(B) where applicable, a schedule and description of the

method or methods for compliance and certification by the owner

or operator that the source is in compliance with the

requirements of this subchapter.

(7) The term "continuous emission monitoring 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 emissions and flow (expressed in

pounds per million British thermal units (lbs/mmBtu), pounds per

hour (lbs/hr) or such other form as the Administrator 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 commenced

commercial operation before November 15, 1990, which is modified,

reconstructed, or repowered after November 15, 1990, shall

continue to be an existing unit for the purposes of this

subchapter. For the purposes of this subchapter, existing units

shall not include simple combustion turbines, or units which

serve a generator with a nameplate capacity of 25MWe or less.

(9) The term "generator" means a device that produces

electricity and which is reported as a generating unit pursuant

to Department 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 (!2) of title III of the

Act.

(12) The term "repowering" means replacement of an existing

coal-fired boiler with one of the following clean coal

technologies: atmospheric or pressurized fluidized bed

combustion, integrated gasification combined cycle,

magnetohydrodynamics, direct and indirect coal-fired turbines,

integrated gasification fuel cells, or as determined by the

Administrator, in consultation with the Secretary of Energy, a

derivative of one or more of these technologies, and any other

technology capable of controlling multiple combustion emissions

simultaneously with improved boiler or generation efficiency and

with significantly greater waste reduction relative to the

performance of technology in widespread commercial use as of

November 15, 1990. Notwithstanding 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 awarded clean coal technology demonstration

funding 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 Columbia.

(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 sulfur dioxide or nitrogen oxides emission

rate in pounds per million Btu as reported in the NAPAP Emissions

Inventory, Version 2, National Utility Reference File. For

nonutility units, the term "actual 1985 emission rate" 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 generator 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.

"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 supplies, 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

nitrogen, applicable to the unit in 1985 or the limitation

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 million Btu, or the averaging period of that

emissions 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

allowable 1985 emissions rate.

(19) The term "qualifying phase I technology" means a

technological system of continuous emission reduction which

achieves a 90 percent reduction in emissions of sulfur dioxide

from the emissions that would have resulted from the use of fuels

which were not subject to treatment prior to combustion.

(20) The term "alternative method of compliance" means a method

of compliance in accordance with one or more of the following

authorities:

(A) a substitution plan submitted and approved in accordance

with subsections (!3) 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

technology as determined by the Administrator in accordance

with that section; or

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

undertaken a continuous program of construction or that an owner

or operator has entered into a contractual obligation to

undertake and complete, within a reasonable time, a continuous

program of construction.

(22) The term "commenced commercial operation" means to have

begun to generate electricity for sale.

(23) The term "construction" means fabrication, erection, or

installation of an affected unit.

(24) The term "industrial source" means a unit that does not

serve a generator that produces electricity, a "nonutility unit"

as defined in this section, or a process source as defined in

section 7651i(e) (!4) 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 authorized by the owner or operator of a unit

to represent the owner or operator in matters pertaining to the

holding, transfer, or disposition of allowances allocated to a

unit, and the submission of and compliance with permits, permit

applications, and compliance plans for the unit.

(27) The term "life-of-the-unit, firm power contractual

arrangement" means a unit participation power sales agreement

under which a utility or industrial customer reserves, or is

entitled to receive, a specified amount or percentage of capacity

and associated energy generated by a specified generating unit

(or units) and pays its proportional amount of such unit's total

costs, pursuant to a contract either -

(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

percent of the economic useful life of the unit determined as

of the time the unit was built, with option rights to purchase

or re-lease some portion of the capacity and associated energy

generated by the unit (or units) at the end of the period.

(28) The term "basic Phase II allowance allocations" 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 allocations" 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, subsections (a)(2), (b)(2), (c)(4), (d)(3)

(except as otherwise provided therein), and (h)(2) of section

7651d of this title, and section 7651e of this title.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 402, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2585.)

-REFTEXT-

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 (Sec. 7661 et seq.) of

this chapter.

-COD-

CODIFICATION

Another section 402 of act July 14, 1955, as added by Pub. L.

91-604, Sec. 14, Dec. 31, 1970, 84 Stat. 1709, is classified to

section 7641 of this title.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651c, 7651g, 7651h of

this title.

-FOOTNOTE-

(!1) So in original. Probably should be "this".

(!2) See References in Text note below.

(!3) So in original. Probably should be "section".

(!4) So in original. Probably should be section "7651i(d)".

-End-

-CITE-

42 USC Sec. 7651b 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651b. Sulfur dioxide allowance program for existing and new

units

-STATUTE-

(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

representative of the owner or operator of each affected unit at an

affected source in accordance with this subchapter, in an amount

equal to the annual tonnage emission limitation calculated under

section 7651c, 7651d, 7651e, 7651h, or 7651i of this title except

as otherwise specifically provided 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 allowances to emit sulfur dioxide

pursuant to section 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 million 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 allowances, following the year for which they were allocated.

If necessary to meeting the restrictions imposed in the preceding

sentence, the Administrator 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

allowances 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

terminate or otherwise affect the allocation of allowances pursuant

to section 7651c or 7651d of this title to which the unit is

entitled. Allowances shall be allocated by the Administrator

without cost to the recipient, except for allowances sold by the

Administrator pursuant to section 7651o of this title. Not later

than December 31, 1991, the Administrator shall publish a proposed

list of the basic Phase II allowance allocations, the Phase II

bonus allowance allocations and, if applicable, allocations

pursuant to section 7651d(a)(3) of this title for each unit subject

to the emissions limitation requirements of section 7651d of this

title for the year 2000 and the year 2010. After notice and

opportunity for public 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 operator of an existing unit subject to

the requirements 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 Administrator no later than March

31, 1991. Such notification shall be used as the basis for

estimating the basic Phase II allowances under this subsection.

Prior to June 1, 1998, the Administrator 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 extensions granted pursuant to

section 7651h of this title on such allocations. Any person who may

make an election concerning the amount of allowances to be

allocated to a unit or units shall make such election and so inform

the Administrator 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 Administrator, 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 representatives of the owners or operators of

affected sources under this subchapter and any other person who

holds such allowances, as provided by the allowance system

regulations to be promulgated by the Administrator not later than

eighteen months after November 15, 1990. Such regulations shall

establish the allowance system prescribed under this section,

including, but not limited to, requirements for the allocation,

transfer, and use of allowances under this subchapter. 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 allowances, and for such unused allowances

to be carried forward and added to allowances allocated in

subsequent years, including allowances allocated to units subject

to Phase I requirements (as described in section 7651c of this

title) which are applied to emissions limitations requirements in

Phase II (as described in section 7651d of this title). Transfers

of allowances shall not be effective until written certification of

the transfer, signed by a responsible official of each party to the

transfer, is received and recorded by the Administrator. Such

regulations shall permit the transfer of allowances prior to the

issuance of such allowances. Recorded pre-allocation transfers

shall be deducted by the Administrator from the number of

allowances which would otherwise be allocated to the transferor,

and added to those allowances allocated to the transferee.

Pre-allocation transfers shall not affect the prohibition contained

in this subsection against the use of allowances prior to the year

for which they are allocated.

Not later than January 1, 1994, the Administrator shall furnish

to the Congress a study evaluating the environmental and economic

consequences of amending this subchapter to permit trading sulfur

dioxide allowances for nitrogen oxides allowances.

(d) Allowance tracking system

(1) The Administrator shall promulgate, not later than 18 months

after November 15, 1990, a system for issuing, recording, and

tracking allowances, which shall specify all necessary procedures

and requirements for an orderly and competitive functioning of the

allowance system. All allowance allocations and transfers shall,

upon recordation by the Administrator, be deemed a part of each

unit's permit requirements pursuant to section 7651g of this title,

without any further permit review and revision.

(2) In order to insure electric reliability, such regulations

shall not prohibit or affect temporary increases and decreases in

emissions within utility systems, power pools, or utilities

entering into allowance pool agreements, that result from their

operations, including emergencies and central dispatch, and such

temporary emissions increases and decreases shall not require

transfer of allowances among units nor shall it require

recordation. The owners or operators of such units shall act

through a designated representative. Notwithstanding the preceding

sentence, the total tonnage of emissions in any calendar year

(calculated at the end thereof) from all units in such a utility

system, power pool, or allowance pool agreements shall not exceed

the total allowances for such units for the calendar year

concerned.

(e) New utility units

After January 1, 2000, it shall be unlawful for a new utility

unit to emit an annual tonnage of sulfur dioxide in excess of the

number of allowances to emit held for the unit by the unit's owner

or operator. Such new utility units shall not be eligible for an

allocation of sulfur dioxide allowances under subsection (a)(1) of

this section, unless the unit is subject to the provisions of

subsection (g)(2) or (3) of section 7651d of this title. New

utility units may obtain allowances from any person, in accordance

with this subchapter. The owner or operator of any new utility unit

in violation of this subsection shall be liable for fulfilling the

obligations specified in section 7651j of this title.

(f) Nature of allowances

An allowance allocated under this subchapter is a limited

authorization to emit sulfur dioxide in accordance with the

provisions of this subchapter. Such allowance does not constitute a

property right. Nothing in this subchapter or in any other

provision of law shall be construed to limit the authority of the

United States to terminate or limit such authorization. Nothing in

this section relating to allowances shall be construed as affecting

the application of, or compliance with, any other provision of this

chapter to an affected unit or source, including the provisions

related to applicable National Ambient Air Quality Standards and

State implementation plans. Nothing in this section shall be

construed as requiring a change of any kind in any State law

regulating electric utility rates and charges or affecting any

State law regarding such State regulation or as limiting State

regulation (including any prudency review) under such a State law.

Nothing in this section shall be construed as modifying the Federal

Power Act [16 U.S.C. 791a et seq.] or as affecting the authority of

the Federal Energy Regulatory Commission under that Act. Nothing in

this subchapter shall be construed to interfere with or impair any

program for competitive bidding for power supply in a State in

which such program is established. Allowances, once allocated to a

person by the Administrator, may be received, held, and temporarily

or permanently transferred in accordance with this subchapter and

the regulations of the Administrator without regard to whether or

not a permit is in effect under subchapter V of this chapter or

section 7651g of this title with respect to the unit for which such

allowance was originally allocated and recorded. Each permit under

this subchapter and each permit issued under subchapter V of this

chapter for any affected unit shall provide that the affected unit

may not emit an annual tonnage of sulfur dioxide in excess of the

allowances held for that unit.

(g) Prohibition

It shall be unlawful for any person to hold, use, or transfer any

allowance allocated under this subchapter, except in accordance

with regulations promulgated by the Administrator. It shall be

unlawful for any affected unit to emit sulfur dioxide in excess of

the number of allowances held for that unit for that year by the

owner or operator of the unit. Upon the allocation of allowances

under this subchapter, the prohibition contained in the preceding

sentence shall supersede any other emission limitation applicable

under this subchapter to the units for which such allowances are

allocated. Allowances may not be used prior to the calendar year

for which they are allocated. Nothing in this section or in the

allowance system regulations shall relieve the Administrator of the

Administrator's permitting, monitoring and enforcement obligations

under this chapter, nor relieve affected sources of their

requirements and liabilities under this chapter.

(h) Competitive bidding for power supply

Nothing in this subchapter shall be construed to interfere with

or impair any program for competitive bidding for power supply in a

State in which such program is established.

(i) Applicability of antitrust laws

(1) Nothing in this section affects -

(A) the applicability of the antitrust laws to the transfer,

use, or sale of allowances, or

(B) the authority of the Federal Energy Regulatory Commission

under any provision of law respecting unfair methods of

competition or anticompetitive acts or practices.

(2) As used in this section, "antitrust laws" means those Acts

set forth in section 12 of title 15.

(j) Public Utility Holding Company Act

The acquisition or disposition of allowances pursuant to this

subchapter including the issuance of securities or the undertaking

of any other financing transaction in connection with such

allowances shall not be subject to the provisions of the Public

Utility Holding Company Act of 1935 [15 U.S.C. 79 et seq.].

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 403, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2589.)

-REFTEXT-

REFERENCES IN TEXT

The Federal Power Act, referred to in subsec. (f), is act June

10, 1920, ch. 285, 41 Stat. 1063, as amended, which is classified

generally to chapter 12 (Sec. 791a et seq.) of Title 16,

Conservation. For complete classification of this Act to the Code,

see section 791a of Title 16 and Tables.

The Public Utility Holding Company Act of 1935, referred to in

subsec. (j), is act Aug. 26, 1935, ch. 687, title I, 49 Stat. 838,

as amended, which is classified generally to chapter 2C (Sec. 79 et

seq.) of Title 15, Commerce and Trade. For complete classification

of this Act to the Code, see section 79 of Title 15 and Tables.

-COD-

CODIFICATION

Another section 403 of act July 14, 1955, as added by Pub. L.

91-604, Sec. 14, Dec. 31, 1970, 84 Stat. 1710, is classified to

section 7642 of this title.

-MISC1-

FOSSIL FUEL USE

Section 402 of title IV of Pub. L. 101-549 provided that:

"(a) Contracts for Hydroelectric Energy. - Any person who, after

the date of the enactment of the Clean Air Act Amendments of 1990

[Nov. 15, 1990], enters into a contract under which such person

receives hydroelectric energy in return for the provision of

electric energy by such person shall use allowances held by such

person as necessary to satisfy such person's obligations under such

contract.

"(b) Federal Power Marketing Administration. - A Federal Power

Marketing Administration shall not be subject to the provisions and

requirements of this title [enacting this subchapter, amending

sections 7410, 7411, and 7479 of this title, and enacting

provisions set out as notes under sections 7403, 7411, and 7651 of

this title] with respect to electric energy generated by

hydroelectric facilities and marketed by such Power Marketing

Administration. Any person who sells or provides electric energy to

a Federal Power Marketing Administration shall comply with the

provisions and requirements of this title."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651c, 7651d,

7651e, 7651g, 7651h, 7651i, 7651j of this title.

-FOOTNOTE-

(!1) So in original. No pars. (2) and (3) have been enacted.

-End-

-CITE-

42 USC Sec. 7651c 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651c. Phase I sulfur dioxide requirements

-STATUTE-

(a) Emission limitations

(1) After January 1, 1995, each source that includes one or more

affected units listed in table A is an affected source under this

section. After January 1, 1995, it shall be unlawful for any

affected unit (other than an eligible phase I unit under subsection

(d)(2) of this section) to emit sulfur dioxide in excess of the

tonnage limitation stated as a total number of allowances in table

A for phase I, unless (A) the emissions reduction requirements

applicable to such unit have been achieved pursuant to subsection

(b) or (d) of this section, or (B) the owner or operator of such

unit holds allowances to emit not less than the unit's total annual

emissions, except that, after January 1, 2000, the emissions

limitations established in this section shall be superseded by

those established in section 7651d of this title. The owner or

operator of any unit in violation of this section shall be fully

liable for such violation including, but not limited to, liability

for fulfilling the obligations specified in section 7651j of this

title.

(2) Not later than December 31, 1991, the Administrator shall

determine the total tonnage of reductions in the emissions of

sulfur dioxide from all utility units in calendar year 1995 that

will occur as a result of compliance with the emissions limitation

requirements of this section, and shall establish a reserve of

allowances equal in amount to the number of tons determined thereby

not to exceed a total of 3.50 million tons. In making such a

determination, the Administrator shall compute for each unit

subject to the emissions limitation requirements of this section

the difference between:

(A) the product of its baseline multiplied by the lesser of

each unit's allowable 1985 emissions rate and its actual 1985

emissions rate, divided by 2,000, and

(B) the product of each unit's baseline multiplied by 2.50

lbs/mmBtu divided by 2,000,

and sum the computations. The Administrator shall adjust the

foregoing calculation to reflect projected calendar year 1995

utilization of the units subject to the emissions limitations of

this subchapter that the Administrator finds would have occurred in

the absence of the imposition of such requirements. Pursuant to

subsection (d) of this section, the Administrator shall allocate

allowances from the reserve established hereinunder until the

earlier of such time as all such allowances in the reserve are

allocated or December 31, 1999.

(3) In addition to allowances allocated pursuant to paragraph

(1), in each calendar year beginning in 1995 and ending in 1999,

inclusive, the Administrator shall allocate for each unit on Table

A that is located in the States of Illinois, Indiana, or Ohio

(other than units at Kyger Creek, Clifty Creek and Joppa Steam),

allowances in an amount equal to 200,000 multiplied by the unit's

pro rata share of the total number of allowances allocated for all

units on Table A in the 3 States (other than units at Kyger Creek,

Clifty Creek, and Joppa Steam) pursuant to paragraph (1). Such

allowances shall be excluded from the calculation of the reserve

under paragraph (2).

(b) Substitutions

The owner or operator of an affected unit under subsection (a) of

this section may include in its section 7651g of this title permit

application and proposed compliance plan a proposal to reassign, in

whole or in part, the affected unit's sulfur dioxide reduction

requirements to any other unit(s) under the control of such owner

or operator. Such proposal shall specify -

(1) the designation of the substitute unit or units to which

any part of the reduction obligations of subsection (a) of this

section shall be required, in addition to, or in lieu of, any

original affected units designated under such subsection;

(2) the original affected unit's baseline, the actual and

allowable 1985 emissions rate for sulfur dioxide, and the

authorized annual allowance allocation stated in table A;

(3) calculation of the annual average tonnage for calendar

years 1985, 1986, and 1987, emitted by the substitute unit or

units, based on the baseline for each unit, as defined in section

7651a(d) (!1) of this title, multiplied by the lesser of the

unit's actual or allowable 1985 emissions rate;

(4) the emissions rates and tonnage limitations that would be

applicable to the original and substitute affected units under

the substitution proposal;

(5) documentation, to the satisfaction of the Administrator,

that the reassigned tonnage limits will, in total, achieve the

same or greater emissions reduction than would have been achieved

by the original affected unit and the substitute unit or units

without such substitution; and

(6) such other information as the Administrator may require.

(1) The Administrator shall take final action on such

substitution proposal in accordance with section 7651g(c) of this

title if the substitution proposal fulfills the requirements of

this subsection. The Administrator may approve a substitution

proposal in whole or in part and with such modifications or

conditions as may be consistent with the orderly functioning of the

allowance system and which will ensure the emissions reductions

contemplated by this subchapter. If a proposal does not meet the

requirements of subsection (b) of this section, the Administrator

shall disapprove it. The owner or operator of a unit listed in

table A shall not substitute another unit or units without the

prior approval of the Administrator.

(2) Upon approval of a substitution proposal, each substitute

unit, and each source with such unit, shall be deemed affected

under this subchapter, and the Administrator shall issue a permit

to the original and substitute affected source and unit in

accordance with the approved substitution plan and section 7651g of

this title. The Administrator shall allocate allowances for the

original and substitute affected units in accordance with the

approved substitution proposal pursuant to section 7651b of this

title. It shall be unlawful for any source or unit that is

allocated allowances pursuant to this section to emit sulfur

dioxide in excess of the emissions limitation provided for in the

approved substitution permit and plan unless the owner or operator

of each unit governed by the permit and approved substitution plan

holds allowances to emit not less than the units total annual

emissions. The owner or operator of any original or substitute

affected unit operated in violation of this subsection shall be

fully liable for such violation, including liability for fulfilling

the obligations specified in section 7651j of this title. If a

substitution proposal is disapproved, the Administrator shall

allocate allowances to the original affected unit or units in

accordance with subsection (a) of this section.

(d) Eligible phase I extension units

(1) The owner or operator of any affected unit subject to an

emissions limitation requirement under this section may petition

the Administrator in its permit application under section 7651g of

this title for an extension of 2 years of the deadline for meeting

such requirement, provided that the owner or operator of any such

unit holds allowances to emit not less than the unit's total annual

emissions for each of the 2 years of the period of extension. To

qualify for such an extension, the affected unit must either employ

a qualifying phase I technology, or transfer its phase I emissions

reduction obligation to a unit employing a qualifying phase I

technology. Such transfer shall be accomplished in accordance with

a compliance plan, submitted and approved under section 7651g of

this title, that shall govern operations at all units included in

the transfer, and that specifies the emissions reduction

requirements imposed pursuant to this subchapter.

(2) Such extension proposal shall -

(A) specify the unit or units proposed for designation as an

eligible phase I extension unit;

(B) provide a copy of an executed contract, which may be

contingent upon the Administrator approving the proposal, for the

design engineering, and construction of the qualifying phase I

technology for the extension unit, or for the unit or units to

which the extension unit's emission reduction obligation is to be

transferred;

emissions rate, allowable 1985 emissions rate, and projected

utilization for calendar years 1995 through 1999;

(D) require CEMS on both the eligible phase I extension unit or

units and the transfer unit or units beginning no later than

January 1, 1995; and

(E) specify the emission limitation and number of allowances

expected to be necessary for annual operation after the

qualifying phase I technology has been installed.

(3) The Administrator shall review and take final action on each

extension proposal in order of receipt, consistent with section

7651g of this title, and for an approved proposal shall designate

the unit or units as an eligible phase I extension unit. The

Administrator may approve an extension proposal in whole or in

part, and with such modifications or conditions as may be

necessary, consistent with the orderly functioning of the allowance

system, and to ensure the emissions reductions contemplated by the

(!2) subchapter.

(4) In order to determine the number of proposals eligible for

allocations from the reserve under subsection (a)(2) of this

section and the number of allowances remaining available after each

proposal is acted upon, the Administrator shall reduce the total

number of allowances remaining available in the reserve by the

number of allowances calculated according to subparagraphs (A), (B)

and (C) until either no allowances remain available in the reserve

for further allocation or all approved proposals have been acted

upon. If no allowances remain available in the reserve for further

allocation before all proposals have been acted upon by the

Administrator, any pending proposals shall be disapproved. The

Administrator shall calculate allowances equal to -

(A) the difference between the lesser of the average annual

emissions in calendar years 1988 and 1989 or the projected

emissions tonnage for calendar year 1995 of each eligible phase I

extension unit, as designated under paragraph (3), and the

product of the unit's baseline multiplied by an emission rate of

2.50 lbs/mmBtu, divided by 2,000;

(B) the difference between the lesser of the average annual

emissions in calendar years 1988 and 1989 or the projected

emissions tonnage for calendar year 1996 of each eligible phase I

extension unit, as designated under paragraph (3), and the

product of the unit's baseline multiplied by an emission rate of

2.50 lbs/mmBtu, divided by 2,000; and

multiplied by an emission rate of 1.20 lbs/mmBtu, divided by

2,000, exceeds (ii) the tonnage level specified under

subparagraph (E) of paragraph (2) of this subsection multiplied

by a factor of 3.

(5) Each eligible Phase I extension unit shall receive allowances

determined under subsection (a)(1) or (c) of this section. In

addition, for calendar year 1995, the Administrator shall allocate

to each eligible Phase I extension unit, from the allowance reserve

created pursuant to subsection (a)(2) of this section, allowances

equal to the difference between the lesser of the average annual

emissions in calendar years 1988 and 1989 or its projected

emissions tonnage for calendar year 1995 and the product of the

unit's baseline multiplied by an emission rate of 2.50 lbs/mmBtu,

divided by 2,000. In calendar year 1996, the Administrator shall

allocate for each eligible unit, from the allowance reserve created

pursuant to subsection (a)(2) of this section, allowances equal to

the difference between the lesser of the average annual emissions

in calendar years 1988 and 1989 or its projected emissions tonnage

for calendar year 1996 and the product of the unit's baseline

multiplied by an emission rate of 2.50 lbs/mmBtu, divided by 2,000.

It shall be unlawful for any source or unit subject to an approved

extension plan under this subsection to emit sulfur dioxide in

excess of the emissions limitations provided for in the permit and

approved extension plan, unless the owner or operator of each unit

governed by the permit and approved plan holds allowances to emit

not less than the unit's total annual emissions.

(6) In addition to allowances specified in paragraph (5), the

Administrator shall allocate for each eligible Phase I extension

unit employing qualifying Phase I technology, for calendar years

1997, 1998, and 1999, additional allowances, from any remaining

allowances in the reserve created pursuant to subsection (a)(2) of

this section, following the reduction in the reserve provided for

in paragraph (4), not to exceed the amount by which (A) the product

of each eligible unit's baseline times an emission rate of 1.20

lbs/mmBtu, divided by 2,000, exceeds (B) the tonnage level

specified under subparagraph (E) of paragraph (2) of this

subsection.

(7) After January 1, 1997, in addition to any liability under

this chapter, including under section 7651j of this title, if any

eligible phase I extension unit employing qualifying phase I

technology or any transfer unit under this subsection emits sulfur

dioxide in excess of the annual tonnage limitation specified in the

extension plan, as approved in paragraph (3) of this subsection,

the Administrator shall, in the calendar year following such

excess, deduct allowances equal to the amount of such excess from

such unit's annual allowance allocation.

(e) Allocation of allowances

(1) In the case of a unit that receives authorization from the

Governor of the State in which such unit is located to make

reductions in the emissions of sulfur dioxide prior to calendar

year 1995 and that is part of a utility system that meets the

following requirements: (A) the total coal-fired generation within

the utility system as a percentage of total system generation

decreased by more than 20 percent between January 1, 1980, and

December 31, 1985; and (B) the weighted capacity factor of all

coal-fired units within the utility system averaged over the period

from January 1, 1985, through December 31, 1987, was below 50

percent, the Administrator shall allocate allowances under this

paragraph for the unit pursuant to this subsection. The

Administrator shall allocate allowances for a unit that is an

affected unit pursuant to section 7651d of this title (but is not

also an affected unit under this section) and part of a utility

system that includes 1 or more affected units under section 7651d

of this title for reductions in the emissions of sulfur dioxide

made during the period 1995-1999 if the unit meets the requirements

of this subsection and the requirements of the preceding sentence,

except that for the purposes of applying this subsection to any

such unit, the prior year concerned as specified below, shall be

any year after January 1, 1995 but prior to January 1, 2000.

(2) In the case of an affected unit under this section described

in subparagraph (A), the allowances allocated under this subsection

for early reductions in any prior year may not exceed the amount

which (A) the product of the unit's baseline multiplied by the

unit's 1985 actual sulfur dioxide emission rate (in lbs. per

mmBtu), divided by 2,000, exceeds (B) the allowances specified for

such unit in Table A. In the case of an affected unit under section

7651d of this title described in subparagraph (A), the allowances

awarded under this subsection for early reductions in any prior

year may not exceed the amount by which (i) the product of the

quantity of fossil fuel consumed by the unit (in mmBtu) in the

prior year multiplied by the lesser of 2.50 or the most stringent

emission rate (in lbs. per mmBtu) applicable to the unit under the

applicable implementation plan, divided by 2,000, exceeds (ii) the

unit's actual tonnage of sulfur dioxide emission for the prior year

concerned. Allowances allocated under this subsection for units

referred to in subparagraph (A) may be allocated only for emission

reductions achieved as a result of physical changes or changes in

the method of operation made after November 15, 1990, including

changes in the type or quality of fossil fuel consumed.

(3) In no event shall the provisions of this paragraph be

interpreted as an event of force majeur or a commercial

impractibility (!3) or in any other way as a basis for excused

nonperformance by a utility system under a coal sales contract in

effect before November 15, 1990.

TABLE A. - AFFECTED SOURCES AND UNITS IN PHASE I AND THEIR SULFUR

DIOXIDE ALLOWANCES (TONS)

--------------------------------------------------------------------

State Plant Name Gener Phase I

ator Allowa

nces

--------------------------------------------------------------------

Alabama Colbert 1 13,570

15,310

15,400

15,410

37,180

E.C. Gaston 1 18,100

18,540

18,310

19,280

59,840

Florida Big Bend 1 28,410

27,100

26,740

Crist 6 19,200

31,680

Georgia Bowen 1 56,320

54,770

71,750

71,740

Hammond 1 8,780

9,220

8,910

37,640

J. McDonough 1 19,910

20,600

Wansley 1 70,770

65,430

Yates 1 7,210

7,040

6,950

8,910

9,410

24,760

21,480

Illinois Baldwin 1 42,010

44,420

42,550

Coffeen 1 11,790

35,670

Grand Tower 4 5,910

Hennepin 2 18,410

Joppa Steam 1 12,590

10,770

12,270

11,360

11,420

10,620

Kincaid 1 31,530

33,810

Meredosia 3 13,890

Vermilion 2 8,880

Indiana Bailly 7 11,180

15,630

Breed 1 18,500

Cayuga 1 33,370

34,130

Clifty Creek 1 20,150

19,810

20,410

20,080

19,360

20,380

E. W. Stout 5 3,880

4,770

23,610

F. B. Culley 2 4,290

16,970

F. E. Ratts 1 8,330

8,480

Gibson 1 40,400

41,010

41,080

40,320

H. T. Pritchard 6 5,770

Michigan City 12 23,310

Petersburg 1 16,430

32,380

R. Gallagher 1 6,490

7,280

6,530

7,650

Tanners Creek 4 24,820

Wabash River 1 4,000

2,860

3,750

3,670

12,280

Warrick 4 26,980

Iowa Burlington 1 10,710

Des Moines 7 2,320

George Neal 1 1,290

M.L. Kapp 2 13,800

Prairie Creek 4 8,180

Riverside 5 3,990

Kansas Quindaro 2 4,220

Kentucky Coleman 1 11,250

12,840

12,340

Cooper 1 7,450

15,320

E.W. Brown 1 7,110

10,910

26,100

Elmer Smith 1 6,520

14,410

Ghent 1 28,410

Green River 4 7,820

H.L. Spurlock 1 22,780

Henderson II 1 13,340

12,310

Paradise 3 59,170

Shawnee 10 10,170

Maryland Chalk Point 1 21,910

24,330

C. P. Crane 1 10,330

9,230

Morgantown 1 35,260

38,480

Michigan J. H. Campbell 1 19,280

23,060

Minnesota High Bridge 6 4,270

Mississippi Jack Watson 4 17,910

36,700

Missouri Asbury 1 16,190

James River 5 4,850

Labadie 1 40,110

37,710

40,310

35,940

Montrose 1 7,390

8,200

10,090

New Madrid 1 28,240

32,480

Sibley 3 15,580

Sioux 1 22,570

23,690

Thomas Hill 1 10,250

19,390

New Hampshire Merrimack 1 10,190

22,000

New Jersey B.L. England 1 9,060

11,720

New York Dunkirk 3 12,600

14,060

Greenidge 4 7,540

Milliken 1 11,170

12,410

Northport 1 19,810

24,110

26,480

Port Jefferson 3 10,470

12,330

Ohio Ashtabula 5 16,740

Avon Lake 8 11,650

30,480

Cardinal 1 34,270

38,320

Conesville 1 4,210

4,890

5,500

48,770

Eastlake 1 7,800

8,640

10,020

14,510

34,070

Edgewater 4 5,050

Gen. J.M. Gavin 1 79,080

80,560

Kyger Creek 1 19,280

18,560

17,910

18,710

18,740

Miami Fort 5 760

11,380

38,510

Muskingum River 1 14,880

14,170

13,950

11,780

40,470

Niles 1 6,940

9,100

Picway 5 4,930

R.E. Burger 3 6,150

10,780

12,430

W.H. Sammis 5 24,170

39,930

43,220

W.C. Beckjord 5 8,950

23,020

Pennsylvania Armstrong 1 14,410

15,430

Brunner Island 1 27,760

31,100

53,820

Cheswick 1 39,170

Conemaugh 1 59,790

66,450

Hatfield's Ferry 1 37,830

37,320

40,270

Martins Creek 1 12,660

12,820

Portland 1 5,940

10,230

Shawville 1 10,320

10,320

14,220

14,070

Sunbury 3 8,760

11,450

Tennessee Allen 1 15,320

16,770

15,670

Cumberland 1 86,700

94,840

Gallatin 1 17,870

17,310

20,020

21,260

Johnsonville 1 7,790

8,040

8,410

7,990

8,240

7,890

8,980

8,700

7,080

7,550

West Virginia Albright 3 12,000

Fort Martin 1 41,590

41,200

Harrison 1 48,620

46,150

41,500

Kammer 1 18,740

19,460

17,390

Mitchell 1 43,980

45,510

Mount Storm 1 43,720

35,580

42,430

Wisconsin Edgewater 4 24,750

La Crosse/Genoa 3 22,700

Nelson Dewey 1 6,010

6,680

N. Oak Creek 1 5,220

5,140

5,370

6,320

Pulliam 8 7,510

S. Oak Creek 5 9,670

12,040

16,180

15,790

--------------------------------------------------------------------

(f) Energy conservation and renewable energy

(1) Definitions

As used in this subsection:

(A) Qualified energy conservation measure

The term "qualified energy conservation measure" means a cost

effective measure, as identified by the Administrator in

consultation with the Secretary of Energy, that increases the

efficiency of the use of electricity provided by an electric

utility to its customers.

(B) Qualified renewable energy

The term "qualified renewable energy" means energy derived

from biomass, solar, geothermal, or wind as identified by the

Administrator in consultation with the Secretary of Energy.

The term "electric utility" means any person, State agency,

or Federal agency, which sells electric energy.

(2) Allowances for emissions avoided through energy conservation

and renewable energy

(A) In general

The regulations under paragraph (4) of this subsection shall

provide that for each ton of sulfur dioxide emissions avoided

by an electric utility, during the applicable period, through

the use of qualified energy conservation measures or qualified

renewable energy, the Administrator shall allocate a single

allowance to such electric utility, on a

first-come-first-served basis from the Conservation and

Renewable Energy Reserve established under subsection (g) of

this section, up to a total of 300,000 allowances for

allocation from such Reserve.

(B) Requirements for issuance

The Administrator shall allocate allowances to an electric

utility under this subsection only if all of the following

requirements are met:

(i) Such electric utility is paying for the qualified

energy conservation measures or qualified renewable energy

directly or through purchase from another person.

(ii) The emissions of sulfur dioxide avoided through the

use of qualified energy conservation measures or qualified

renewable energy are quantified in accordance with

regulations promulgated by the Administrator under this

subsection.

(iii)(I) Such electric utility has adopted and is

implementing a least cost energy conservation and electric

power plan which evaluates a range of resources, including

new power supplies, energy conservation, and renewable energy

resources, in order to meet expected future demand at the

lowest system cost.

(II) The qualified energy conservation measures or

qualified renewable energy, or both, are consistent with that

plan.

(III) Electric utilities subject to the jurisdiction of a

State regulatory authority must have such plan approved by

such authority. For electric utilities not subject to the

jurisdiction of a State regulatory authority such plan shall

be approved by the entity with rate-making authority for such

utility.

(iv) In the case of qualified energy conservation measures

undertaken by a State regulated electric utility, the

Secretary of Energy certifies that the State regulatory

authority with jurisdiction over the electric rates of such

electric utility has established rates and charges which

ensure that the net income of such electric utility after

implementation of specific cost effective energy conservation

measures is at least as high as such net income would have

been if the energy conservation measures had not been

implemented. Upon the date of any such certification by the

Secretary of Energy, all allowances which, but for this

paragraph, would have been allocated under subparagraph (A)

before such date, shall be allocated to the electric utility.

This clause is not a requirement for qualified renewable

energy.

(v) Such utility or any subsidiary of the utility's holding

company owns or operates at least one affected unit.

Allowances under this subsection shall be allocated only with

respect to kilowatt hours of electric energy saved by qualified

energy conservation measures or generated by qualified

renewable energy after January 1, 1992 and before the earlier

of (i) December 31, 2000, or (ii) the date on which any

electric utility steam generating unit owned or operated by the

electric utility to which the allowances are allocated becomes

subject to this subchapter (including those sources that elect

to become affected by this subchapter, pursuant to section

7651i of this title).

(D) Determination of avoided emissions

(i) Application

In order to receive allowances under this subsection, an

electric utility shall make an application which -

(I) designates the qualified energy conservation measures

implemented and the qualified renewable energy sources used

for purposes of avoiding emissions,(!4)

(II) calculates, in accordance with subparagraphs (F) and

(G), the number of tons of emissions avoided by reason of

the implementation of such measures or the use of such

renewable energy sources; and

(III) demonstrates that the requirements of subparagraph

(B) have been met.

Such application for allowances by a State-regulated electric

utility shall require approval by the State regulatory

authority with jurisdiction over such electric utility. The

authority shall review the application for accuracy and

compliance with this subsection and the rules under this

subsection. Electric utilities whose retail rates are not

subject to the jurisdiction of a State regulatory authority

shall apply directly to the Administrator for such approval.

(E) Avoided emissions from qualified energy conservation

measures

For the purposes of this subsection, the emission tonnage

deemed avoided by reason of the implementation of qualified

energy conservation measures for any calendar year shall be a

tonnage equal to the product of multiplying -

(i) the kilowatt hours that would otherwise have been

supplied by the utility during such year in the absence of

such qualified energy conservation measures, by

(ii) 0.004,

and dividing by 2,000.

(F) Avoided emissions from the use of qualified renewable

energy

The emissions tonnage deemed avoided by reason of the use of

qualified renewable energy by an electric utility for any

calendar year shall be a tonnage equal to the product of

multiplying -

(i) the actual kilowatt hours generated by, or purchased

from, qualified renewable energy, by

(ii) 0.004,

and dividing by 2,000.

(G) Prohibitions

(i) No allowances shall be allocated under this subsection

for the implementation of programs that are exclusively

informational or educational in nature.

(ii) No allowances shall be allocated for energy conservation

measures or renewable energy that were operational before

January 1, 1992.

(3) Savings provision

Nothing in this subsection precludes a State or State

regulatory authority from providing additional incentives to

utilities to encourage investment in demand-side resources.

(4) Regulations

Not later than 18 months after November 15, 1990, and in

conjunction with the regulations required to be promulgated under

subsections (b) and (c) of this section, the Administrator shall,

in consultation with the Secretary of Energy, promulgate

regulations under this subsection. Such regulations shall list

energy conservation measures and renewable energy sources which

may be treated as qualified energy conservation measures and

qualified renewable energy for purposes of this subsection.

Allowances shall only be allocated if all requirements of this

subsection and the rules promulgated to implement this subsection

are complied with. The Administrator shall review the

determinations of each State regulatory authority under this

subsection to encourage consistency from electric utility to

electric utility and from State to State in accordance with the

Administrator's rules. The Administrator shall publish the

findings of this review no less than annually.

(g) Conservation and Renewable Energy Reserve

The Administrator shall establish a Conservation and Renewable

Energy Reserve under this subsection. Beginning on January 1, 1995,

the Administrator may allocate from the Conservation and Renewable

Energy Reserve an amount equal to a total of 300,000 allowances for

emissions of sulfur dioxide pursuant to section 7651b of this

title. In order to provide 300,000 allowances for such reserve, in

each year beginning in calendar year 2000 and until calendar year

2009, inclusive, the Administrator shall reduce each unit's basic

Phase II allowance allocation on the basis of its pro rata share of

30,000 allowances. If allowances remain in the reserve after

January 2, 2010, the Administrator shall allocate such allowances

for affected units under section 7651d of this title on a pro rata

basis. For purposes of this subsection, for any unit subject to the

emissions limitation requirements of section 7651d of this title,

the term "pro rata basis" refers to the ratio which the reductions

made in such unit's allowances in order to establish the reserve

under this subsection bears to the total of such reductions for all

such units.

(h) Alternative allowance allocation for units in certain utility

systems with optional baseline

(1) Optional baseline for units in certain systems

In the case of a unit subject to the emissions limitation

requirements of this section which (as of November 15, 1990) -

(A) has an emission rate below 1.0 lbs/mmBtu,

(B) has decreased its sulfur dioxide emissions rate by 60

percent or greater since 1980, and

sulfur dioxide emissions rate for all fossil fueled-fired units

below 1.0 lbs/mmBtu,

at the election of the owner or operator of such unit, the unit's

baseline may be calculated (i) as provided under section 7651a(d)

(!5) of this title, or (ii) by utilizing the unit's average

annual fuel consumption at a 60 percent capacity factor. Such

election shall be made no later than March 1, 1991.

(2) Allowance allocation

Whenever a unit referred to in paragraph (1) elects to

calculate its baseline as provided in clause (ii) of paragraph

(1), the Administrator shall allocate allowances for the unit

pursuant to section 7651b(a)(1) of this title, this section, and

section 7651d of this title (as basic Phase II allowance

allocations) in an amount equal to the baseline selected

multiplied by the lower of the average annual emission rate for

such unit in 1989, or 1.0 lbs./mmBtu. Such allowance allocation

shall be in lieu of any allocation of allowances under this

section and section 7651d of this title.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 404, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2592.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651b, 7651d,

7651f, 7651g, 7651i, 7651j, 7651k, 7651o of this title.

-FOOTNOTE-

(!1) So in original. Probably should be section "7651a(4)".

(!2) So in original. Probably should be "this".

(!3) So in original. Probably should be "impracticability".

(!4) So in original. The comma probably should be a semicolon.

(!5) So in original. Probably should be section "7651a(4)".

-End-

-CITE-

42 USC Sec. 7651d 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651d. Phase II sulfur dioxide requirements

-STATUTE-

(a) Applicability

(1) After January 1, 2000, each existing utility unit as provided

below is subject to the limitations or requirements of this

section. Each utility unit subject to an annual sulfur dioxide

tonnage emission limitation under this section is an affected unit

under this subchapter. Each source that includes one or more

affected units is an affected source. In the case of an existing

unit that was not in operation during calendar year 1985, the

emission rate for a calendar year after 1985, as determined by the

Administrator, shall be used in lieu of the 1985 rate. The owner or

operator of any unit operated in violation of this section shall be

fully liable under this chapter for fulfilling the obligations

specified in section 7651j of this title.

(2) In addition to basic Phase II allowance allocations, in each

year beginning in calendar year 2000 and ending in calendar year

2009, inclusive, the Administrator shall allocate up to 530,000

Phase II bonus allowances pursuant to subsections (b)(2), (c)(4),

(d)(3)(A) and (B), and (h)(2) of this section and section 7651e of

this title. Not later than June 1, 1998, the Administrator shall

calculate, for each unit granted an extension pursuant to section

7651h of this title the difference between (A) the number of

allowances allocated for the unit in calendar year 2000, and (B)

the product of the unit's baseline multiplied by 1.20 lbs/mmBtu,

divided by 2000, and sum the computations. In each year, beginning

in calendar year 2000 and ending in calendar year 2009, inclusive,

the Administrator shall deduct from each unit's basic Phase II

allowance allocation its pro rata share of 10 percent of the sum

calculated pursuant to the preceding sentence.

(3) In addition to basic Phase II allowance allocations and Phase

II bonus allowance allocations, beginning January 1, 2000, the

Administrator shall allocate for each unit listed on Table A in

section 7651c of this title (other than units at Kyger Creek,

Clifty Creek, and Joppa Steam) and located in the States of

Illinois, Indiana, Ohio, Georgia, Alabama, Missouri, Pennsylvania,

West Virginia, Kentucky, or Tennessee allowances in an amount equal

to 50,000 multiplied by the unit's pro rata share of the total

number of basic allowances allocated for all units listed on Table

A (other than units at Kyger Creek, Clifty Creek, and Joppa Steam).

Allowances allocated pursuant to this paragraph shall not be

subject to the 8,900,000 ton limitation in section 7651b(a) of this

title.

(b) Units equal to, or above, 75 MWe and 1.20 lbs/mmBtu

(1) Except as otherwise provided in paragraph (3), after January

1, 2000, it shall be unlawful for any existing utility unit that

serves a generator with nameplate capacity equal to, or greater,

than 75 MWe and an actual 1985 emission rate equal to or greater

than 1.20 lbs/mmBtu to exceed an annual sulfur dioxide tonnage

emission limitation equal to the product of the unit's baseline

multiplied by an emission rate equal to 1.20 lbs/mmBtu, divided by

2,000, unless the owner or operator of such unit holds allowances

to emit not less than the unit's total annual emissions.

(2) In addition to allowances allocated pursuant to paragraph (1)

and section 7651b(a)(1) of this title as basic Phase II allowance

allocations, beginning January 1, 2000, and for each calendar year

thereafter until and including 2009, the Administrator shall

allocate annually for each unit subject to the emissions limitation

requirements of paragraph (1) with an actual 1985 emissions rate

greater than 1.20 lbs/mmBtu and less than 2.50 lbs/mmBtu and a

baseline capacity factor of less than 60 percent, allowances from

the reserve created pursuant to subsection (a)(2) of this section

in an amount equal to 1.20 lbs/mmBtu multiplied by 50 percent of

the difference, on a Btu basis, between the unit's baseline and the

unit's fuel consumption at a 60 percent capacity factor.

(3) After January 1, 2000, it shall be unlawful for any existing

utility unit with an actual 1985 emissions rate equal to or greater

than 1.20 lbs/mmBtu whose annual average fuel consumption during

1985, 1986, and 1987 on a Btu basis exceeded 90 percent in the form

of lignite coal which is located in a State in which, as of July 1,

1989, no county or portion of a county was designated nonattainment

under section 7407 of this title for any pollutant subject to the

requirements of section 7409 of this title to exceed an annual

sulfur dioxide tonnage 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, unless the owner or operator of such unit holds allowances

to emit not less than the unit's total annual emissions.

(4) After January 1, 2000, the Administrator shall allocate

annually for each unit, subject to the emissions limitation

requirements of paragraph (1), which is located in a State with an

installed electrical generating capacity of more than 30,000,000 kw

in 1988 and for which was issued a prohibition order or a proposed

prohibition order (from burning oil), which unit subsequently

converted to coal between January 1, 1980 and December 31, 1985,

allowances equal to the difference between (A) the product of the

unit's annual fuel consumption, on a Btu basis, at a 65 percent

capacity factor multiplied by the lesser of its actual or allowable

emissions rate during the first full calendar year after

conversion, divided by 2,000, and (B) the number of allowances

allocated for the unit pursuant to paragraph (1): Provided, That

the number of allowances allocated pursuant to this paragraph shall

not exceed an annual total of five thousand. If necessary to

meeting the restriction imposed in the preceding sentence the

Administrator shall reduce, pro rata, the annual allowances

allocated for each unit under this paragraph.

(1) Except as otherwise provided in paragraph (3), after January

1, 2000, it shall be unlawful for a coal or oil-fired existing

utility unit that serves a generator with nameplate capacity of

less than 75 MWe and an actual 1985 emission rate equal to, or

greater than, 1.20 lbs/mmBtu and which is a unit owned by a utility

operating company whose aggregate nameplate fossil fuel

steam-electric capacity is, as of December 31, 1989, equal to, or

greater than, 250 MWe to exceed an annual sulfur dioxide emissions

limitation equal to the product of the unit's baseline multiplied

by an emission rate equal to 1.20 lbs/mmBtu, divided by 2,000,

unless the owner or operator of such unit holds allowances to emit

not less than the unit's total annual emissions.

(2) After January 1, 2000, it shall be unlawful for a coal or

oil-fired existing utility unit that serves a generator with

nameplate capacity of less than 75 MWe and an actual 1985 emission

rate equal to, or greater than, 1.20 lbs/mmBtu (excluding units

subject to section 7411 of this title or to a federally enforceable

emissions limitation for sulfur dioxide equivalent to an annual

rate of less than 1.20 lbs/mmBtu) and which is a unit owned by a

utility operating company whose aggregate nameplate fossil fuel

steam-electric capacity is, as of December 31, 1989, less than 250

MWe, to exceed an annual sulfur dioxide tonnage emissions

limitation equal to the product of the unit's baseline multiplied

by the lesser of its actual 1985 emissions rate or its allowable

1985 emissions rate, divided by 2,000, unless the owner or operator

of such unit holds allowances to emit not less than the unit's

total annual emissions.

(3) After January 1, 2000, it shall be unlawful for any existing

utility unit with a nameplate capacity below 75 MWe and an actual

1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which

became operational on or before December 31, 1965, which is owned

by a utility operating company with, as of December 31, 1989, a

total fossil fuel steam-electric generating capacity greater than

250 MWe, and less than 450 MWe which serves fewer than 78,000

electrical customers as of November 15, 1990, to exceed an annual

sulfur dioxide emissions tonnage limitation equal to the product of

its baseline multiplied by the lesser of its actual or allowable

1985 emission rate, divided by 2,000, unless the owner or operator

holds allowances to emit not less than the units (!1) total annual

emissions. After January 1, 2010, it shall be unlawful for each

unit subject to the emissions limitation requirements of this

paragraph to exceed an annual emissions tonnage limitation equal to

the product of its baseline multiplied by an emissions rate of 1.20

lbs/mmBtu, divided by 2,000, unless the owner or operator holds

allowances to emit not less than the unit's total annual emissions.

(4) In addition to allowances allocated pursuant to paragraph (1)

and section 7651b(a)(1) of this title as basic Phase II allowance

allocations, beginning January 1, 2000, and for each calendar year

thereafter until and including 2009, inclusive, the Administrator

shall allocate annually for each unit subject to the emissions

limitation requirements of paragraph (1) with an actual 1985

emissions rate equal to, or greater than, 1.20 lbs/mmBtu and less

than 2.50 lbs/mmBtu and a baseline capacity factor of less than 60

percent, allowances from the reserve created pursuant to subsection

(a)(2) of this section in an amount equal to 1.20 lbs/mmBtu

multiplied by 50 percent of the difference, on a Btu basis, between

the unit's baseline and the unit's fuel consumption at a 60 percent

capacity factor.

(5) After January 1, 2000, it shall be unlawful for any existing

utility unit with a nameplate capacity below 75 MWe and an actual

1985 emissions rate equal to, or greater than, 1.20 lbs/mmBtu which

is part of an electric utility system which, as of November 15,

1990, (A) has at least 20 percent of its fossil-fuel capacity

controlled by flue gas desulfurization devices, (B) has more than

10 percent of its fossil-fuel capacity consisting of coal-fired

units of less than 75 MWe, and (C) has large units (greater than

400 MWe) all of which have difficult or very difficult FGD Retrofit

Cost Factors (according to the Emissions and the FGD Retrofit

Feasibility at the 200 Top Emitting Generating Stations, prepared

for the United States Environmental Protection Agency on January

10, 1986) to exceed an annual sulfur dioxide emissions tonnage

limitation equal to the product of its baseline multiplied by an

emissions rate of 2.5 lbs/mmBtu, divided by 2,000, unless the owner

or operator holds allowances to emit not less than the unit's total

annual emissions. After January 1, 2010, it shall be unlawful for

each unit subject to the emissions limitation requirements of this

paragraph to exceed an annual emissions tonnage limitation equal to

the product of its baseline multiplied by an emissions rate of 1.20

lbs/mmBtu, divided by 2,000, unless the owner or operator holds for

use allowances to emit not less than the unit's total annual

emissions.

(d) Coal-fired units below 1.20 lbs/mmBtu

(1) After January 1, 2000, it shall be unlawful for any existing

coal-fired utility unit the lesser of whose actual or allowable

1985 sulfur dioxide emissions rate is less than 0.60 lbs/mmBtu to

exceed an annual sulfur dioxide tonnage emission limitation equal

to the product of the unit's baseline multiplied by (A) the lesser

of 0.60 lbs/mmBtu or the unit's allowable 1985 emissions rate, and

(B) a numerical factor of 120 percent, divided by 2,000, unless the

owner or operator of such unit holds allowances to emit not less

than the unit's total annual emissions.

(2) After January 1, 2000, it shall be unlawful for any existing

coal-fired utility unit the lesser of whose actual or allowable

1985 sulfur dioxide emissions rate is equal to, or greater than,

0.60 lbs/mmBtu and less than 1.20 lbs/mmBtu to exceed an annual

sulfur dioxide tonnage emissions limitation equal to the product of

the unit's baseline multiplied by (A) the lesser of its actual 1985

emissions rate or its allowable 1985 emissions rate, and (B) a

numerical factor of 120 percent, divided by 2,000, unless the owner

or operator of such unit holds allowances to emit not less than the

unit's total annual emissions.

(3)(A) In addition to allowances allocated pursuant to paragraph

(1) and section 7651b(a)(1) of this title as basic Phase II

allowance allocations, at the election of the designated

representative of the operating company, beginning January 1, 2000,

and for each calendar year thereafter until and including 2009, the

Administrator shall allocate annually for each unit subject to the

emissions limitation requirements of paragraph (1) allowances from

the reserve created pursuant to subsection (a)(2) of this section

in an amount equal to the amount by which (i) the product of the

lesser of 0.60 lbs/mmBtu or the unit's allowable 1985 emissions

rate multiplied by the unit's baseline adjusted to reflect

operation at a 60 percent capacity factor, divided by 2,000,

exceeds (ii) the number of allowances allocated for the unit

pursuant to paragraph (1) and section 7651b(a)(1) of this title as

basic Phase II allowance allocations.

(B) In addition to allowances allocated pursuant to paragraph (2)

and section 7651b(a)(1) of this title as basic Phase II allowance

allocations, at the election of the designated representative of

the operating company, beginning January 1, 2000, and for each

calendar year thereafter until and including 2009, the

Administrator shall allocate annually for each unit subject to the

emissions limitation requirements of paragraph (2) allowances from

the reserve created pursuant to subsection (a)(2) of this section

in an amount equal to the amount by which (i) the product of the

lesser of the unit's actual 1985 emissions rate or its allowable

1985 emissions rate multiplied by the unit's baseline adjusted to

reflect operation at a 60 percent capacity factor, divided by

2,000, exceeds (ii) the number of allowances allocated for the unit

pursuant to paragraph (2) and section 7651b(a)(1) of this title as

basic Phase II allowance allocations.

limitation requirements of this subsection may elect the allocation

of allowances as provided under subparagraphs (A) and (B). Such

election shall apply to the annual allowance allocation for each

and every unit in the operating company subject to the emissions

limitation requirements of this subsection. The Administrator shall

allocate allowances pursuant to subparagraphs (A) and (B) only in

accordance with this subparagraph.

(4) Notwithstanding any other provision of this section, at the

election of the owner or operator, after January 1, 2000, the

Administrator shall allocate in lieu of allocation, pursuant to

paragraph (1), (2), (3), (5), or (6), allowances for a unit subject

to the emissions limitation requirements of this subsection which

commenced commercial operation on or after January 1, 1981 and

before December 31, 1985, which was subject to, and in compliance

with, section 7411 of this title in an amount equal to the unit's

annual fuel consumption, on a Btu basis, at a 65 percent capacity

factor multiplied by the unit's allowable 1985 emissions rate,

divided by 2,000.

(5) For the purposes of this section, in the case of an oil- and

gas-fired unit which has been awarded a clean coal technology

demonstration grant as of January 1, 1991, by the United States

Department of Energy, beginning January 1, 2000, the Administrator

shall allocate for the unit allowances in an amount equal to the

unit's baseline multiplied by 1.20 lbs/mmBtu, divided by 2,000.

(e) Oil and gas-fired units equal to or greater than 0.60 lbs/mmBtu

and less than 1.20 lbs/mmBtu

After January 1, 2000, it shall be unlawful for any existing oil

and gas-fired utility unit the lesser of whose actual or allowable

1985 sulfur dioxide emission rate is equal to, or greater than,

0.60 lbs/mmBtu, but less than 1.20 lbs/mmBtu to exceed an annual

sulfur dioxide tonnage limitation equal to the product of the

unit's baseline multiplied by (A) the lesser of the unit's

allowable 1985 emissions rate or its actual 1985 emissions rate and

(B) a numerical factor of 120 percent divided by 2,000, unless the

owner or operator of such unit holds allowances to emit not less

than the unit's total annual emissions.

(f) Oil and gas-fired units less than 0.60 lbs/mmBtu

(1) After January 1, 2000, it shall be unlawful for any oil and

gas-fired existing utility unit the lesser of whose actual or

allowable 1985 emission rate is less than 0.60 lbs/mmBtu and whose

average annual fuel consumption during the period 1980 through 1989

on a Btu basis was 90 percent or less in the form of natural gas to

exceed an annual sulfur dioxide tonnage emissions limitation equal

to the product of the unit's baseline multiplied by (A) the lesser

of 0.60 lbs/mmBtu or the unit's allowable 1985 emissions, and (B) a

numerical factor of 120 percent, divided by 2,000, unless the owner

or operator of such unit holds allowances to emit not less than the

unit's total annual emissions.

(2) In addition to allowances allocated pursuant to paragraph (1)

as basic Phase II allowance allocations and section 7651b(a)(1) of

this title, beginning January 1, 2000, the Administrator shall, in

the case of any unit operated by a utility that furnishes

electricity, electric energy, steam, and natural gas within an area

consisting of a city and 1 contiguous county, and in the case of

any unit owned by a State authority, the output of which unit is

furnished within that same area consisting of a city and 1

contiguous county, the Administrator shall allocate for each unit

in the utility its pro rata share of 7,000 allowances and for each

unit in the State authority its pro rata share of 2,000 allowances.

(g) Units that commence operation between 1986 and December 31,

1995

(1) After January 1, 2000, it shall be unlawful for any utility

unit that has commenced commercial operation on or after January 1,

1986, but not later than September 30, 1990 to exceed an annual

tonnage emission limitation equal to the product of the unit's

annual fuel consumption, on a Btu basis, at a 65 percent capacity

factor multiplied by the unit's allowable 1985 sulfur dioxide

emission rate (converted, if necessary, to pounds per mmBtu),

divided by 2,000 unless the owner or operator of such unit holds

allowances to emit not less than the unit's total annual emissions.

(2) After January 1, 2000, the Administrator shall allocate

allowances pursuant to section 7651b of this title to each unit

which is listed in table B of this paragraph in an annual amount

equal to the amount specified in table B.

TABLE B

--------------------------------------------------------------------

Unit 2Allowances

--------------------------------------------------------------------

Brandon Shores 8,907

Miller 4 9,197

TNP One 2 4,000

Zimmer 1 18,458

Spruce 1 7,647

Clover 1 2,796

Clover 2 2,796

Twin Oak 2 1,760

Twin Oak 1 9,158

Cross 1 6,401

Malakoff 1 1,759

--------------------------------------------------------------------

Notwithstanding any other paragraph of this subsection, for units

subject to this paragraph, the Administrator shall not allocate

allowances pursuant to any other paragraph of this subsection,

Provided (!2) that the owner or operator of a unit listed on Table

B may elect an allocation of allowances under another paragraph of

this subsection in lieu of an allocation under this paragraph.

(3) Beginning January 1, 2000, the Administrator shall allocate

to the owner or operator of any utility unit that commences

commercial operation, or has commenced commercial operation, on or

after October 1, 1990, but not later than December 31, 1992

allowances in an amount equal to the product of the unit's annual

fuel consumption, on a Btu basis, at a 65 percent capacity factor

multiplied by the lesser of 0.30 lbs/mmBtu or the unit's allowable

sulfur dioxide emission rate (converted, if necessary, to pounds

per mmBtu), divided by 2,000.

(4) Beginning January 1, 2000, the Administrator shall allocate

to the owner or operator of any utility unit that has commenced

construction before December 31, 1990 and that commences commercial

operation between January 1, 1993 and December 31, 1995, allowances

in an amount equal to the product of the unit's annual fuel

consumption, on a Btu basis, at a 65 percent capacity factor

multiplied by the lesser of 0.30 lbs/mmBtu or the unit's allowable

sulfur dioxide emission rate (converted, if necessary, to pounds

per mmBtu), divided by 2,000.

(5) After January 1, 2000, it shall be unlawful for any existing

utility unit that has completed conversion from predominantly gas

fired existing operation to coal fired operation between January 1,

1985 and December 31, 1987, for which there has been allocated a

proposed or final prohibition order pursuant to section 301(b) (!3)

of the Powerplant and Industrial Fuel Use Act of 1978 (42 U.S.C.

8301 et seq, repealed 1987) to exceed an annual sulfur dioxide

tonnage emissions limitation equal to the product of the unit's

annual fuel consumption, on a Btu basis, at a 65 percent capacity

factor multiplied by the lesser of 1.20 lbs/mmBtu or the unit's

allowable 1987 sulfur dioxide emissions rate, divided by 2,000,

unless the owner or operator of such unit has obtained allowances

equal to its actual emissions.

(6)(A) (!4) Unless the Administrator has approved a designation

of such facility under section 7651i of this title, the provisions

of this subchapter shall not apply to a "qualifying small power

production facility" or "qualifying cogeneration facility" (within

the meaning of section 796(17)(C) or 796(18)(B) of title 16) or to

a "new independent power production facility" as defined in section

7651o of this title except that clause (iii) (!5) of such

definition in section 7651o of this title shall not apply for

purposes of this paragraph if, as of November 15, 1990,

(i) an applicable power sales agreement has been executed;

(ii) the facility is the subject of a State regulatory

authority order requiring an electric utility to enter into a

power sales agreement with, purchase capacity from, or (for

purposes of establishing terms and conditions of the electric

utility's purchase of power) enter into arbitration concerning,

the facility;

(iii) an electric utility has issued a letter of intent or

similar instrument committing to purchase power from the facility

at a previously offered or lower price and a power sales

agreement is executed within a reasonable period of time; or

(iv) the facility has been selected as a winning bidder in a

utility competitive bid solicitation.

(h) Oil and gas-fired units less than 10 percent oil consumed

(1) After January 1, 2000, it shall be unlawful for any oil- and

gas-fired utility unit whose average annual fuel consumption during

the period 1980 through 1989 on a Btu basis exceeded 90 percent in

the form of natural gas to exceed an annual sulfur dioxide tonnage

limitation equal to the product of the unit's baseline multiplied

by the unit's actual 1985 emissions rate divided by 2,000 unless

the owner or operator of such unit holds allowances to emit not

less than the unit's total annual emissions.

(2) In addition to allowances allocated pursuant to paragraph (1)

and section 7651b(a)(1) of this title as basic Phase II allowance

allocations, beginning January 1, 2000, and for each calendar year

thereafter until and including 2009, the Administrator shall

allocate annually for each unit subject to the emissions limitation

requirements of paragraph (1) allowances from the reserve created

pursuant to subsection (a)(2) of this section in an amount equal to

the unit's baseline multiplied by 0.050 lbs/mmBtu, divided by

2,000.

(3) In addition to allowances allocated pursuant to paragraph (1)

and section 7651b(a)(1) of this title, beginning January 1, 2010,

the Administrator shall allocate annually for each unit subject to

the emissions limitation requirements of paragraph (1) allowances

in an amount equal to the unit's baseline multiplied by 0.050

lbs/mmBtu, divided by 2,000.

(i) Units in high growth States

(1) In addition to allowances allocated pursuant to this section

and section 7651b(a)(1) of this title as basic Phase II allowance

allocations, beginning January 1, 2000, the Administrator shall

allocate annually allowances for each unit, subject to an emissions

limitation requirement under this section, and located in a State

that -

(A) has experienced a growth in population in excess of 25

percent between 1980 and 1988 according to State Population and

Household Estimates, With Age, Sex, and Components of Change:

1981-1988 allocated by the United States Department of Commerce,

and

(B) had an installed electrical generating capacity of more

than 30,000,000 kw in 1988,

in an amount equal to the difference between (A) the number of

allowances that would be allocated for the unit pursuant to the

emissions limitation requirements of this section applicable to the

unit adjusted to reflect the unit's annual average fuel consumption

on a Btu basis of any three consecutive calendar years between 1980

and 1989 (inclusive) as elected by the owner or operator and (B)

the number of allowances allocated for the unit pursuant to the

emissions limitation requirements of this section: Provided, That

the number of allowances allocated pursuant to this subsection

shall not exceed an annual total of 40,000. If necessary to meeting

the 40,000 allowance restriction imposed under this subsection the

Administrator shall reduce, pro rata, the additional annual

allowances allocated to each unit under this subsection.

(2) Beginning January 1, 2000, in addition to allowances

allocated pursuant to this section and section 7651b(a)(1) of this

title as basic Phase II allowance allocations, the Administrator

shall allocate annually for each unit subject to the emissions

limitation requirements of subsection (b)(1) of this section, (A)

the lesser of whose actual or allowable 1980 emissions rate has

declined by 50 percent or more as of November 15, 1990, (B) whose

actual emissions rate is less than 1.2 lbs/mmBtu as of January 1,

2000, (C) which commenced operation after January 1, 1970, (D)

which is owned by a utility company whose combined commercial and

industrial kilowatt-hour sales have increased by more than 20

percent between calendar year 1980 and November 15, 1990, and (E)

whose company-wide fossil-fuel sulfur dioxide emissions rate has

declined 40 per centum or more from 1980 to 1988, allowances in an

amount equal to the difference between (i) the number of allowances

that would be allocated for the unit pursuant to the emissions

limitation requirements of subsection (b)(1) of this section

adjusted to reflect the unit's annual average fuel consumption on a

Btu basis for any three consecutive years between 1980 and 1989

(inclusive) as elected by the owner or operator and (ii) the number

of allowances allocated for the unit pursuant to the emissions

limitation requirements of subsection (b)(1) of this section:

Provided, That the number of allowances allocated pursuant to this

paragraph shall not exceed an annual total of 5,000. If necessary

to meeting the 5,000-allowance restriction imposed in the last

clause of the preceding sentence the Administrator shall reduce,

pro rata, the additional allowances allocated to each unit pursuant

to this paragraph.

(j) Certain municipally owned power plants

Beginning January 1, 2000, in addition to allowances allocated

pursuant to this section and section 7651b(a)(1) of this title as

basic Phase II allowance allocations, the Administrator shall

allocate annually for each existing municipally owned oil and

gas-fired utility unit with nameplate capacity equal to, or less

than, 40 MWe, the lesser of whose actual or allowable 1985 sulfur

dioxide emission rate is less than 1.20 lbs/mmBtu, allowances in an

amount equal to the product of the unit's annual fuel consumption

on a Btu basis at a 60 percent capacity factor multiplied by the

lesser of its allowable 1985 emission rate or its actual 1985

emission rate, divided by 2,000.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 405, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2605.)

-REFTEXT-

REFERENCES IN TEXT

Section 301(b) of the Powerplant and Industrial Fuel Use Act of

1978, referred to in subsec. (g)(5), is section 301(b) of Pub. L.

95-620, which is classified to section 8341(b) of this title. A

prior section 301(b) of Pub. L. 95-620, title III, Nov. 9, 1978, 92

Stat. 3305, which was formerly classified to section 8341(b) of

this title, was repealed by Pub. L. 97-35, title X, Sec. 1021(a),

Aug. 13, 1981, 95 Stat. 614.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651b, 7651c,

7651e, 7651f, 7651g, 7651h, 7651i, 7651j of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "unit's".

(!2) So in original. Probably should not be capitalized.

(!3) See References in Text note below.

(!4) So in original. No subpar. (B) has been enacted.

(!5) So in original. Probably means clause "(C)".

-End-

-CITE-

42 USC Sec. 7651e 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651e. Allowances for States with emissions rates at or below

0.80 lbs/mmBtu

-STATUTE-

(a) Election of Governor

In addition to basic Phase II allowance allocations, upon the

election of the Governor of any State, with a 1985 state-wide

annual sulfur dioxide emissions rate equal to or less than, 0.80

lbs/mmBtu, averaged over all fossil fuel-fired utility steam

generating units, beginning January 1, 2000, and for each calendar

year thereafter until and including 2009, the Administrator shall

allocate, in lieu of other Phase II bonus allowance allocations,

allowances from the reserve created pursuant to section 7651d(a)(2)

of this title to all such units in the State in an amount equal to

125,000 multiplied by the unit's pro rata share of electricity

generated in calendar year 1985 at fossil fuel-fired utility steam

units in all States eligible for the election.

(b) Notification of Administrator

Pursuant to section 7651b(a)(1) of this title, each Governor of a

State eligible to make an election under paragraph (!1) (a) shall

notify the Administrator of such election. In the event that the

Governor of any such State fails to notify the Administrator of the

Governor's elections, the Administrator shall allocate allowances

pursuant to section 7651d of this title.

After January 1, 2010, the Administrator shall allocate

allowances to units subject to the provisions of this section

pursuant to section 7651d of this title.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 406, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2613.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651b, 7651d,

7651j of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "subsection".

-End-

-CITE-

42 USC Sec. 7651f 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651f. Nitrogen oxides emission reduction program

-STATUTE-

(a) Applicability

On the date that a coal-fired utility unit becomes an affected

unit pursuant to sections 7651c, 7651d,(!1) 7651h of this title, or

on the date a unit subject to the provisions of section 7651c(d) or

7651h(b) of this title, must meet the SOG52 reduction

requirements, each such unit shall become an affected unit for

purposes of this section and shall be subject to the emission

limitations for nitrogen oxides set forth herein.

(b) Emission limitations

(1) Not later than eighteen months after November 15, 1990, the

Administrator shall by regulation establish annual allowable

emission limitations for nitrogen oxides for the types of utility

boilers listed below, which limitations shall not exceed the rates

listed below: Provided, That the Administrator may set a rate

higher than that listed for any type of utility boiler if the

Administrator finds that the maximum listed rate for that boiler

type cannot be achieved using low NOG5x burner technology. The

maximum allowable emission rates are as follows:

(A) for tangentially fired boilers, 0.45 lb/mmBtu;

(B) for dry bottom wall-fired boilers (other than units

applying cell burner technology), 0.50 lb/mmBtu.

After January 1, 1995, it shall be unlawful for any unit that is an

affected unit on that date and is of the type listed in this

paragraph to emit nitrogen oxides in excess of the emission rates

set by the Administrator pursuant to this paragraph.

(2) Not later than January 1, 1997, the Administrator shall, by

regulation, establish allowable emission limitations on a lb/mmBtu,

annual average basis, for nitrogen oxides for the following types

of utility boilers:

(A) wet bottom wall-fired boilers;

(B) cyclones;

(D) all other types of utility boilers.

The Administrator shall base such rates on the degree of reduction

achievable through the retrofit application of the best system of

continuous emission reduction, taking into account available

technology, costs and energy and environmental impacts; and which

is comparable to the costs of nitrogen oxides controls set pursuant

to subsection (b)(1) of this section. Not later than January 1,

1997, the Administrator may revise the applicable emission

limitations for tangentially fired and dry bottom, wall-fired

boilers (other than cell burners) to be more stringent if the

Administrator determines that more effective low NOG5x burner

technology is available: Provided, That, no unit that is an

affected unit pursuant to section 7651c of this title and that is

subject to the requirements of subsection (b)(1) of this section,

shall be subject to the revised emission limitations, if any.

(1) Not later than January 1, 1993, the Administrator shall

propose revised standards of performance to section 7411 of this

title for nitrogen oxides emissions from fossil-fuel fired steam

generating units, including both electric utility and nonutility

units. Not later than January 1, 1994, the Administrator shall

promulgate such revised standards of performance. Such revised

standards of performance shall reflect improvements in methods for

the reduction of emissions of oxides of nitrogen.

(d) Alternative emission limitations

The permitting authority shall, upon request of an owner or

operator of a unit subject to this section, authorize an emission

limitation less stringent than the applicable limitation

established under subsection (b)(1) or (b)(2) of this section upon

a determination that -

(1) a unit subject to subsection (b)(1) of this section cannot

meet the applicable limitation using low NOG5x burner

technology; or

(2) a unit subject to subsection (b)(2) of this section cannot

meet the applicable rate using the technology on which the

Administrator based the applicable emission limitation.

The permitting authority shall base such determination upon a

showing satisfactory to the permitting authority, in accordance

with regulations established by the Administrator not later than

eighteen months after November 15, 1990, that the owner or operator

(1) has properly installed appropriate control equipment

designed to meet the applicable emission rate;

(2) has properly operated such equipment for a period of

fifteen months (or such other period of time as the Administrator

determines through the regulations), and provides operating and

monitoring data for such period demonstrating that the unit

cannot meet the applicable emission rate; and

(3) has specified an emission rate that such unit can meet on

an annual average basis.

The permitting authority shall issue an operating permit for the

unit in question, in accordance with section 7651g of this title

and part B (!2) of title III -

(i) that permits the unit during the demonstration period

referred to in subparagraph (2) above, to emit at a rate in

excess of the applicable emission rate;

(ii) at the conclusion of the demonstration period to revise

the operating permit to reflect the alternative emission rate

demonstrated in paragraphs (2) and (3) above.

Units subject to subsection (b)(1) of this section for which an

alternative emission limitation is established shall not be

required to install any additional control technology beyond low

NOG5x burners. Nothing in this section shall preclude an owner or

operator from installing and operating an alternative NOG5x

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) of this

section demonstrates to the satisfaction of the Administrator that

the technology necessary to meet such requirements is not in

adequate supply to enable its installation and operation at the

unit, consistent with system reliability, by January 1, 1995, then

the Administrator shall extend the deadline for compliance for the

unit by a period of 15 months. Any owner or operator may petition

the Administrator to make a determination 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 emission limitations

under subsection (b)(1), (2), or (d) of this section, the owner or

operator of two or more units subject to one or more of the

applicable emission limitations set pursuant to these sections, may

petition the permitting authority for alternative contemporaneous

annual emission limitations for such units that ensure that (1) the

actual annual emission rate in pounds of nitrogen 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 accordance

with the applicable emission rates set pursuant to subsections

(b)(1) and (2) of this section.

If the permitting authority determines, in accordance with

regulations issued by the Administrator not later than eighteen

months after November 15, 1990; (!3) that the conditions in the

paragraph above can be met, the permitting authority shall issue

operating permits for such units, in accordance with section 7651g

of this title and part B (!2) of title III, that allow alternative

contemporaneous annual emission limitations. Such emission

limitations shall only remain in effect while both units continue

operation under the conditions specified in their respective

operating permits.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 407, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2613.)

-REFTEXT-

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 (Sec. 7661 et seq.) of

this chapter.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651g, 7651j of this

title.

-FOOTNOTE-

(!1) So in original. Probably should be followed by "or".

(!2) See References in Text note below.

(!3) So in original. The semicolon probably should be a comma.

-End-

-CITE-

42 USC Sec. 7651g 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651g. Permits and compliance plans

-STATUTE-

(a) Permit program

The provisions of this subchapter shall be implemented, subject

to section 7651b of this title, by permits issued to units subject

to this subchapter (and enforced) in accordance with the provisions

of subchapter V of this chapter, as modified by this subchapter.

Any such permit issued by the Administrator, or by a State with an

approved permit program, shall prohibit -

(1) annual emissions of sulfur dioxide in excess of the number

of allowances to emit sulfur dioxide the owner or operator, or

the designated representative of the owners or operators, 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, notwithstanding subchapter V of this chapter. No

permit shall be issued that is inconsistent with the requirements

of this subchapter, and subchapter V of this chapter as applicable.

(b) Compliance plan

Each initial permit application shall be accompanied by a

compliance plan for the source to comply with its requirements

under this subchapter. 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 considered a "facility". Nothing in this section regarding

compliance plans or in subchapter V of this chapter shall be

construed as affecting allowances. Except as provided under

subsection (c)(1)(B) of this section, submission of a statement by

the owner or operator, or the designated representative of the

owners and operators, of a unit subject to the emissions limitation

requirements of sections 7651c, 7651d, and 7651f of this title,

that the unit will meet the applicable 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 approved compliance planning

requirements of this section and subchapter V of this chapter,

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 section 7651i of this title, the proposed and approved

compliance plan, permit application and permit shall include,

pursuant to regulations promulgated by the Administrator, for each

alternative method of compliance a comprehensive description of the

schedule and means by which the unit will rely on one or more

alternative methods of compliance in the manner and time authorized

under this subchapter. Recordation by the Administrator of

transfers of allowances shall amend automatically all applicable

proposed or approved permit applications, compliance plans and

permits. The Administrator may also require -

(1) for a source, a demonstration of attainment of national

ambient air quality standards, and

(2) from the owner or operator of two or more affected sources,

an integrated compliance plan providing an overall plan for

achieving compliance at the affected sources.

The Administrator shall issue permits to affected 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 operator, of each affected source under sections 7651c

and 7651f of this title shall submit a permit 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 enforceable 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 section by

reducing utilization of the unit as compared with its baseline or

by shutting down the unit, the owner or operator shall include in

the proposed compliance plan a specification of the unit or units

that will provide electrical generation to compensate for the

reduced output at the affected source, or a demonstration 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 sections 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 proposed 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 prescribes as part of such disapproval.

(3) Regulations; issuance of permits

Not later than 18 months after November 15, 1990, the

Administrator shall promulgate regulations, in accordance with

subchapter V of this chapter, to implement a Federal permit

program to issue permits for affected sources under this

subchapter. Following promulgation, the Administrator 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 affected source under

section 7651c of this title. Such a permit shall supersede any

permit application 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 section 7661a(b)(3) of this title or

under section 7410(a)(2)(L) of this title with respect to

emissions 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 nitrogen oxide

emission reductions under section 7651f of this title, each State

in which one or more such units or sources are located shall submit

in accordance with subchapter V of this chapter, a permit program

for approval as provided by that subchapter. Upon approval of such

program, for the units or sources subject to such approved program

the Administrator shall suspend the issuance of permits as provided

in subchapter V of this chapter.

(2) The owner or operator or the designated representative of

each affected source under section 7651d of this title shall submit

a permit application and compliance plan for that source to the

permitting authority, not later than January 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 operators, of affected

sources under section 7651d of this title that satisfy the

requirements of subchapter V of this chapter and this subchapter

and that submitted 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 permit

to the owner or operator or the designated representative of each

such affected source. In the case of affected sources for which

applications and plans are timely received under paragraph (2), the

permit application and the compliance plan, including amendments

thereto, shall be binding on the owner or operator or the

designated representative of the owners or operators and shall be

enforceable as a permit for purposes of this subchapter and

subchapter V of this chapter until a permit is issued by the

permitting authority 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 of this chapter.

(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 dioxide in

excess of the number of allowances to emit sulfur dioxide the owner

or operator or designated representative hold for the unit.

(e) New units

The owner or operator of each source that includes a new electric

utility steam generating unit shall submit a permit application and

compliance plan to the permitting authority not later than 24

months before the later of (1) January 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 subchapter V of this chapter and this subchapter.

(f) Units subject to certain other limits

The owner or operator, or designated representative 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 requirements of

subchapter V of this chapter and this subchapter, including any

appropriate monitoring and reporting requirements.

(g) Amendment of application and compliance plan

At any time after the submission of an application and compliance

plan under this section, the applicant may submit a revised

application and compliance plan, in accordance with the

requirements 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 operator, or designated

representative, required to submit a permit application or

compliance plan under this subchapter to fail to submit such

application or plan in accordance with the deadlines specified in

this section or to otherwise fail to comply with regulations

implementing this section.

(2) It shall be unlawful for any person to operate any source

subject to this subchapter except in compliance with the terms and

requirements of a permit application and compliance plan (including

amendments thereto) or permit issued by the Administrator or a

State with an approved permit program. For purposes of this

subsection, compliance, as provided in section 7661c(f) of this

title, with a permit issued under subchapter V of this chapter

which complies with this subchapter 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 of this chapter shall be construed

as requiring termination of operations of an electric utility steam

generating unit for failure to have an approved permit or

compliance plan, except that any such unit may be subject to the

applicable enforcement 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 representative of the owners or operators has

filed a certificate 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 arrangements,

the certificate shall state (1) that allowances and the proceeds of

transactions involving allowances will be deemed to be held or

distributed in proportion to each holder's legal, equitable,

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 accordance 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, equitable,

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 expressly

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 received by the unit

are deemed to be held for that person.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 408, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2616.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651b, 7651c, 7651f,

7651h, 7651i of this title.

-FOOTNOTE-

(!1) So in original. Probably should be followed by a comma.

(!2) So in original. Section 7651a of this title does not

contain subsections.

-End-

-CITE-

42 USC Sec. 7651h 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651h. Repowered sources

-STATUTE-

(a) Availability

Not later than December 31, 1997, the owner or operator of an

existing unit subject to the emissions limitation requirements of

section 7651d(b) and (c) of this title may demonstrate to the

permitting authority that one or more units will be repowered with

a qualifying clean coal technology to comply with the requirements

under section 7651d of this title. The owner or operator shall, as

part of any such demonstration, provide, not later than January 1,

2000, satisfactory documentation of a preliminary design and

engineering effort for such repowering and an executed and binding

contract for the majority of the equipment to repower such unit and

such other information as the Administrator may require by

regulation. The replacement of an existing 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 different 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

operation.

(b) Extension

(1) An owner or operator satisfying the requirements of

subsection (a) of this section shall be granted an extension of the

emission limitation requirement compliance date for that unit from

January 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

requirements necessary to meet second phase requirements 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 paragraph (1) in order to repower such

unit with a clean coal unit, and (B) such owner or operator

demonstrates to the satisfaction of the Administrator that the

repowering technology to be utilized 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 technologically infeasible, such existing unit may

be retrofitted or repowered with equipment or facilities utilizing

another clean coal technology or other available control

technology.

(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

affected unit's baseline multiplied by the lesser of the unit's

federally approved State Implementation Plan emissions limitation

or its actual emission rate for 1995 in lieu of any other

allocation. Such allowances may not be transferred or used by any

other source to meet emission requirements under this subchapter.

The source owner or operator shall notify the Administrator sixty

days in advance of the date on which the affected unit for which

the extension has been granted is to be removed from operation 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 accordingly, 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 replacement unit which replaces an existing unit (as

provided in the last sentence of subsection (a) of this section) in

lieu of any further allocations of allowances 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 period as holding

allowances allocated under paragraph (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 standard of

performance under section 7411 of this title. Notwithstanding the

provisions of this subsection, no new unit (1) designated as a

replacement for an existing unit, (2) qualifying for the extension

under subsection (b) of this section, and (3) located at a

different site than the existing unit shall receive an exemption

from the requirements imposed under section 7411 of this title.

(e) Expedited permitting

State permitting authorities and, where applicable, the

Administrator, are encouraged to give expedited consideration to

permit applications under parts C and D of subchapter I of this

chapter 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 section,

including the prohibition against emitting sulfur dioxide in excess

of allowances held.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 409, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2619.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651b, 7651d,

7651f, 7651g, 7651j of this title.

-FOOTNOTE-

(!1) So in original. Probably should be section "7651a(12)".

(!2) So in original. Probably should be "this".

-End-

-CITE-

42 USC Sec. 7651i 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651i. Election for additional sources

-STATUTE-

(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) of this

section, that emits sulfur dioxide, may elect to designate that

unit or source to become an affected unit and to receive allowances

under this subchapter. An election 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

requirements of this section, and such designated unit, or source,

shall be allocated allowances, and be an affected unit for purposes

of this subchapter.

(b) Establishment of baseline

The baseline for a unit designated under this section shall be

established by the Administrator 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.

Annual emissions limitations for sulfur dioxide 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 program 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) of this section, 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 subject 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 carried 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

allowances 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 subsection only for the

period from October 1, 1993, through December 31, 1999.

(2) Allowance determination

The number of allowances allocated pursuant to this paragraph

shall equal the annual number of pounds of sulfur dioxide

reduction attributable to desulfurization by a small refinery

divided by 2,000. For the purposes of this calculation, the

concentration of sulfur removed from diesel fuel shall be the

difference between 0.274 percent (by weight) and 0.050 percent

(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 reported 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 allowances allocated

pursuant to this subsection shall not exceed thirty-five

thousand.

(6) Required certification

The Administrator shall not allocate any allowances pursuant to

this subsection unless the owner or operator of a small diesel

refinery 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) 1545(i) of this title.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 410, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2621.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651b, 7651c,

7651d, 7651g, 7651j, 7651o of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "section".

-End-

-CITE-

42 USC Sec. 7651j 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651j. Excess emissions penalty

-STATUTE-

(a) Excess emissions penalty

The owner or operator of any unit or process source subject to

the requirements of sections (!1) 7651b, 7651c, 7651d, 7651e, 7651f

or 7651h of this title, or designated under section 7651i of this

title, that emits sulfur dioxide or nitrogen oxides 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 calendar

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 calculated on

the basis of the number of tons emitted 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

regulations 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

Miscellaneous 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 offset the excess emissions

by an equal tonnage amount in the following calendar year, or such

longer period as the Administrator may prescribe. 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

proposed plan by the Administrator, as submitted, modified or

conditioned, the plan shall be deemed at a condition of the

operating permit for the unit without further review or revision of

the permit. The Administrator shall also deduct allowances equal to

the excess tonnage from those allocated for the source for the

calendar year, or succeeding years during which offsets are

required, following the year in which the excess emissions

occurred.

The Administrator shall, by regulation, adjust the penalty

specified in subsection (a) of this section for inflation, based on

the Consumer Price Index, on November 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) of this section, (2) to

provide, and thereafter comply with, a compliance plan as required

by subsection (b) of this section, or (3) to offset excess

emissions as required by subsection (b) of this section.

(e) Savings provision

Nothing in this subchapter shall limit or otherwise affect the

application of section 7413, 7414, 7420, or 7604 of this title

except as otherwise explicitly provided in this subchapter.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 411, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2623.)

-REFTEXT-

REFERENCES IN TEXT

The Miscellaneous Receipts Act, referred to in subsec. (a), is

not a recognized popular name for an act. For provisions relating

to deposit of monies, see section 3302 of Title 31, Money and

Finance.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7410, 7651b, 7651c,

7651d, 7651i, 7651k of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "section".

(!2) See References in Text note below.

(!3) So in original. Probably should be "occurred,".

-End-

-CITE-

42 USC Sec. 7651k 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651k. Monitoring, reporting, and recordkeeping requirements

-STATUTE-

(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 requirements for CEMS,

for any alternative monitoring 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

regulations may include limitations or the use of alternative

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 single 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 compliance determinations for each such unit.

(b) First phase requirements

Not later than thirty-six months after November 15, 1990, the

owner or operator of each affected unit under section 7651c of this

title, including, but not limited to, units that become affected

units pursuant to subsections (b) and (c) of this section and

eligible units under subsection (d) of this section, shall install

and operate CEMS, quality assure the data, and keep records and

reports in accordance with the regulations issued under subsection

(a) of this section.

Not later than January 1, 1995, the owner or operator of each

affected unit that has not previously met the requirements of

subsections (a) and (b) of this section shall install and operate

CEMS, quality assure the data, and keep records and reports in

accordance with the regulations issued under subsection (a) of this

section. Upon commencement of commercial operation of each new

utility unit, the unit shall comply with the requirements of

subsection (a) of this section.

(d) Unavailability of emissions data

If CEMS data or data from an alternative monitoring system

approved by the Administrator under subsection (a) of this section

is not available for any affected unit during any period of a

calendar year in which such data is required under this subchapter,

and the owner or operator cannot provide information, satisfactory

to the Administrator, on emissions during that period, the

Administrator shall deem the unit to be operating in an

uncontrolled manner during the entire period for which the data was

not available and shall, by regulation which shall be issued not

later than eighteen months after November 15, 1990, prescribe means

to calculate emissions for that period. The owner or operator shall

be liable for excess emissions fees and offsets under section 7651j

of this title in accordance with such regulations. Any fee due and

payable under this subsection shall not diminish the liability of

the unit's owner or operator for any fine, penalty, fee or

assessment against the unit for the same violation under any other

section of this chapter.

(e) Prohibition

It shall be unlawful for the owner or operator of any source

subject to this subchapter to operate a source without complying

with the requirements of this section, and any regulations

implementing this section.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 412, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2624.)

-MISC1-

INFORMATION GATHERING ON GREENHOUSE GASES CONTRIBUTING TO GLOBAL

CLIMATE CHANGE

Section 821 of Pub. L. 101-549 provided that:

"(a) Monitoring. - The Administrator of the Environmental

Protection Agency shall promulgate regulations within 18 months

after the enactment of the Clean Air Act Amendments of 1990 [Nov.

15, 1990] to require that all affected sources subject to title V

of the Clean Air Act [probably means title IV of the Clean Air Act

as added by Pub. L. 101-549, which is classified to section 7651 et

seq. of this title] shall also monitor carbon dioxide emissions

according to the same timetable as in section 511(b) and (c)

[probably means section 412(b) and (c) of the Clean Air Act, which

is classified to section 7651k(b) and (c) of this title]. The

regulations shall require that such data be reported to the

Administrator. The provisions of section 511(e) of title V of the

Clean Air Act [probably means section 412(e) of title IV of the

Clean Air Act, which is classified to section 7651k(e) of this

title] shall apply for purposes of this section in the same manner

and to the same extent as such provision applies to the monitoring

and data referred to in section 511 [probably means section 412 of

the Clean Air Act, which is classified to section 7651k of this

title].

"(b) Public Availability of Carbon Dioxide Information. - For

each unit required to monitor and provide carbon dioxide data under

subsection (a), the Administrator shall compute the unit's

aggregate annual total carbon dioxide emissions, incorporate such

data into a computer data base, and make such aggregate annual data

available to the public."

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651a, 7651i of this

title.

-End-

-CITE-

42 USC Sec. 7651l 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651l. General compliance with other provisions

-STATUTE-

Except as expressly provided, compliance with the requirements of

this subchapter shall not exempt or exclude the owner or operator

of any source subject to this subchapter from compliance with any

other applicable requirements of this chapter.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 413, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2625.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7651i of this title.

-End-

-CITE-

42 USC Sec. 7651m 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651m. Enforcement

-STATUTE-

It shall be unlawful for any person subject to this subchapter to

violate any prohibition of, requirement of, or regulation

promulgated pursuant to this subchapter shall be a violation of

this chapter. In addition to the other requirements and

prohibitions provided for in this subchapter, the operation of any

affected unit to emit sulfur dioxide in excess of allowances held

for such unit shall be deemed a violation, with each ton emitted in

excess of allowances held constituting a separate violation.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 414, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2625.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7651i of this title.

-End-

-CITE-

42 USC Sec. 7651n 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651n. Clean coal technology regulatory incentives

-STATUTE-

(a) "Clean coal technology" defined

For purposes of this section, "clean coal technology" means any

technology, including technologies applied at the precombustion,

combustion, or post combustion stage, at a new or existing facility

which will achieve significant reductions in air emissions of

sulfur dioxide or oxides of nitrogen associated with the

utilization of coal in the generation of electricity, process

steam, or industrial products, which is not in widespread use as of

November 15, 1990.

(b) Revised regulations for clean coal technology demonstrations

(1) Applicability

This subsection applies to physical or operational changes to

existing facilities for the sole purpose of installation,

operation, cessation, or removal of a temporary or permanent

clean coal technology demonstration project. For the purposes of

this section, a clean coal technology demonstration project shall

mean a project using funds appropriated under the heading

"Department of Energy - Clean Coal Technology", up to a total

amount of $2,500,000,000 for commercial demonstration of clean

coal technology, or similar projects funded through

appropriations for the Environmental Protection Agency. The

Federal contribution for a qualifying project shall be at least

20 percent of the total cost of the demonstration project.

(2) Temporary projects

Installation, operation, cessation, or removal of a temporary

clean coal technology demonstration project that is operated for

a period of five years or less, and which complies with the State

implementation plans for the State in which the project is

located and other requirements necessary to attain and maintain

the national ambient air quality standards during and after the

project is terminated, shall not subject such facility to the

requirements of section 7411 of this title or part C or D of

subchapter I of this chapter.

(3) Permanent projects

For permanent clean coal technology demonstration projects that

constitute repowering as defined in section 7651a(l) (!1) of this

title, any qualifying project shall not be subject to standards

of performance under section 7411 of this title or to the review

and permitting requirements of part C (!2) for any pollutant the

potential emissions of which will not increase as a result of the

demonstration project.

(4) EPA regulations

Not later than 12 months after November 15, 1990, the

Administrator shall promulgate regulations or interpretive

rulings to revise requirements under section 7411 of this title

and parts C and D,(!2) as appropriate, to facilitate projects

consistent in (!3) this subsection. With respect to parts C and

D,(!2) such regulations or rulings shall apply to all areas in

which EPA is the permitting authority. In those instances in

which the State is the permitting authority under part C or

D,(!2) any State may adopt and submit to the Administrator for

approval revisions to its implementation plan to apply the

regulations or rulings promulgated under this subsection.

Physical changes or changes in the method of operation associated

with the commencement of commercial operations by a coal-fired

utility unit after a period of discontinued operation shall not

subject the unit to the requirements of section 7411 of this title

or part C of the Act (!2) where the unit (1) has not been in

operation for the two-year period prior to the enactment of the

Clean Air Act Amendments of 1990 [November 15, 1990], and the

emissions from such unit continue to be carried in the permitting

authority's emissions inventory at the time of enactment, (2) was

equipped prior to shut-down with a continuous system of emissions

control that achieves a removal efficiency for sulfur dioxide of no

less than 85 percent and a removal efficiency for particulates of

no less than 98 percent, (3) is equipped with low-NOG5x burners

prior to the time of commencement, and (4) is otherwise in

compliance with the requirements of this chapter.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 415, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2625.)

-REFTEXT-

REFERENCES IN TEXT

Parts C and D and part C of the Act, referred to in subsecs.

(b)(3), (4) and (c), probably mean parts C and D of subchapter I of

this chapter.

-FOOTNOTE-

(!1) So in original. Probably should be section "7651a(12)".

(!2) See References in Text note below.

(!3) So in original. Probably should be "with".

-End-

-CITE-

42 USC Sec. 7651o 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER IV09A - ACID DEPOSITION CONTROL

-HEAD-

Sec. 7651o. Contingency guarantee, auctions, reserve

-STATUTE-

(a) Definitions

For purposes of this section -

(1) The term "independent power producer" means any person who

owns or operates, in whole or in part, one or more new

independent power production facilities.

(2) The term "new independent power production facility" means

a facility that -

(A) is used for the generation of electric energy, 80 percent

or more of which is sold at wholesale;

(B) is nonrecourse project-financed (as such term is defined

by the Secretary of Energy within 3 months of November 15,

1990);

(as defined in section 79b(a)(11) of title 15) of the

facility's owner or operator unless the owner or operator of

the facility demonstrates that it cannot obtain allowances from

the affiliate; and

(D) is a new unit required to hold allowances under this

subchapter.

(3) The term "required allowances" means the allowances

required to operate such unit for so much of the unit's useful

life as occurs after January 1, 2000.

(b) Special reserve of allowances

Within 36 months after November 15, 1990, the Administrator shall

promulgate regulations establishing a Special Allowance Reserve

containing allowances to be sold under this section. For purposes

of establishing the Special Allowance Reserve, the Administrator

shall withhold -

(1) 2.8 percent of the allocation of allowances for each year

from 1995 through 1999 inclusive; and

(2) 2.8 percent of the basic Phase II allowance allocation of

allowances for each year beginning in the year 2000

which would (but for this subsection) be issued for each affected

unit at an affected source. The Administrator shall record such

withholding for purposes of transferring the proceeds of the

allowance sales under this subsection. The allowances so withheld

shall be deposited in the Reserve under this section.

(1) Subaccount for direct sales

In accordance with regulations under this section, the

Administrator shall establish a Direct Sale Subaccount in the

Special Allowance Reserve established under this section. The

Direct Sale Subaccount shall contain allowances in the amount of

50,000 tons per year for each year beginning in the year 2000.

(2) Sales

Allowances in the subaccount shall be offered for direct sale

to any person at the times and in the amounts specified in table

1 at a price of $1,500 per allowance, adjusted by the Consumer

Price Index in the same manner as provided in paragraph (3).

Requests to purchase allowances from the Direct Sale Subaccount

established under paragraph (1) shall be approved in the order of

receipt until no allowances remain in such subaccount, except

that an opportunity to purchase such allowances shall be provided

to the independent power producers referred to in this subsection

before such allowances are offered to any other person. Each

applicant shall be required to pay 50 percent of the total

purchase price of the allowances within 6 months after the

approval of the request to purchase. The remainder shall be paid

on or before the transfer of the allowances.

TABLE 1 - NUMBER OF ALLOWANCES AVAILABLE FOR SALE AT $1,500 PER TON

--------------------------------------------------------------------

Year of Sale Spot Sale Advance Sale

(same year)

--------------------------------------------------------------------

1993-1999 25,000

2000 and after 25,000 25,000

Allowances sold in the spot sale in any year are allowances which

may only be used in that year (unless banked for use in a later

year). Allowances sold in the advance sale in any year are

allowances which may only be used in the 7th year after the year in

which they are first offered for sale (unless banked for use in a

later year).

--------------------------------------------------------------------

(3) Entitlement to written guarantee

Any independent power producer that submits an application to

the Administrator establishing that such independent power

producer -

(A) proposes to construct a new independent power production

facility for which allowances are required under this

subchapter;

(B) will apply for financing to construct such facility after

January 1, 1990, and before the date of the first auction under

this section;

unit listed in table A (in section 7651c of this title) a

written offer to purchase the required allowances for $750 per

ton; and

(D) has not received (within 180 days after submitting offers

to purchase under subparagraph (C)) an acceptance of the offer

to purchase the required allowances,

shall, within 30 days after submission of such application, be

entitled to receive the Administrator's written guarantee

(subject to the eligibility requirements set forth in paragraph

(4)) that such required allowances will be made available for

purchase from the Direct Sale Subaccount established under this

subsection and at a guaranteed price. The guaranteed price at

which such allowances shall be made available for purchase shall

be $1,500 per ton, adjusted by the percentage, if any, by which

the Consumer Price Index (as determined under section

7661a(b)(3)(B)(v) of this title) for the year in which the

allowance is purchased exceeds the Consumer Price Index for the

calendar year 1990.

(4) Eligibility requirements

The guarantee issued by the Administrator under paragraph (3)

shall be subject to a demonstration by the independent power

producer, satisfactory to the Administrator, that -

(A) the independent power producer has -

(i) made good faith efforts to purchase the required

allowances from the owners or operators of affected units to

which allowances will be allocated, including efforts to

purchase at annual auctions under this section, and from

industrial sources that have elected to become affected units

pursuant to section 7651i of this title; and

(ii) such bids and efforts were unsuccessful in obtaining

the required allowances; and

(B) the independent power producer will continue to make good

faith efforts to purchase the required allowances from the

owners or operators of affected units and from industrial

sources.

(5) Issuance of guaranteed allowances from Direct Sale Subaccount

under this section

From the allowances available in the Direct Sale Subaccount

established under this subsection, upon payment of the guaranteed

price, the Administrator shall issue to any person exercising the

right to purchase allowances pursuant to a guarantee under this

subsection the allowances covered by such guarantee. Persons to

which guarantees under this subsection have been issued shall

have the opportunity to purchase allowances pursuant to such

guarantee from such subaccount before the allowances in such

reserve are offered for sale to any other person.

(6) Proceeds

Notwithstanding section 3302 of title 31 or any other provision

of law, the Administrator shall require that the proceeds of any

sale under this subsection be transferred, within 90 days after

the sale, without charge, on a pro rata basis to the owners or

operators of the affected units from whom the allowances were

withheld under subsection (b) of this section and that any unsold

allowances be transferred to the Subaccount for Auction Sales

established under subsection (d) of this section. No proceeds of

any sale under this subsection shall be held by any officer or

employee of the United States or treated for any purpose as

revenue to the United States or to the Administrator.

(7) Termination of subaccount

If the Administrator determines that, during any period of 2

consecutive calendar years, less than 20 percent of the

allowances available in the subaccount for direct sales

established under this subsection have been purchased under this

paragraph, the Administrator shall terminate the subaccount and

transfer such allowances to the Auction Subaccount under

subsection (d) of this section.

(d) Auction sales

(1) Subaccount for auctions

The Administrator shall establish an Auction Subaccount in the

Special Reserve established under this section. The Auction

Subaccount shall contain allowances to be sold at auction under

this section in the amount of 150,000 tons per year for each year

from 1995 through 1999, inclusive and 250,000 tons per year for

each year beginning in the calendar year 2000.

(2) Annual auctions

Commencing in 1993 and in each year thereafter, the

Administrator shall conduct auctions at which the allowances

referred to in paragraph (1) shall be offered for sale in

accordance with regulations promulgated by the Administrator, in

consultation with the Secretary of the Treasury, within 12 months

of November 15, 1990. The allowances referred to in paragraph (1)

shall be offered for sale at auction in the amounts specified in

table 2. The auction shall be open to any person. A person

wishing to bid for such allowances shall submit (by a date set by

the Administrator) to the Administrator (on a sealed bid schedule

provided by the Administrator) offers to purchase specified

numbers of allowances at specified prices. Such regulations shall

specify that the auctioned allowances shall be allocated and sold

on the basis of bid price, starting with the highest-priced bid

and continuing until all allowances for sale at such auction have

been allocated. The regulations shall not permit that a minimum

price be set for the purchase of withheld allowances. Allowances

purchased at the auction may be used for any purpose and at any

time after the auction, subject to the provisions of this

subchapter.

TABLE 2 - NUMBER OF ALLOWANCES AVAILABLE FOR AUCTION

--------------------------------------------------------------------

Year of Sale Spot Advance

Auction Auction

(same year)

--------------------------------------------------------------------

1993 50,000* 100,000

1994 50,000* 100,000

1995 50,000* 100,000

1996 150,000 100,000

1997 150,000 100,000

1998 150,000 100,000

1999 150,000 100,000

2000 and after 100,000 100,000

Allowances sold in the spot sale in any year are allowances which

may only be used in that year (unless banked for use in a later

year), except as otherwise noted. Allowances sold in the advance

auction in any year are allowances which may only be used in the

7th year after the year in which they are first offered for sale

(unless banked for use in a later year).

*Available for use only in 1995 (unless banked for use in a later

year).

--------------------------------------------------------------------

(3) Proceeds

(A) Notwithstanding section 3302 of title 31 or any other

provision of law, within 90 days of receipt, the Administrator

shall transfer the proceeds from the auction under this section,

on a pro rata basis, to the owners or operators of the affected

units at an affected source from whom allowances were withheld

under subsection (b) of this section. No funds transferred from a

purchaser to a seller of allowances under this paragraph shall be

held by any officer or employee of the United States or treated

for any purpose as revenue to the United States or the

Administrator.

(B) At the end of each year, any allowances offered for sale

but not sold at the auction shall be returned without charge, on

a pro rata basis, to the owner or operator of the affected units

from whose allocation the allowances were withheld.

(4) Additional auction participants

Any person holding allowances or to whom allowances are

allocated by the Administrator may submit those allowances to the

Administrator to be offered for sale at auction under this

subsection. The proceeds of any such sale shall be transferred at

the time of sale by the purchaser to the person submitting such

allowances for sale. The holder of allowances offered for sale

under this paragraph may specify a minimum sale price. Any person

may purchase allowances offered for auction under this paragraph.

Such allowances shall be allocated and sold to purchasers on the

basis of bid price after the auction under paragraph (2) is

complete. No funds transferred from a purchaser to a seller of

allowances under this paragraph shall be held by any officer or

employee of the United States or treated for any purpose as

revenue to the United States or the Administrator.

(5) Recording by EPA

The Administrator shall record and publicly report the nature,

prices and results of each auction under this subsection,

including the prices of successful bids, and shall record the

transfers of allowances as a result of each auction in accordance

with the requirements of this section. The transfer of allowances

at such auction shall be recorded in accordance with the

regulations promulgated by the Administrator under this

subchapter.

(e) Changes in sales, auctions, and withholding

Pursuant to rulemaking after public notice and comment the

Administrator may at any time after the year 1998 (in the case of

advance sales or advance auctions) and 2005 (in the case of spot

sales or spot auctions) decrease the number of allowances withheld

and sold under this section.

(f) Termination of auctions

The Administrator may terminate the withholding of allowances and

the auction sales under this section if the Administrator

determines that, during any period of 3 consecutive calendar years

after 2002, less than 20 percent of the allowances available in the

auction subaccount have been purchased. Pursuant to regulations

under this section, the Administrator may by delegation or contract

provide for the conduct of sales or auctions under the

Administrator's supervision by other departments or agencies of the

United States Government or by nongovernmental agencies, groups, or

organizations.

-SOURCE-

(July 14, 1955, ch. 360, title IV, Sec. 416, as added Pub. L.

101-549, title IV, Sec. 401, Nov. 15, 1990, 104 Stat. 2626.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7651b, 7651d of this

title.

-End-

-CITE-

42 USC SUBCHAPTER V - PERMITS 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

SUBCHAPTER V - PERMITS

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 7410, 7412, 7413,

7420, 7429, 7511a, 7604, 7651b, 7651g of this title.

-End-

-CITE-

42 USC Sec. 7661 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661. Definitions

-STATUTE-

As used in this subchapter -

(1) Affected source

The term "affected source" shall have the meaning given such

term in subchapter IV-A of this chapter.

(2) Major source

The term "major source" means any stationary source (or any

group of stationary sources located within a contiguous area and

under common control) that is either of the following:

(A) A major source as defined in section 7412 of this title.

(B) A major stationary source as defined in section 7602 of

this title or part D of subchapter I of this chapter.

(3) Schedule of compliance

The term "schedule of compliance" means a schedule of remedial

measures, including an enforceable sequence of actions or

operations, leading to compliance with an applicable

implementation plan, emission standard, emission limitation, or

emission prohibition.

(4) Permitting authority

The term "permitting authority" means the Administrator or the

air pollution control agency authorized by the Administrator to

carry out a permit program under this subchapter.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 501, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2635.)

-End-

-CITE-

42 USC Sec. 7661a 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661a. Permit programs

-STATUTE-

(a) Violations

After the effective date of any permit program approved or

promulgated under this subchapter, it shall be unlawful for any

person to violate any requirement of a permit issued under this

subchapter, or to operate an affected source (as provided in

subchapter IV-A of this chapter), a major source, any other source

(including an area source) subject to standards or regulations

under section 7411 or 7412 of this title, any other source required

to have a permit under parts (!1) C or D of subchapter I of this

chapter, or any other stationary source in a category designated

(in whole or in part) by regulations promulgated by the

Administrator (after notice and public comment) which shall include

a finding setting forth the basis for such designation, except in

compliance with a permit issued by a permitting authority under

this subchapter. (Nothing in this subsection shall be construed to

alter the applicable requirements of this chapter that a permit be

obtained before construction or modification.) The Administrator

may, in the Administrator's discretion and consistent with the

applicable provisions of this chapter, promulgate regulations to

exempt one or more source categories (in whole or in part) from the

requirements of this subsection if the Administrator finds that

compliance with such requirements is impracticable, infeasible, or

unnecessarily burdensome on such categories, except that the

Administrator may not exempt any major source from such

requirements.

(b) Regulations

The Administrator shall promulgate within 12 months after

November 15, 1990, regulations establishing the minimum elements of

a permit program to be administered by any air pollution control

agency. These elements shall include each of the following:

(1) Requirements for permit applications, including a standard

application form and criteria for determining in a timely fashion

the completeness of applications.

(2) Monitoring and reporting requirements.

(3)(A) A requirement under State or local law or interstate

compact that the owner or operator of all sources subject to the

requirement to obtain a permit under this subchapter pay an

annual fee, or the equivalent over some other period, sufficient

to cover all reasonable (direct and indirect) costs required to

develop and administer the permit program requirements of this

subchapter, including section 7661f of this title, including the

reasonable costs of -

(i) reviewing and acting upon any application for such a

permit,

(ii) if the owner or operator receives a permit for such

source, whether before or after November 15, 1990, implementing

and enforcing the terms and conditions of any such permit (not

including any court costs or other costs associated with any

enforcement action),

(iii) emissions and ambient monitoring,

(iv) preparing generally applicable regulations, or guidance,

(v) modeling, analyses, and demonstrations, and

(vi) preparing inventories and tracking emissions.

(B) The total amount of fees collected by the permitting

authority shall conform to the following requirements:

(i) The Administrator shall not approve a program as meeting

the requirements of this paragraph unless the State

demonstrates that, except as otherwise provided in

subparagraphs (ii) through (v) of this subparagraph, the

program will result in the collection, in the aggregate, from

all sources subject to subparagraph (A), of an amount not less

than $25 per ton of each regulated pollutant, or such other

amount as the Administrator may determine adequately reflects

the reasonable costs of the permit program.

(ii) As used in this subparagraph, the term "regulated

pollutant" shall mean (I) a volatile organic compound; (II)

each pollutant regulated under section 7411 or 7412 of this

title; and (III) each pollutant for which a national primary

ambient air quality standard has been promulgated (except that

carbon monoxide shall be excluded from this reference).

(iii) In determining the amount under clause (i), the

permitting authority is not required to include any amount of

regulated pollutant emitted by any source in excess of 4,000

tons per year of that regulated pollutant.

(iv) The requirements of clause (i) shall not apply if the

permitting authority demonstrates that collecting an amount

less than the amount specified under clause (i) will meet the

requirements of subparagraph (A).

(v) The fee calculated under clause (i) shall be increased

(consistent with the need to cover the reasonable costs

authorized by subparagraph (A)) in each year beginning after

1990, by the percentage, if any, by which the Consumer Price

Index for the most recent calendar year ending before the

beginning of such year exceeds the Consumer Price Index for the

calendar year 1989. For purposes of this clause -

(I) the Consumer Price Index for any calendar year is the

average of the Consumer Price Index for all-urban consumers

published by the Department of Labor, as of the close of the

12-month period ending on August 31 of each calendar year,

and

(II) the revision of the Consumer Price Index which is most

consistent with the Consumer Price Index for calendar year

1989 shall be used.

(C)(i) If the Administrator determines, under subsection (d) of

this section, that the fee provisions of the operating permit

program do not meet the requirements of this paragraph, or if the

Administrator makes a determination, under subsection (i) of this

section, that the permitting authority is not adequately

administering or enforcing an approved fee program, the

Administrator may, in addition to taking any other action

authorized under this subchapter, collect reasonable fees from

the sources identified under subparagraph (A). Such fees shall be

designed solely to cover the Administrator's costs of

administering the provisions of the permit program promulgated by

the Administrator.

(ii) Any source that fails to pay fees lawfully imposed by the

Administrator under this subparagraph shall pay a penalty of 50

percent of the fee amount, plus interest on the fee amount

computed in accordance with section 6621(a)(2) of title 26

(relating to computation of interest on underpayment of Federal

taxes).

(iii) Any fees, penalties, and interest collected under this

subparagraph shall be deposited in a special fund in the United

States Treasury for licensing and other services, which

thereafter shall be available for appropriation, to remain

available until expended, subject to appropriation, to carry out

the Agency's activities for which the fees were collected. Any

fee required to be collected by a State, local, or interstate

agency under this subsection shall be utilized solely to cover

all reasonable (direct and indirect) costs required to support

the permit program as set forth in subparagraph (A).

(4) Requirements for adequate personnel and funding to

administer the program.

(5) A requirement that the permitting authority have adequate

authority to:

(A) issue permits and assure compliance by all sources

required to have a permit under this subchapter with each

applicable standard, regulation or requirement under this

chapter;

(B) issue permits for a fixed term, not to exceed 5 years;

emission limitations and other requirements in an applicable

implementation plan;

(D) terminate, modify, or revoke and reissue permits for

cause;

(E) enforce permits, permit fee requirements, and the

requirement to obtain a permit, including authority to recover

civil penalties in a maximum amount of not less than $10,000

per day for each violation, and provide appropriate criminal

penalties; and

(F) assure that no permit will be issued if the Administrator

objects to its issuance in a timely manner under this

subchapter.

(6) Adequate, streamlined, and reasonable procedures for

expeditiously determining when applications are complete, for

processing such applications, for public notice, including

offering an opportunity for public comment and a hearing, and for

expeditious review of permit actions, including applications,

renewals, or revisions, and including an opportunity for judicial

review in State court of the final permit action by the

applicant, any person who participated in the public comment

process, and any other person who could obtain judicial review of

that action under applicable law.

(7) To ensure against unreasonable delay by the permitting

authority, adequate authority and procedures to provide that a

failure of such permitting authority to act on a permit

application or permit renewal application (in accordance with the

time periods specified in section 7661b of this title or, as

appropriate, subchapter IV-A of this chapter) shall be treated as

a final permit action solely for purposes of obtaining judicial

review in State court of an action brought by any person referred

to in paragraph (6) to require that action be taken by the

permitting authority on such application without additional

delay.

(8) Authority, and reasonable procedures consistent with the

need for expeditious action by the permitting authority on permit

applications and related matters, to make available to the public

any permit application, compliance plan, permit, and monitoring

or compliance report under section 7661b(e) of this title,

subject to the provisions of section 7414(c) of this title.

(9) A requirement that the permitting authority, in the case of

permits with a term of 3 or more years for major sources, shall

require revisions to the permit to incorporate applicable

standards and regulations promulgated under this chapter after

the issuance of such permit. Such revisions shall occur as

expeditiously as practicable and consistent with the procedures

established under paragraph (6) but not later than 18 months

after the promulgation of such standards and regulations. No such

revision shall be required if the effective date of the standards

or regulations is a date after the expiration of the permit term.

Such permit revision shall be treated as a permit renewal if it

complies with the requirements of this subchapter regarding

renewals.

(10) Provisions to allow changes within a permitted facility

(or one operating pursuant to section 7661b(d) of this title)

without requiring a permit revision, if the changes are not

modifications under any provision of subchapter I of this chapter

and the changes do not exceed the emissions allowable under the

permit (whether expressed therein as a rate of emissions or in

terms of total emissions: (!2) Provided, That the facility

provides the Administrator and the permitting authority with

written notification in advance of the proposed changes which

shall be a minimum of 7 days, unless the permitting authority

provides in its regulations a different timeframe for

emergencies.

A single permit may be issued for a facility with multiple

sources.

(d) Submission and approval

(1) Not later than 3 years after November 15, 1990, the Governor

of each State shall develop and submit to the Administrator a

permit program under State or local law or under an interstate

compact meeting the requirements of this subchapter. In addition,

the Governor shall submit a legal opinion from the attorney general

(or the attorney for those State air pollution control agencies

that have independent legal counsel), or from the chief legal

officer of an interstate agency, that the laws of the State,

locality, or the interstate compact provide adequate authority to

carry out the program. Not later than 1 year after receiving a

program, and after notice and opportunity for public comment, the

Administrator shall approve or disapprove such program, in whole or

in part. The Administrator may approve a program to the extent that

the program meets the requirements of this chapter, including the

regulations issued under subsection (b) of this section. If the

program is disapproved, in whole or in part, the Administrator

shall notify the Governor of any revisions or modifications

necessary to obtain approval. The Governor shall revise and

resubmit the program for review under this section within 180 days

after receiving notification.

(2)(A) If the Governor does not submit a program as required

under paragraph (1) or if the Administrator disapproves a program

submitted by the Governor under paragraph (1), in whole or in part,

the Administrator may, prior to the expiration of the 18-month

period referred to in subparagraph (B), in the Administrator's

discretion, apply any of the sanctions specified in section 7509(b)

of this title.

(B) If the Governor does not submit a program as required under

paragraph (1), or if the Administrator disapproves any such program

submitted by the Governor under paragraph (1), in whole or in part,

18 months after the date required for such submittal or the date of

such disapproval, as the case may be, the Administrator shall apply

sanctions under section 7509(b) of this title in the same manner

and subject to the same deadlines and other conditions as are

applicable in the case of a determination, disapproval, or finding

under section 7509(a) of this title.

not apply pursuant to this paragraph in any area unless the failure

to submit or the disapproval referred to in subparagraph (A) or (B)

relates to an air pollutant for which such area has been designated

a nonattainment area (as defined in part D of subchapter I of this

chapter).

(3) If a program meeting the requirements of this subchapter has

not been approved in whole for any State, the Administrator shall,

2 years after the date required for submission of such a program

under paragraph (1), promulgate, administer, and enforce a program

under this subchapter for that State.

(e) Suspension

The Administrator shall suspend the issuance of permits promptly

upon publication of notice of approval of a permit program under

this section, but may, in such notice, retain jurisdiction over

permits that have been federally issued, but for which the

administrative or judicial review process is not complete. The

Administrator shall continue to administer and enforce federally

issued permits under this subchapter until they are replaced by a

permit issued by a permitting program. Nothing in this subsection

should be construed to limit the Administrator's ability to enforce

permits issued by a State.

(f) Prohibition

No partial permit program shall be approved unless, at a minimum,

it applies, and ensures compliance with, this subchapter and each

of the following:

(1) All requirements established under subchapter IV-A of this

chapter applicable to "affected sources".

(2) All requirements established under section 7412 of this

title applicable to "major sources", "area sources," and "new

sources".

(3) All requirements of subchapter I of this chapter (other

than section 7412 of this title) applicable to sources required

to have a permit under this subchapter.

Approval of a partial program shall not relieve the State of its

obligation to submit a complete program, nor from the application

of any sanctions under this chapter for failure to submit an

approvable permit program.

(g) Interim approval

If a program (including a partial permit program) submitted under

this subchapter substantially meets the requirements of this

subchapter, but is not fully approvable, the Administrator may by

rule grant the program interim approval. In the notice of final

rulemaking, the Administrator shall specify the changes that must

be made before the program can receive full approval. An interim

approval under this subsection shall expire on a date set by the

Administrator not later than 2 years after such approval, and may

not be renewed. For the period of any such interim approval, the

provisions of subsection (d)(2) of this section, and the obligation

of the Administrator to promulgate a program under this subchapter

for the State pursuant to subsection (d)(3) of this section, shall

be suspended. Such provisions and such obligation of the

Administrator shall apply after the expiration of such interim

approval.

(h) Effective date

The effective date of a permit program, or partial or interim

program, approved under this subchapter, shall be the effective

date of approval by the Administrator. The effective date of a

permit program, or partial permit program, promulgated by the

Administrator shall be the date of promulgation.

(i) Administration and enforcement

(1) Whenever the Administrator makes a determination that a

permitting authority is not adequately administering and enforcing

a program, or portion thereof, in accordance with the requirements

of this subchapter, the Administrator shall provide notice to the

State and may, prior to the expiration of the 18-month period

referred to in paragraph (2), in the Administrator's discretion,

apply any of the sanctions specified in section 7509(b) of this

title.

(2) Whenever the Administrator makes a determination that a

permitting authority is not adequately administering and enforcing

a program, or portion thereof, in accordance with the requirements

of this subchapter, 18 months after the date of the notice under

paragraph (1), the Administrator shall apply the sanctions under

section 7509(b) of this title in the same manner and subject to the

same deadlines and other conditions as are applicable in the case

of a determination, disapproval, or finding under section 7509(a)

of this title.

(3) The sanctions under section 7509(b)(2) of this title shall

not apply pursuant to this subsection in any area unless the

failure to adequately enforce and administer the program relates to

an air pollutant for which such area has been designated a

nonattainment area.

(4) Whenever the Administrator has made a finding under paragraph

(1) with respect to any State, unless the State has corrected such

deficiency within 18 months after the date of such finding, the

Administrator shall, 2 years after the date of such finding,

promulgate, administer, and enforce a program under this subchapter

for that State. Nothing in this paragraph shall be construed to

affect the validity of a program which has been approved under this

subchapter or the authority of any permitting authority acting

under such program until such time as such program is promulgated

by the Administrator under this paragraph.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 502, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2635.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7413, 7511d, 7651g,

7651o, 7661b, 7661c of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "part".

(!2) So in original. A closing parenthesis probably should

precede the colon.

-End-

-CITE-

42 USC Sec. 7661b 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661b. Permit applications

-STATUTE-

(a) Applicable date

Any source specified in section 7661a(a) of this title shall

become subject to a permit program, and required to have a permit,

on the later of the following dates -

(1) the effective date of a permit program or partial or

interim permit program applicable to the source; or

(2) the date such source becomes subject to section 7661a(a) of

this title.

(b) Compliance plan

(1) The regulations required by section 7661a(b) of this title

shall include a requirement that the applicant submit with the

permit application a compliance plan describing how the source will

comply with all applicable requirements under this chapter. The

compliance plan shall include a schedule of compliance, and a

schedule under which the permittee will submit progress reports to

the permitting authority no less frequently than every 6 months.

(2) The regulations shall further require the permittee to

periodically (but no less frequently than annually) certify that

the facility is in compliance with any applicable requirements of

the permit, and to promptly report any deviations from permit

requirements to the permitting authority.

Any person required to have a permit shall, not later than 12

months after the date on which the source becomes subject to a

permit program approved or promulgated under this subchapter, or

such earlier date as the permitting authority may establish, submit

to the permitting authority a compliance plan and an application

for a permit signed by a responsible official, who shall certify

the accuracy of the information submitted. The permitting authority

shall approve or disapprove a completed application (consistent

with the procedures established under this subchapter for

consideration of such applications), and shall issue or deny the

permit, within 18 months after the date of receipt thereof, except

that the permitting authority shall establish a phased schedule for

acting on permit applications submitted within the first full year

after the effective date of a permit program (or a partial or

interim program). Any such schedule shall assure that at least

one-third of such permits will be acted on by such authority

annually over a period of not to exceed 3 years after such

effective date. Such authority shall establish reasonable

procedures to prioritize such approval or disapproval actions in

the case of applications for construction or modification under the

applicable requirements of this chapter.

(d) Timely and complete applications

Except for sources required to have a permit before construction

or modification under the applicable requirements of this chapter,

if an applicant has submitted a timely and complete application for

a permit required by this subchapter (including renewals), but

final action has not been taken on such application, the source's

failure to have a permit shall not be a violation of this chapter,

unless the delay in final action was due to the failure of the

applicant timely to submit information required or requested to

process the application. No source required to have a permit under

this subchapter shall be in violation of section 7661a(a) of this

title before the date on which the source is required to submit an

application under subsection (c) of this section.

(e) Copies; availability

A copy of each permit application, compliance plan (including the

schedule of compliance), emissions or compliance monitoring report,

certification, and each permit issued under this subchapter, shall

be available to the public. If an applicant or permittee is

required to submit information entitled to protection from

disclosure under section 7414(c) of this title, the applicant or

permittee may submit such information separately. The requirements

of section 7414(c) of this title shall apply to such information.

The contents of a permit shall not be entitled to protection under

section 7414(c) of this title.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 503, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2641.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7413, 7661a, 7661c of

this title.

-End-

-CITE-

42 USC Sec. 7661c 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661c. Permit requirements and conditions

-STATUTE-

(a) Conditions

Each permit issued under this subchapter shall include

enforceable emission limitations and standards, a schedule of

compliance, a requirement that the permittee submit to the

permitting authority, no less often than every 6 months, the

results of any required monitoring, and such other conditions as

are necessary to assure compliance with applicable requirements of

this chapter, including the requirements of the applicable

implementation plan.

(b) Monitoring and analysis

The Administrator may by rule prescribe procedures and methods

for determining compliance and for monitoring and analysis of

pollutants regulated under this chapter, but continuous emissions

monitoring need not be required if alternative methods are

available that provide sufficiently reliable and timely information

for determining compliance. Nothing in this subsection shall be

construed to affect any continuous emissions monitoring requirement

of subchapter IV-A of this chapter, or where required elsewhere in

this chapter.

Each permit issued under this subchapter shall set forth

inspection, entry, monitoring, compliance certification, and

reporting requirements to assure compliance with the permit terms

and conditions. Such monitoring and reporting requirements shall

conform to any applicable regulation under subsection (b) of this

section. Any report required to be submitted by a permit issued to

a corporation under this subchapter shall be signed by a

responsible corporate official, who shall certify its accuracy.

(d) General permits

The permitting authority may, after notice and opportunity for

public hearing, issue a general permit covering numerous similar

sources. Any general permit shall comply with all requirements

applicable to permits under this subchapter. No source covered by a

general permit shall thereby be relieved from the obligation to

file an application under section 7661b of this title.

(e) Temporary sources

The permitting authority may issue a single permit authorizing

emissions from similar operations at multiple temporary locations.

No such permit shall be issued unless it includes conditions that

will assure compliance with all the requirements of this chapter at

all authorized locations, including, but not limited to, ambient

standards and compliance with any applicable increment or

visibility requirements under part C of subchapter I of this

chapter. Any such permit shall in addition require the owner or

operator to notify the permitting authority in advance of each

change in location. The permitting authority may require a separate

permit fee for operations at each location.

(f) Permit shield

Compliance with a permit issued in accordance with this

subchapter shall be deemed compliance with section 7661a of this

title. Except as otherwise provided by the Administrator by rule,

the permit may also provide that compliance with the permit shall

be deemed compliance with other applicable provisions of this

chapter that relate to the permittee if -

(1) the permit includes the applicable requirements of such

provisions, or

(2) the permitting authority in acting on the permit

application makes a determination relating to the permittee that

such other provisions (which shall be referred to in such

determination) are not applicable and the permit includes the

determination or a concise summary thereof.

Nothing in the preceding sentence shall alter or affect the

provisions of section 7603 of this title, including the authority

of the Administrator under that section.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 504, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2642.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7651g of this title.

-End-

-CITE-

42 USC Sec. 7661d 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661d. Notification to Administrator and contiguous States

-STATUTE-

(a) Transmission and notice

(1) Each permitting authority -

(A) shall transmit to the Administrator a copy of each permit

application (and any application for a permit modification or

renewal) or such portion thereof, including any compliance plan,

as the Administrator may require to effectively review the

application and otherwise to carry out the Administrator's

responsibilities under this chapter, and

(B) shall provide to the Administrator a copy of each permit

proposed to be issued and issued as a final permit.

(2) The permitting authority shall notify all States -

(A) whose air quality may be affected and that are contiguous

to the State in which the emission originates, or

(B) that are within 50 miles of the source,

of each permit application or proposed permit forwarded to the

Administrator under this section, and shall provide an opportunity

for such States to submit written recommendations respecting the

issuance of the permit and its terms and conditions. If any part of

those recommendations are not accepted by the permitting authority,

such authority shall notify the State submitting the

recommendations and the Administrator in writing of its failure to

accept those recommendations and the reasons therefor.

(b) Objection by EPA

(1) If any permit contains provisions that are determined by the

Administrator as not in compliance with the applicable requirements

of this chapter, including the requirements of an applicable

implementation plan, the Administrator shall, in accordance with

this subsection, object to its issuance. The permitting authority

shall respond in writing if the Administrator (A) within 45 days

after receiving a copy of the proposed permit under subsection

(a)(1) of this section, or (B) within 45 days after receiving

notification under subsection (a)(2) of this section, objects in

writing to its issuance as not in compliance with such

requirements. With the objection, the Administrator shall provide a

statement of the reasons for the objection. A copy of the objection

and statement shall be provided to the applicant.

(2) If the Administrator does not object in writing to the

issuance of a permit pursuant to paragraph (1), any person may

petition the Administrator within 60 days after the expiration of

the 45-day review period specified in paragraph (1) to take such

action. A copy of such petition shall be provided to the permitting

authority and the applicant by the petitioner. The petition shall

be based only on objections to the permit that were raised with

reasonable specificity during the public comment period provided by

the permitting agency (unless the petitioner demonstrates in the

petition to the Administrator that it was impracticable to raise

such objections within such period or unless the grounds for such

objection arose after such period). The petition shall identify all

such objections. If the permit has been issued by the permitting

agency, such petition shall not postpone the effectiveness of the

permit. The Administrator shall grant or deny such petition within

60 days after the petition is filed. The Administrator shall issue

an objection within such period if the petitioner demonstrates to

the Administrator that the permit is not in compliance with the

requirements of this chapter, including the requirements of the

applicable implementation plan. Any denial of such petition shall

be subject to judicial review under section 7607 of this title. The

Administrator shall include in regulations under this subchapter

provisions to implement this paragraph. The Administrator may not

delegate the requirements of this paragraph.

(3) Upon receipt of an objection by the Administrator under this

subsection, the permitting authority may not issue the permit

unless it is revised and issued in accordance with subsection (c)

of this section. If the permitting authority has issued a permit

prior to receipt of an objection by the Administrator under

paragraph (2) of this subsection, the Administrator shall modify,

terminate, or revoke such permit and the permitting authority may

thereafter only issue a revised permit in accordance with

subsection (c) of this section.

If the permitting authority fails, within 90 days after the date

of an objection under subsection (b) of this section, to submit a

permit revised to meet the objection, the Administrator shall issue

or deny the permit in accordance with the requirements of this

subchapter. No objection shall be subject to judicial review until

the Administrator takes final action to issue or deny a permit

under this subsection.

(d) Waiver of notification requirements

(1) The Administrator may waive the requirements of subsections

(a) and (b) of this section at the time of approval of a permit

program under this subchapter for any category (including any

class, type, or size within such category) of sources covered by

the program other than major sources.

(2) The Administrator may, by regulation, establish categories of

sources (including any class, type, or size within such category)

to which the requirements of subsections (a) and (b) of this

section shall not apply. The preceding sentence shall not apply to

major sources.

(3) The Administrator may exclude from any waiver under this

subsection notification under subsection (a)(2) of this section.

Any waiver granted under this subsection may be revoked or modified

by the Administrator by rule.

(e) Refusal of permitting authority to terminate, modify, or revoke

and reissue

If the Administrator finds that cause exists to terminate,

modify, or revoke and reissue a permit under this subchapter, the

Administrator shall notify the permitting authority and the source

of the Administrator's finding. The permitting authority shall,

within 90 days after receipt of such notification, forward to the

Administrator under this section a proposed determination of

termination, modification, or revocation and reissuance, as

appropriate. The Administrator may extend such 90 day period for an

additional 90 days if the Administrator finds that a new or revised

permit application is necessary, or that the permitting authority

must require the permittee to submit additional information. The

Administrator may review such proposed determination under the

provisions of subsections (a) and (b) of this section. If the

permitting authority fails to submit the required proposed

determination, or if the Administrator objects and the permitting

authority fails to resolve the objection within 90 days, the

Administrator may, after notice and in accordance with fair and

reasonable procedures, terminate, modify, or revoke and reissue the

permit.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 505, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2643.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7412 of this title.

-End-

-CITE-

42 USC Sec. 7661e 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661e. Other authorities

-STATUTE-

(a) In general

Nothing in this subchapter shall prevent a State, or interstate

permitting authority, from establishing additional permitting

requirements not inconsistent with this chapter.

(b) Permits implementing acid rain provisions

The provisions of this subchapter, including provisions regarding

schedules for submission and approval or disapproval of permit

applications, shall apply to permits implementing the requirements

of subchapter IV-A of this chapter except as modified by that

subchapter.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 506, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2645.)

-End-

-CITE-

42 USC Sec. 7661f 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER V - PERMITS

-HEAD-

Sec. 7661f. Small business stationary source technical and

environmental compliance assistance program

-STATUTE-

(a) Plan revisions

Consistent with sections 7410 and 7412 of this title, each State

shall, after reasonable notice and public hearings, adopt and

submit to the Administrator as part of the State implementation

plan for such State or as a revision to such State implementation

plan under section 7410 of this title, plans for establishing a

small business stationary source technical and environmental

compliance assistance program. Such submission shall be made within

24 months after November 15, 1990. The Administrator shall approve

such program if it includes each of the following:

(1) Adequate mechanisms for developing, collecting, and

coordinating information concerning compliance methods and

technologies for small business stationary sources, and programs

to encourage lawful cooperation among such sources and other

persons to further compliance with this chapter.

(2) Adequate mechanisms for assisting small business stationary

sources with pollution prevention and accidental release

detection and prevention, including providing information

concerning alternative technologies, process changes, products,

and methods of operation that help reduce air pollution.

(3) A designated State office within the relevant State agency

to serve as ombudsman for small business stationary sources in

connection with the implementation of this chapter.

(4) A compliance assistance program for small business

stationary sources which assists small business stationary

sources in determining applicable requirements and in receiving

permits under this chapter in a timely and efficient manner.

(5) Adequate mechanisms to assure that small business

stationary sources receive notice of their rights under this

chapter in such manner and form as to assure reasonably adequate

time for such sources to evaluate compliance methods and any

relevant or applicable proposed or final regulation or standard

issued under this chapter.

(6) Adequate mechanisms for informing small business stationary

sources of their obligations under this chapter, including

mechanisms for referring such sources to qualified auditors or,

at the option of the State, for providing audits of the

operations of such sources to determine compliance with this

chapter.

(7) Procedures for consideration of requests from a small

business stationary source for modification of -

(A) any work practice or technological method of compliance,

(B) the schedule of milestones for implementing such work

practice or method of compliance preceding any applicable

compliance date,

based on the technological and financial capability of any such

small business stationary source. No such modification may be

granted unless it is in compliance with the applicable

requirements of this chapter, including the requirements of the

applicable implementation plan. Where such applicable

requirements are set forth in Federal regulations, only

modifications authorized in such regulations may be allowed.

(b) Program

The Administrator shall establish within 9 months after November

15, 1990, a small business stationary source technical and

environmental compliance assistance program. Such program shall -

(1) assist the States in the development of the program

required under subsection (a) of this section (relating to

assistance for small business stationary sources);

(2) issue guidance for the use of the States in the

implementation of these programs that includes alternative

control technologies and pollution prevention methods applicable

to small business stationary sources; and

(3) provide for implementation of the program provisions

required under subsection (a)(4) of this section in any State

that fails to submit such a program under that subsection.

(1) Except as provided in paragraphs (2) and (3), for purposes of

this section, the term "small business stationary source" means a

stationary source that -

(A) is owned or operated by a person that employs 100 or fewer

individuals,

(B) is a small business concern as defined in the Small

Business Act [15 U.S.C. 631 et seq.];

(D) does not emit 50 tons or more per year of any regulated

pollutant; and

(E) emits less than 75 tons per year of all regulated

pollutants.

(2) Upon petition by a source, the State may, after notice and

opportunity for public comment, include as a small business

stationary source for purposes of this section any stationary

source which does not meet the criteria of subparagraphs (!1) (C),

(D), or (E) of paragraph (1) but which does not emit more than 100

tons per year of all regulated pollutants.

(3)(A) The Administrator, in consultation with the Administrator

of the Small Business Administration and after providing notice and

opportunity for public comment, may exclude from the small business

stationary source definition under this section any category or

subcategory of sources that the Administrator determines to have

sufficient technical and financial capabilities to meet the

requirements of this chapter without the application of this

subsection.

(B) The State, in consultation with the Administrator and the

Administrator of the Small Business Administration and after

providing notice and opportunity for public hearing, may exclude

from the small business stationary source definition under this

section any category or subcategory of sources that the State

determines to have sufficient technical and financial capabilities

to meet the requirements of this chapter without the application of

this subsection.

(d) Monitoring

The Administrator shall direct the Agency's Office of Small and

Disadvantaged Business Utilization through the Small Business

Ombudsman (hereinafter in this section referred to as the

"Ombudsman") to monitor the small business stationary source

technical and environmental compliance assistance program under

this section. In carrying out such monitoring activities, the

Ombudsman shall -

(1) render advisory opinions on the overall effectiveness of

the Small Business Stationary Source Technical and Environmental

Compliance Assistance Program, difficulties encountered, and

degree and severity of enforcement;

(2) make periodic reports to the Congress on the compliance of

the Small Business Stationary Source Technical and Environmental

Compliance Assistance Program with the requirements of the

Paperwork Reduction Act,(!2) the Regulatory Flexibility Act [5

U.S.C. 601 et seq.], and the Equal Access to Justice Act;

(3) review information to be issued by the Small Business

Stationary Source Technical and Environmental Compliance

Assistance Program for small business stationary sources to

ensure that the information is understandable by the layperson;

and

(4) have the Small Business Stationary Source Technical and

Environmental Compliance Assistance Program serve as the

secretariat for the development and dissemination of such reports

and advisory opinions.

(e) Compliance Advisory Panel

(1) There shall be created a Compliance Advisory Panel

(hereinafter referred to as the "Panel") on the State level of not

less than 7 individuals. This Panel shall -

(A) render advisory opinions concerning the effectiveness of

the small business stationary source technical and environmental

compliance assistance program, difficulties encountered, and

degree and severity of enforcement;

(B) make periodic reports to the Administrator concerning the

compliance of the State Small Business Stationary Source

Technical and Environmental Compliance Assistance Program with

the requirements of the Paperwork Reduction Act,(!2) the

Regulatory Flexibility Act [5 U.S.C. 601 et seq.], and the Equal

Access to Justice Act;

assure such information is understandable by the layperson; and

(D) have the Small Business Stationary Source Technical and

Environmental Compliance Assistance Program serve as the

secretariat for the development and dissemination of such reports

and advisory opinions.

(2) The Panel shall consist of -

(A) 2 members, who are not owners, or representatives of

owners, of small business stationary sources, selected by the

Governor to represent the general public;

(B) 2 members selected by the State legislature who are owners,

or who represent owners, of small business stationary sources (1

member each by the majority and minority leadership of the lower

house, or in the case of a unicameral State legislature, 2

members each shall be selected by the majority leadership and the

minority leadership, respectively, of such legislature, and

subparagraph (C) shall not apply);

or who represent owners, of small business stationary sources (1

member each by the majority and minority leadership of the upper

house, or the equivalent State entity); and

(D) 1 member selected by the head of the department or agency

of the State responsible for air pollution permit programs to

represent that agency.

(f) Fees

The State (or the Administrator) may reduce any fee required

under this chapter to take into account the financial resources of

small business stationary sources.

(g) Continuous emission monitors

In developing regulations and CTGs under this chapter that

contain continuous emission monitoring requirements, the

Administrator, consistent with the requirements of this chapter,

before applying such requirements to small business stationary

sources, shall consider the necessity and appropriateness of such

requirements for such sources. Nothing in this subsection shall

affect the applicability of subchapter IV-A of this chapter

provisions relating to continuous emissions monitoring.

(h) Control technique guidelines

The Administrator shall consider, consistent with the

requirements of this chapter, the size, type, and technical

capabilities of small business stationary sources (and sources

which are eligible under subsection (c)(2) of this section to be

treated as small business stationary sources) in developing CTGs

applicable to such sources under this chapter.

-SOURCE-

(July 14, 1955, ch. 360, title V, Sec. 507, as added Pub. L.

101-549, title V, Sec. 501, Nov. 15, 1990, 104 Stat. 2645.)

-REFTEXT-

REFERENCES IN TEXT

The Small Business Act, referred to in subsec. (c)(1)(B), is Pub.

L. 85-536, July 18, 1958, 72 Stat. 384, as amended, which is

classified generally to chapter 14A (Sec. 631 et seq.) of Title 15,

Commerce and Trade. For complete classification of this Act to the

Code, see Short Title note set out under section 631 of Title 15

and Tables.

The Paperwork Reduction Act, referred to in subsecs. (d)(2) and

(e)(1)(B), probably means the Paperwork Reduction Act of 1980, Pub.

L. 96-511, Dec. 11, 1980, 94 Stat. 2812, as amended, which was

classified principally to chapter 35 (Sec. 3501 et seq.) of Title

44, Public Printing and Documents, prior to the general amendment

of that chapter by Pub. L. 104-13, Sec. 2, May 22, 1995, 109 Stat.

163. For complete classification of this Act to the Code, see Short

Title of 1980 Amendment note set out under section 101 of Title 44

and Tables.

The Regulatory Flexibility Act, referred to in subsecs. (d)(2)

and (e)(1)(B), is Pub. L. 96-354, Sept. 19, 1980, 94 Stat. 1164,

which is classified generally to chapter 6 (Sec. 601 et seq.) of

Title 5, Government Organization and Employees. For complete

classification of this Act to the Code, see Short Title note set

out under section 601 of Title 5 and Tables.

The Equal Access to Justice Act, referred to in subsecs. (d)(2)

and (e)(1)(B), is title II of Pub. L. 96-481, Oct. 21, 1980, 94

Stat. 2325. For complete classification of this Act to the Code,

see Short Title note set out under section 504 of Title 5.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7661a of this title.

-FOOTNOTE-

(!1) So in original. Probably should be "subparagraph".

(!2) See References in Text note below.

-End-

-CITE-

42 USC SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-SECREF-

SUBCHAPTER REFERRED TO IN OTHER SECTIONS

This subchapter is referred to in sections 7412, 7413, 7420,

7604, 7607, 7612 of this title.

-End-

-CITE-

42 USC Sec. 7671 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671. Definitions

-STATUTE-

As used in this subchapter -

(1) Appliance

The term "appliance" means any device which contains and uses a

class I or class II substance as a refrigerant and which is used

for household or commercial purposes, including any air

conditioner, refrigerator, chiller, or freezer.

(2) Baseline year

The term "baseline year" means -

(A) the calendar year 1986, in the case of any class I

substance listed in Group I or II under section 7671a(a) of

this title,

(B) the calendar year 1989, in the case of any class I

substance listed in Group III, IV, or V under section 7671a(a)

of this title, and

Administrator, in the case of -

(i) any substance added to the list of class I substances

after the publication of the initial list under section

7671a(a) of this title, and

(ii) any class II substance.

(3) Class I substance

The term "class I substance" means each of the substances

listed as provided in section 7671a(a) of this title.

(4) Class II substance

The term "class II substance" means each of the substances

listed as provided in section 7671a(b) of this title.

(5) Commissioner

The term "Commissioner" means the Commissioner of the Food and

Drug Administration.

(6) Consumption

The term "consumption" means, with respect to any substance,

the amount of that substance produced in the United States, plus

the amount imported, minus the amount exported to Parties to the

Montreal Protocol. Such term shall be construed in a manner

consistent with the Montreal Protocol.

(7) Import

The term "import" means to land on, bring into, or introduce

into, or attempt to land on, bring into, or introduce into, any

place subject to the jurisdiction of the United States, whether

or not such landing, bringing, or introduction constitutes an

importation within the meaning of the customs laws of the United

States.

(8) Medical device

The term "medical device" means any device (as defined in the

Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321)), diagnostic

product, drug (as defined in the Federal Food, Drug, and Cosmetic

Act), and drug delivery system -

(A) if such device, product, drug, or drug delivery system

utilizes a class I or class II substance for which no safe and

effective alternative has been developed, and where necessary,

approved by the Commissioner; and

(B) if such device, product, drug, or drug delivery system,

has, after notice and opportunity for public comment, been

approved and determined to be essential by the Commissioner in

consultation with the Administrator.

(9) Montreal Protocol

The terms "Montreal Protocol" and "the Protocol" mean the

Montreal Protocol on Substances that Deplete the Ozone Layer, a

protocol to the Vienna Convention for the Protection of the Ozone

Layer, including adjustments adopted by Parties thereto and

amendments that have entered into force.

(10) Ozone-depletion potential

The term "ozone-depletion potential" means a factor established

by the Administrator to reflect the ozone-depletion potential of

a substance, on a mass per kilogram basis, as compared to

chlorofluorocarbon-11 (CFC-11). Such factor shall be based upon

the substance's atmospheric lifetime, the molecular weight of

bromine and chlorine, and the substance's ability to be

photolytically disassociated, and upon other factors determined

to be an accurate measure of relative ozone-depletion potential.

(11) Produce, produced, and production

The terms "produce", "produced", and "production", refer to the

manufacture of a substance from any raw material or feedstock

chemical, but such terms do not include -

(A) the manufacture of a substance that is used and entirely

consumed (except for trace quantities) in the manufacture of

other chemicals, or

(B) the reuse or recycling of a substance.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 601, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2649.)

-REFTEXT-

REFERENCES IN TEXT

The customs laws of the United States, referred to in par. (7),

are classified generally to Title 19, Customs Duties.

The Federal Food, Drug, and Cosmetic Act, referred to in par.

(8), is act June 25, 1938, ch. 675, 52 Stat. 1040, as amended,

which is classified generally to chapter 9 (Sec. 301 et seq.) of

Title 21, Food and Drugs. For complete classification of this Act

to the Code, see section 301 of Title 21 and Tables.

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7671a, 7671i of this

title.

-End-

-CITE-

42 USC Sec. 7671a 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671a. Listing of class I and class II substances

-STATUTE-

(a) List of class I substances

Within 60 days after November 15, 1990, the Administrator shall

publish an initial list of class I substances, which list shall

contain the following substances:

Group I

chlorofluorocarbon-11 (CFC-11)

chlorofluorocarbon-12 (CFC-12)

chlorofluorocarbon-113 (CFC-113)

chlorofluorocarbon-114 (CFC-114)

chlorofluorocarbon-115 (CFC-115)

Group II

halon-1211

halon-1301

halon-2402

Group III

chlorofluorocarbon-13 (CFC-13)

chlorofluorocarbon-111 (CFC-111)

chlorofluorocarbon-112 (CFC-112)

chlorofluorocarbon-211 (CFC-211)

chlorofluorocarbon-212 (CFC-212)

chlorofluorocarbon-213 (CFC-213)

chlorofluorocarbon-214 (CFC-214)

chlorofluorocarbon-215 (CFC-215)

chlorofluorocarbon-216 (CFC-216)

chlorofluorocarbon-217 (CFC-217)

Group IV

carbon tetrachloride

Group V

methyl chloroform

The initial list under this subsection shall also include the

isomers of the substances listed above, other than

1,1,2-trichloroethane (an isomer of methyl chloroform). Pursuant to

subsection (c) of this section, the Administrator shall add to the

list of class I substances any other substance that the

Administrator finds causes or contributes significantly to harmful

effects on the stratospheric ozone layer. The Administrator shall,

pursuant to subsection (c) of this section, add to such list all

substances that the Administrator determines have an ozone

depletion potential of 0.2 or greater.

(b) List of class II substances

Simultaneously with publication of the initial list of class I

substances, the Administrator shall publish an initial list of

class II substances, which shall contain the following substances:

hydrochlorofluorocarbon-21 (HCFC-21)

hydrochlorofluorocarbon-22 (HCFC-22)

hydrochlorofluorocarbon-31 (HCFC-31)

hydrochlorofluorocarbon-121 (HCFC-121)

hydrochlorofluorocarbon-122 (HCFC-122)

hydrochlorofluorocarbon-123 (HCFC-123)

hydrochlorofluorocarbon-124 (HCFC-124)

hydrochlorofluorocarbon-131 (HCFC-131)

hydrochlorofluorocarbon-132 (HCFC-132)

hydrochlorofluorocarbon-133 (HCFC-133)

hydrochlorofluorocarbon-141 (HCFC-141)

hydrochlorofluorocarbon-142 (HCFC-142)

hydrochlorofluorocarbon-221 (HCFC-221)

hydrochlorofluorocarbon-222 (HCFC-222)

hydrochlorofluorocarbon-223 (HCFC-223)

hydrochlorofluorocarbon-224 (HCFC-224)

hydrochlorofluorocarbon-225 (HCFC-225)

hydrochlorofluorocarbon-226 (HCFC-226)

hydrochlorofluorocarbon-231 (HCFC-231)

hydrochlorofluorocarbon-232 (HCFC-232)

hydrochlorofluorocarbon-233 (HCFC-233)

hydrochlorofluorocarbon-234 (HCFC-234)

hydrochlorofluorocarbon-235 (HCFC-235)

hydrochlorofluorocarbon-241 (HCFC-241)

hydrochlorofluorocarbon-242 (HCFC-242)

hydrochlorofluorocarbon-243 (HCFC-243)

hydrochlorofluorocarbon-244 (HCFC-244)

hydrochlorofluorocarbon-251 (HCFC-251)

hydrochlorofluorocarbon-252 (HCFC-252)

hydrochlorofluorocarbon-253 (HCFC-253)

hydrochlorofluorocarbon-261 (HCFC-261)

hydrochlorofluorocarbon-262 (HCFC-262)

hydrochlorofluorocarbon-271 (HCFC-271)

The initial list under this subsection shall also include the

isomers of the substances listed above. Pursuant to subsection (c)

of this section, the Administrator shall add to the list of class

II substances any other substance that the Administrator finds is

known or may reasonably be anticipated to cause or contribute to

harmful effects on the stratospheric ozone layer.

(1) The Administrator may add, by rule, in accordance with the

criteria set forth in subsection (a) or (b) of this section, as the

case may be, any substance to the list of class I or class II

substances under subsection (a) or (b) of this section. For

purposes of exchanges under section 7661f (!1) of this title,

whenever a substance is added to the list of class I substances the

Administrator shall, to the extent consistent with the Montreal

Protocol, assign such substance to existing Group I, II, III, IV,

or V or place such substance in a new Group.

(2) Periodically, but not less frequently than every 3 years

after November 15, 1990, the Administrator shall list, by rule, as

additional class I or class II substances those substances which

the Administrator finds meet the criteria of subsection (a) or (b)

of this section, as the case may be.

(3) At any time, any person may petition the Administrator to add

a substance to the list of class I or class II substances. Pursuant

to the criteria set forth in subsection (a) or (b) of this section

as the case may be, within 180 days after receiving such a

petition, the Administrator shall either propose to add the

substance to such list or publish an explanation of the petition

denial. In any case where the Administrator proposes to add a

substance to such list, the Administrator shall add, by rule, (or

make a final determination not to add) such substance to such list

within 1 year after receiving such petition. Any petition under

this paragraph shall include a showing by the petitioner that there

are data on the substance adequate to support the petition. If the

Administrator determines that information on the substance is not

sufficient to make a determination under this paragraph, the

Administrator shall use any authority available to the

Administrator, under any law administered by the Administrator, to

acquire such information.

(4) Only a class II substance which is added to the list of class

I substances may be removed from the list of class II substances.

No substance referred to in subsection (a) of this section,

including methyl chloroform, may be removed from the list of class

I substances.

(d) New listed substances

In the case of any substance added to the list of class I or

class II substances after publication of the initial list of such

substances under this section, the Administrator may extend any

schedule or compliance deadline contained in section 7671c or 7671d

of this title to a later date than specified in such sections if

such schedule or deadline is unattainable, considering when such

substance is added to the list. No extension under this subsection

may extend the date for termination of production of any class I

substance to a date more than 7 years after January 1 of the year

after the year in which the substance is added to the list of class

I substances. No extension under this subsection may extend the

date for termination of production of any class II substance to a

date more than 10 years after January 1 of the year after the year

in which the substance is added to the list of class II substances.

(e) Ozone-depletion and global warming potential

Simultaneously with publication of the lists under this section

and simultaneously with any addition to either of such lists, the

Administrator shall assign to each listed substance a numerical

value representing the substance's ozone-depletion potential. In

addition, the Administrator shall publish the chlorine and bromine

loading potential and the atmospheric lifetime of each listed

substance. One year after November 15, 1990 (one year after the

addition of a substance to either of such lists in the case of a

substance added after the publication of the initial lists of such

substances), and after notice and opportunity for public comment,

the Administrator shall publish the global warming potential of

each listed substance. The preceding sentence shall not be

construed to be the basis of any additional regulation under this

chapter. In the case of the substances referred to in table 1, the

ozone-depletion potential shall be as specified in table 1, unless

the Administrator adjusts the substance's ozone-depletion potential

based on criteria referred to in section 7671(10) of this title:

TABLE 1

--------------------------------------------------------------------

Substance Ozone-

depl

etion

pote

ntial

--------------------------------------------------------------------

chlorofluorocarbon-11 (CFC-11) 1.0

chlorofluorocarbon-12 (CFC-12) 1.0

chlorofluorocarbon-13 (CFC-13) 1.0

chlorofluorocarbon-111 (CFC-111) 1.0

chlorofluorocarbon-112 (CFC-112) 1.0

chlorofluorocarbon-113 (CFC-113) 0.8

chlorofluorocarbon-114 (CFC-114) 1.0

chlorofluorocarbon-115 (CFC-115) 0.6

chlorofluorocarbon-211 (CFC-211) 1.0

chlorofluorocarbon-212 (CFC-212) 1.0

chlorofluorocarbon-213 (CFC-213) 1.0

chlorofluorocarbon-214 (CFC-214) 1.0

chlorofluorocarbon-215 (CFC-215) 1.0

chlorofluorocarbon-216 (CFC-216) 1.0

chlorofluorocarbon-217 (CFC-217) 1.0

halon-1211 3.0

halon-1301 10.0

halon-2402 6.0

carbon tetrachloride 1.1

methyl chloroform 0.1

hydrochlorofluorocarbon-22 (HCFC-22) 0.05

hydrochlorofluorocarbon-123 (HCFC-123) 0.02

hydrochlorofluorocarbon-124 (HCFC-124) 0.02

hydrochlorofluorocarbon-141(b) (HCFC-141(b)) 0.1

hydrochlorofluorocarbon-142(b) (HCFC-142(b)) 0.06

--------------------------------------------------------------------

Where the ozone-depletion potential of a substance is specified in

the Montreal Protocol, the ozone-depletion potential specified for

that substance under this section shall be consistent with the

Montreal Protocol.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 602, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2650.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7671, 7671f of this

title.

-FOOTNOTE-

(!1) So in original. Probably should be section "7671f".

-End-

-CITE-

42 USC Sec. 7671b 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671b. Monitoring and reporting requirements

-STATUTE-

(a) Regulations

Within 270 days after November 15, 1990, the Administrator shall

amend the regulations of the Administrator in effect on such date

regarding monitoring and reporting of class I and class II

substances. Such amendments shall conform to the requirements of

this section. The amended regulations shall include requirements

with respect to the time and manner of monitoring and reporting as

required under this section.

(b) Production, import, and export level reports

On a quarterly basis, or such other basis (not less than

annually) as determined by the Administrator, each person who

produced, imported, or exported a class I or class II substance

shall file a report with the Administrator setting forth the amount

of the substance that such person produced, imported, and exported

during the preceding reporting period. Each such report shall be

signed and attested by a responsible officer. No such report shall

be required from a person after April 1 of the calendar year after

such person permanently ceases production, importation, and

exportation of the substance and so notifies the Administrator in

writing.

Unless such information has previously been reported to the

Administrator, on the date on which the first report under

subsection (b) of this section is required to be filed, each person

who produced, imported, or exported a class I substance (other than

a substance added to the list of class I substances after the

publication of the initial list of such substances under this

section) shall file a report with the Administrator setting forth

the amount of such substance that such person produced, imported,

and exported during the baseline year. In the case of a substance

added to the list of class I substances after publication of the

initial list of such substances under this section, the regulations

shall require that each person who produced, imported, or exported

such substance shall file a report with the Administrator within

180 days after the date on which such substance is added to the

list, setting forth the amount of the substance that such person

produced, imported, and exported in the baseline year.

(d) Monitoring and reports to Congress

(1) The Administrator shall monitor and, not less often than

every 3 years following November 15, 1990, submit a report to

Congress on the production, use and consumption of class I and

class II substances. Such report shall include data on domestic

production, use and consumption, and an estimate of worldwide

production, use and consumption of such substances. Not less

frequently than every 6 years the Administrator shall report to

Congress on the environmental and economic effects of any

stratospheric ozone depletion.

(2) The Administrators of the National Aeronautics and Space

Administration and the National Oceanic and Atmospheric

Administration shall monitor, and not less often than every 3 years

following November 15, 1990, submit a report to Congress on the

current average tropospheric concentration of chlorine and bromine

and on the level of stratospheric ozone depletion. Such reports

shall include updated projections of -

(A) peak chlorine loading;

(B) the rate at which the atmospheric abundance of chlorine is

projected to decrease after the year 2000; and

projected to return to a level of two parts per billion.

Such updated projections shall be made on the basis of current

international and domestic controls on substances covered by this

subchapter as well as on the basis of such controls supplemented by

a year 2000 global phase out of all halocarbon emissions (the base

case). It is the purpose of the Congress through the provisions of

this section to monitor closely the production and consumption of

class II substances to assure that the production and consumption

of such substances will not:

(i) increase significantly the peak chlorine loading that is

projected to occur under the base case established for purposes

of this section;

(ii) reduce significantly the rate at which the atmospheric

abundance of chlorine is projected to decrease under the base

case; or

(iii) delay the date by which the average atmospheric

concentration of chlorine is projected under the base case to

return to a level of two parts per billion.

(e) Technology status report in 2015

The Administrator shall review, on a periodic basis, the progress

being made in the development of alternative systems or products

necessary to manufacture and operate appliances without class II

substances. If the Administrator finds, after notice and

opportunity for public comment, that as a result of technological

development problems, the development of such alternative systems

or products will not occur within the time necessary to provide for

the manufacture of such equipment without such substances prior to

the applicable deadlines under section 7671d of this title, the

Administrator shall, not later than January 1, 2015, so inform the

Congress.

(f) Emergency report

If, in consultation with the Administrators of the National

Aeronautics and Space Administration and the National Oceanic and

Atmospheric Administration, and after notice and opportunity for

public comment, the Administrator determines that the global

production, consumption, and use of class II substances are

projected to contribute to an atmospheric chlorine loading in

excess of the base case projections by more than 5/10 ths parts

per billion, the Administrator shall so inform the Congress

immediately. The determination referred to in the preceding

sentence shall be based on the monitoring under subsection (d) of

this section and updated not less often than every 3 years.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 603, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2653.)

-MISC1-

TERMINATION OF REPORTING REQUIREMENTS

For termination, effective May 15, 2000, of provisions in subsec.

(d)(1) of this section relating to submittal of triennial report to

Congress, 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 12th item on page 162 of House Document No. 103-7.

METHANE STUDIES

Section 603 of Pub. L. 101-549 provided that:

"(a) Economically Justified Actions. - Not later than 2 years

after enactment of this Act [Nov. 15, 1990], the Administrator

shall prepare and submit a report to the Congress that identifies

activities, substances, processes, or combinations thereof that

could reduce methane emissions and that are economically and

technologically justified with and without consideration of

environmental benefit.

"(b) Domestic Methane Source Inventory and Control. - Not later

than 2 years after the enactment of this Act [Nov. 15, 1990], the

Administrator, in consultation and coordination with the Secretary

of Energy and the Secretary of Agriculture, shall prepare and

submit to the Congress reports on each of the following:

"(1) Methane emissions associated with natural gas extraction,

transportation, distribution, storage, and use. Such report shall

include an inventory of methane emissions associated with such

activities within the United States. Such emissions include, but

are not limited to, accidental and intentional releases from

natural gas and oil wells, pipelines, processing facilities, and

gas burners. The report shall also include an inventory of

methane generation with such activities.

"(2) Methane emissions associated with coal extraction,

transportation, distribution, storage, and use. Such report shall

include an inventory of methane emissions associated with such

activities within the United States. Such emissions include, but

are not limited to, accidental and intentional releases from

mining shafts, degasification wells, gas recovery wells and

equipment, and from the processing and use of coal. The report

shall also include an inventory of methane generation with such

activities.

"(3) Methane emissions associated with management of solid

waste. Such report shall include an inventory of methane

emissions associated with all forms of waste management in the

United States, including storage, treatment, and disposal.

"(4) Methane emissions associated with agriculture. Such report

shall include an inventory of methane emissions associated with

rice and livestock production in the United States.

"(5) Methane emissions associated with biomass burning. Such

report shall include an inventory of methane emissions associated

with the intentional burning of agricultural wastes, wood,

grasslands, and forests.

"(6) Other methane emissions associated with human activities.

Such report shall identify and inventory other domestic sources

of methane emissions that are deemed by the Administrator and

other such agencies to be significant.

"(c) International Studies. -

"(1) Methane emissions. - Not later than 2 years after the

enactment of this Act [Nov. 15, 1990], the Administrator shall

prepare and submit to the Congress a report on methane emissions

from countries other than the United States. Such report shall

include inventories of methane emissions associated with the

activities listed in subsection (b).

"(2) Preventing increases in methane concentrations. - Not

later than 2 years after the enactment of this Act [Nov. 15,

1990], the Administrator shall prepare and submit to the Congress

a report that analyzes the potential for preventing an increase

in atmospheric concentrations of methane from activities and

sources in other countries. Such report shall identify and

evaluate the technical options for reducing methane emission from

each of the activities listed in subsection (b), as well as other

activities or sources that are deemed by the Administrator in

consultation with other relevant Federal agencies and departments

to be significant and shall include an evaluation of costs. The

report shall identify the emissions reductions that would need to

be achieved to prevent increasing atmospheric concentrations of

methane. The report shall also identify technology transfer

programs that could promote methane emissions reductions in

lesser developed countries.

"(d) Natural Sources. - Not later than 2 years after the

enactment of this Act [Nov. 15, 1990], the Administrator shall

prepare and submit to the Congress a report on -

"(1) methane emissions from biogenic sources such as (A)

tropical, temperate, and subarctic forests, (B) tundra, and (C)

freshwater and saltwater wetlands; and

"(2) the changes in methane emissions from biogenic sources

that may occur as a result of potential increases in temperatures

and atmospheric concentrations of carbon dioxide.

"(e) Study of Measures To Limit Growth in Methane Concentrations.

- Not later than 2 years after the completion of the studies in

subsections (b), (c), and (d), the Administrator shall prepare and

submit to the Congress a report that presents options outlining

measures that could be implemented to stop or reduce the growth in

atmospheric concentrations of methane from sources within the

United States referred to in paragraphs (1) through (6) of

subsection (b). This study shall identify and evaluate the

technical options for reducing methane emissions from each of the

activities listed in subsection (b), as well as other activities or

sources deemed by such agencies to be significant, and shall

include an evaluation of costs, technology, safety, energy, and

other factors. The study shall be based on the other studies under

this section. The study shall also identify programs of the United

States and international lending agencies that could be used to

induce lesser developed countries to undertake measures that will

reduce methane emissions and the resource needs of such programs.

"(f) Information Gathering. - In carrying out the studies under

this section, the provisions and requirements of section 114 of the

Clean Air Act [42 U.S.C. 7414] shall be available for purposes of

obtaining information to carry out such studies.

"(g) Consultation and Coordination. - In preparing the studies

under this section the Administrator shall consult and coordinate

with the Secretary of Energy, the Administrators of the National

Aeronautics and Space Administration and the National Oceanic and

Atmospheric Administration, and the heads of other relevant Federal

agencies and departments. In the case of the studies under

subsections (a), (b), and (e), such consultation and coordination

shall include the Secretary of Agriculture."

-End-

-CITE-

42 USC Sec. 7671c 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671c. Phase-out of production and consumption of class I

substances

-STATUTE-

(a) Production phase-out

Effective on January 1 of each year specified in Table 2, it

shall be unlawful for any person to produce any class I substance

in an annual quantity greater than the relevant percentage

specified in Table 2. The percentages in Table 2 refer to a maximum

allowable production as a percentage of the quantity of the

substance produced by the person concerned in the baseline year.

TABLE 2

--------------------------------------------------------------------

Date Carbon Methyl Other class I

tetrachloride chloroform substances

--------------------------------------------------------------------

1991 100% 100% 85%

1992 90% 100% 80%

1993 80% 90% 75%

1994 70% 85% 65%

1995 15% 70% 50%

1996 15% 50% 40%

1997 15% 50% 15%

1998 15% 50% 15%

1999 15% 50% 15%

2000 20%

2001 20%

--------------------------------------------------------------------

(b) Termination of production of class I substances

Effective January 1, 2000 (January 1, 2002 in the case of methyl

chloroform), it shall be unlawful for any person to produce any

amount of a class I substance.

substances

The Administrator shall promulgate regulations within 10 months

after November 15, 1990, phasing out the production of class I

substances in accordance with this section and other applicable

provisions of this subchapter. The Administrator shall also

promulgate regulations to insure that the consumption of class I

substances in the United States is phased out and terminated in

accordance with the same schedule (subject to the same exceptions

and other provisions) as is applicable to the phase-out and

termination of production of class I substances under this

subchapter.

(d) Exceptions for essential uses of methyl chloroform, medical

devices, and aviation safety

(1) Essential uses of methyl chloroform

Notwithstanding the termination of production required by

subsection (b) of this section, during the period beginning on

January 1, 2002, and ending on January 1, 2005, the

Administrator, after notice and opportunity for public comment,

may, to the extent such action is consistent with the Montreal

Protocol, authorize the production of limited quantities of

methyl chloroform solely for use in essential applications (such

as nondestructive testing for metal fatigue and corrosion of

existing airplane engines and airplane parts susceptible to metal

fatigue) for which no safe and effective substitute is available.

Notwithstanding this paragraph, the authority to produce methyl

chloroform for use in medical devices shall be provided in

accordance with paragraph (2).

(2) Medical devices

Notwithstanding the termination of production required by

subsection (b) of this section, the Administrator, after notice

and opportunity for public comment, shall, to the extent such

action is consistent with the Montreal Protocol, authorize the

production of limited quantities of class I substances solely for

use in medical devices if such authorization is determined by the

Commissioner, in consultation with the Administrator, to be

necessary for use in medical devices.

(3) Aviation safety

(A) Notwithstanding the termination of production required by

subsection (b) of this section, the Administrator, after notice

and opportunity for public comment, may, to the extent such

action is consistent with the Montreal Protocol, authorize the

production of limited quantities of halon-1211

(bromochlorodifluoromethane), halon-1301 (bromotrifluoromethane),

and halon-2402 (dibromotetrafluoroethane) solely for purposes of

aviation safety if the Administrator of the Federal Aviation

Administration, in consultation with the Administrator,

determines that no safe and effective substitute has been

developed and that such authorization is necessary for aviation

safety purposes.

(B) The Administrator of the Federal Aviation Administration

shall, in consultation with the Administrator, examine whether

safe and effective substitutes for methyl chloroform or

alternative techniques will be available for nondestructive

testing for metal fatigue and corrosion of existing airplane

engines and airplane parts susceptible to metal fatigue and

whether an exception for such uses of methyl chloroform under

this paragraph will be necessary for purposes of airline safety

after January 1, 2005 and provide a report to Congress in 1998.

(4) Cap on certain exceptions

Under no circumstances may the authority set forth in

paragraphs (1), (2), and (3) of subsection (d) of this section be

applied to authorize any person to produce a class I substance in

annual quantities greater than 10 percent of that produced by

such person during the baseline year.

(5) Sanitation and food protection

To the extent consistent with the Montreal Protocol's

quarantine and preshipment provisions, the Administrator shall

exempt the production, importation, and consumption of methyl

bromide to fumigate commodities entering or leaving the United

States or any State (or political subdivision thereof) for

purposes of compliance with Animal and Plant Health Inspection

Service requirements or with any international, Federal, State,

or local sanitation or food protection standard.

(6) Critical uses

To the extent consistent with the Montreal Protocol, the

Administrator, after notice and the opportunity for public

comment, and after consultation with other departments or

instrumentalities of the Federal Government having regulatory

authority related to methyl bromide, including the Secretary of

Agriculture, may exempt the production, importation, and

consumption of methyl bromide for critical uses.

(e) Developing countries

(1) Exception

Notwithstanding the phase-out and termination of production

required under subsections (a) and (b) of this section, the

Administrator, after notice and opportunity for public comment,

may, consistent with the Montreal Protocol, authorize the

production of limited quantities of a class I substance in excess

of the amounts otherwise allowable under subsection (a) or (b) of

this section, or both, solely for export to, and use in,

developing countries that are Parties to the Montreal Protocol

and are operating under article 5 of such Protocol. Any

production authorized under this paragraph shall be solely for

purposes of satisfying the basic domestic needs of such

countries.

(2) Cap on exception

(A) Under no circumstances may the authority set forth in

paragraph (1) be applied to authorize any person to produce a

class I substance in any year for which a production percentage

is specified in Table 2 of subsection (a) of this section in an

annual quantity greater than the specified percentage, plus an

amount equal to 10 percent of the amount produced by such person

in the baseline year.

(B) Under no circumstances may the authority set forth in

paragraph (1) be applied to authorize any person to produce a

class I substance in the applicable termination year referred to

in subsection (b) of this section, or in any year thereafter, in

an annual quantity greater than 15 percent of the baseline

quantity of such substance produced by such person.

terminate no later than January 1, 2010 (2012 in the case of

methyl chloroform).

(3) Methyl bromide

Notwithstanding the phaseout and termination of production of

methyl bromide pursuant to subsection (h) of this section, the

Administrator may, consistent with the Montreal Protocol,

authorize the production of limited quantities of methyl bromide,

solely for use in developing countries that are Parties to the

Copenhagen Amendments to the Montreal Protocol.

(f) National security

The President may, to the extent such action is consistent with

the Montreal Protocol, issue such orders regarding production and

use of CFC-114 (chlorofluorocarbon-114), halon-1211, halon-1301,

and halon-2402, at any specified site or facility or on any vessel

as may be necessary to protect the national security interests of

the United States if the President finds that adequate substitutes

are not available and that the production and use of such substance

are necessary to protect such national security interest. Such

orders may include, where necessary to protect such interests, an

exemption from any prohibition or requirement contained in this

subchapter. The President shall notify the Congress within 30 days

of the issuance of an order under this paragraph providing for any

such exemption. Such notification shall include a statement of the

reasons for the granting of the exemption. An exemption under this

paragraph shall be for a specified period which may not exceed one

year. Additional exemptions may be granted, each upon the

President's issuance of a new order under this paragraph. Each such

additional exemption shall be for a specified period which may not

exceed one year. No exemption shall be granted under this paragraph

due to lack of appropriation unless the President shall have

specifically requested such appropriation as a part of the

budgetary process and the Congress shall have failed to make

available such requested appropriation.

(g) Fire suppression and explosion prevention

(1) Notwithstanding the production phase-out set forth in

subsection (a) of this section, the Administrator, after notice and

opportunity for public comment, may, to the extent such action is

consistent with the Montreal Protocol, authorize the production of

limited quantities of halon-1211, halon-1301, and halon-2402 in

excess of the amount otherwise permitted pursuant to the schedule

under subsection (a) of this section solely for purposes of fire

suppression or explosion prevention if the Administrator, in

consultation with the Administrator of the United States Fire

Administration, determines that no safe and effective substitute

has been developed and that such authorization is necessary for

fire suppression or explosion prevention purposes. The

Administrator shall not authorize production under this paragraph

for purposes of fire safety or explosion prevention training or

testing of fire suppression or explosion prevention equipment. In

no event shall the Administrator grant an exception under this

paragraph that permits production after December 31, 1999.

(2) The Administrator shall periodically monitor and assess the

status of efforts to obtain substitutes for the substances referred

to in paragraph (1) for purposes of fire suppression or explosion

prevention and the probability of such substitutes being available

by December 31, 1999. The Administrator, as part of such

assessment, shall consider any relevant assessments under the

Montreal Protocol and the actions of the Parties pursuant to

Article 2B of the Montreal Protocol in identifying essential uses

and in permitting a level of production or consumption that is

necessary to satisfy such uses for which no adequate alternatives

are available after December 31, 1999. The Administrator shall

report to Congress the results of such assessment in 1994 and again

in 1998.

(3) Notwithstanding the termination of production set forth in

subsection (b) of this section, the Administrator, after notice and

opportunity for public comment, may, to the extent consistent with

the Montreal Protocol, authorize the production of limited

quantities of halon-1211, halon-1301, and halon-2402 in the period

after December 31, 1999, and before December 31, 2004, solely for

purposes of fire suppression or explosion prevention in association

with domestic production of crude oil and natural gas energy

supplies on the North Slope of Alaska, if the Administrator, in

consultation with the Administrator of the United States Fire

Administration, determines that no safe and effective substitute

has been developed and that such authorization is necessary for

fire suppression and explosion prevention purposes. The

Administrator shall not authorize production under the paragraph

for purposes of fire safety or explosion prevention training or

testing of fire suppression or explosion prevention equipment. In

no event shall the Administrator authorize under this paragraph any

person to produce any such halon in an amount greater than 3

percent of that produced by such person during the baseline year.

(h) Methyl bromide

Notwithstanding subsections (b) and (d) of this section, the

Administrator shall not terminate production of methyl bromide

prior to January 1, 2005. The Administrator shall promulgate rules

for reductions in, and terminate the production, importation, and

consumption of, methyl bromide under a schedule that is in

accordance with, but not more stringent than, the phaseout schedule

of the Montreal Protocol Treaty as in effect on October 21, 1998.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 604, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2655;

amended Pub. L. 105-277, div. A, Sec. 101(a) [title VII, Sec. 764],

Oct. 21, 1998, 112 Stat. 2681, 2681-36.)

-MISC1-

AMENDMENTS

1998 - Subsec. (d)(5), (6). Pub. L. 105-277, Sec. 101(a) [title

VII, Sec. 764(b)], added pars. (5) and (6).

Subsec. (e)(3). Pub. L. 105-277, Sec. 101(a) [title VII, Sec.

764(c)], added par. (3).

Subsec. (h). Pub. L. 105-277, Sec. 101(a) [title VII, Sec.

764(a)], added subsec. (h).

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7671a, 7671e of this

title.

-End-

-CITE-

42 USC Sec. 7671d 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671d. Phase-out of production and consumption of class II

substances

-STATUTE-

(a) Restriction of use of class II substances

Effective January 1, 2015, it shall be unlawful for any person to

introduce into interstate commerce or use any class II substance

unless such substance -

(1) has been used, recovered, and recycled;

(2) is used and entirely consumed (except for trace quantities)

in the production of other chemicals; or

(3) is used as a refrigerant in appliances manufactured prior

to January 1, 2020.

As used in this subsection, the term "refrigerant" means any class

II substance used for heat transfer in a refrigerating system.

(b) Production phase-out

(1) Effective January 1, 2015, it shall be unlawful for any

person to produce any class II substance in an annual quantity

greater than the quantity of such substance produced by such person

during the baseline year.

(2) Effective January 1, 2030, it shall be unlawful for any

person to produce any class II substance.

substances

By December 31, 1999, the Administrator shall promulgate

regulations phasing out the production, and restricting the use, of

class II substances in accordance with this section, subject to any

acceleration of the phase-out of production under section 7671e of

this title. The Administrator shall also promulgate regulations to

insure that the consumption of class II substances in the United

States is phased out and terminated in accordance with the same

schedule (subject to the same exceptions and other provisions) as

is applicable to the phase-out and termination of production of

class II substances under this subchapter.

(d) Exceptions

(1) Medical devices

(A) In general

Notwithstanding the termination of production required under

subsection (b)(2) of this section and the restriction on use

referred to in subsection (a) of this section, the

Administrator, after notice and opportunity for public comment,

shall, to the extent such action is consistent with the

Montreal Protocol, authorize the production and use of limited

quantities of class II substances solely for purposes of use in

medical devices if such authorization is determined by the

Commissioner, in consultation with the Administrator, to be

necessary for use in medical devices.

(B) Cap on exception

Under no circumstances may the authority set forth in

subparagraph (A) be applied to authorize any person to produce

a class II substance in annual quantities greater than 10

percent of that produced by such person during the baseline

year.

(2) Developing countries

(A) In general

Notwithstanding the provisions of subsection (a) or (b) of

this section, the Administrator, after notice and opportunity

for public comment, may authorize the production of limited

quantities of a class II substance in excess of the quantities

otherwise permitted under such provisions solely for export to

and use in developing countries that are Parties to the

Montreal Protocol, as determined by the Administrator. Any

production authorized under this subsection shall be solely for

purposes of satisfying the basic domestic needs of such

countries.

(B) Cap on exception

(i) Under no circumstances may the authority set forth in

subparagraph (A) be applied to authorize any person to produce

a class II substance in any year following the effective date

of subsection (b)(1) of this section and before the year 2030

in annual quantities greater than 110 percent of the quantity

of such substance produced by such person during the baseline

year.

(ii) Under no circumstances may the authority set forth in

subparagraph (A) be applied to authorize any person to produce

a class II substance in the year 2030, or any year thereafter,

in an annual quantity greater than 15 percent of the quantity

of such substance produced by such person during the baseline

year.

(iii) Each exception authorized under this paragraph shall

terminate no later than January 1, 2040.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 605, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2658.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7671a, 7671b, 7671e of

this title.

-End-

-CITE-

42 USC Sec. 7671e 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671e. Accelerated schedule

-STATUTE-

(a) In general

The Administrator shall promulgate regulations, after notice and

opportunity for public comment, which establish a schedule for

phasing out the production and consumption of class I and class II

substances (or use of class II substances) that is more stringent

than set forth in section 7671c or 7671d of this title, or both, if

(1) based on an assessment of credible current scientific

information (including any assessment under the Montreal

Protocol) regarding harmful effects on the stratospheric ozone

layer associated with a class I or class II substance, the

Administrator determines that such more stringent schedule may be

necessary to protect human health and the environment against

such effects,

(2) based on the availability of substitutes for listed

substances, the Administrator determines that such more stringent

schedule is practicable, taking into account technological

achievability, safety, and other relevant factors, or

(3) the Montreal Protocol is modified to include a schedule to

control or reduce production, consumption, or use of any

substance more rapidly than the applicable schedule under this

subchapter.

In making any determination under paragraphs (1) and (2), the

Administrator shall consider the status of the period remaining

under the applicable schedule under this subchapter.

(b) Petition

Any person may petition the Administrator to promulgate

regulations under this section. The Administrator shall grant or

deny the petition within 180 days after receipt of any such

petition. If the Administrator denies the petition, the

Administrator shall publish an explanation of why the petition was

denied. If the Administrator grants such petition, such final

regulations shall be promulgated within 1 year. Any petition under

this subsection shall include a showing by the petitioner that

there are data adequate to support the petition. If the

Administrator determines that information is not sufficient to make

a determination under this subsection, the Administrator shall use

any authority available to the Administrator, under any law

administered by the Administrator, to acquire such information.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 606, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2660.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7671d of this title.

-End-

-CITE-

42 USC Sec. 7671f 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671f. Exchange authority

-STATUTE-

(a) Transfers

The Administrator shall, within 10 months after November 15,

1990, promulgate rules under this subchapter providing for the

issuance of allowances for the production of class I and II

substances in accordance with the requirements of this subchapter

and governing the transfer of such allowances. Such rules shall

insure that the transactions under the authority of this section

will result in greater total reductions in the production in each

year of class I and class II substances than would occur in that

year in the absence of such transactions.

(b) Interpollutant transfers

(1) The rules under this section shall permit a production

allowance for a substance for any year to be transferred for a

production allowance for another substance for the same year on an

ozone depletion weighted basis.

(2) Allowances for substances in each group of class I substances

(as listed pursuant to section 7671a of this title) may only be

transferred for allowances for other substances in the same Group.

(3) The Administrator shall, as appropriate, establish groups of

class II substances for trading purposes and assign class II

substances to such groups. In the case of class II substances,

allowances may only be transferred for allowances for other class

II substances that are in the same Group.

The rules under this section shall permit 2 or more persons to

transfer production allowances (including interpollutant transfers

which meet the requirements of subsections (a) and (b) of this

section) if the transferor of such allowances will be subject,

under such rules, to an enforceable and quantifiable reduction in

annual production which -

(1) exceeds the reduction otherwise applicable to the

transferor under this subchapter,

(2) exceeds the production allowances transferred to the

transferee, and

(3) would not have occurred in the absence of such transaction.

(d) Consumption

The rules under this section shall also provide for the issuance

of consumption allowances in accordance with the requirements of

this subchapter and for the trading of such allowances in the same

manner as is applicable under this section to the trading of

production allowances under this section.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 607, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2660.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in section 7671a of this title.

-End-

-CITE-

42 USC Sec. 7671g 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671g. National recycling and emission reduction program

-STATUTE-

(a) In general

(1) The Administrator shall, by not later than January 1, 1992,

promulgate regulations establishing standards and requirements

regarding the use and disposal of class I substances during the

service, repair, or disposal of appliances and industrial process

refrigeration. Such standards and requirements shall become

effective not later than July 1, 1992.

(2) The Administrator shall, within 4 years after November 15,

1990, promulgate regulations establishing standards and

requirements regarding use and disposal of class I and II

substances not covered by paragraph (1), including the use and

disposal of class II substances during service, repair, or disposal

of appliances and industrial process refrigeration. Such standards

and requirements shall become effective not later than 12 months

after promulgation of the regulations.

(3) The regulations under this subsection shall include

requirements that -

(A) reduce the use and emission of such substances to the

lowest achievable level, and

(B) maximize the recapture and recycling of such substances.

Such regulations may include requirements to use alternative

substances (including substances which are not class I or class II

substances) or to minimize use of class I or class II substances,

or to promote the use of safe alternatives pursuant to section

7671k of this title or any combination of the foregoing.

(b) Safe disposal

The regulations under subsection (a) of this section shall

establish standards and requirements for the safe disposal of class

I and II substances. Such regulations shall include each of the

following -

(1) Requirements that class I or class II substances contained

in bulk in appliances, machines or other goods shall be removed

from each such appliance, machine or other good prior to the

disposal of such items or their delivery for recycling.

(2) Requirements that any appliance, machine or other good

containing a class I or class II substance in bulk shall not be

manufactured, sold, or distributed in interstate commerce or

offered for sale or distribution in interstate commerce unless it

is equipped with a servicing aperture or an equally effective

design feature which will facilitate the recapture of such

substance during service and repair or disposal of such item.

(3) Requirements that any product in which a class I or class

II substance is incorporated so as to constitute an inherent

element of such product shall be disposed of in a manner that

reduces, to the maximum extent practicable, the release of such

substance into the environment. If the Administrator determines

that the application of this paragraph to any product would

result in producing only insignificant environmental benefits,

the Administrator shall include in such regulations an exception

for such product.

(1) Effective July 1, 1992, it shall be unlawful for any person,

in the course of maintaining, servicing, repairing, or disposing of

an appliance or industrial process refrigeration, to knowingly vent

or otherwise knowingly release or dispose of any class I or class

II substance used as a refrigerant in such appliance (or industrial

process refrigeration) in a manner which permits such substance to

enter the environment. De minimis releases associated with good

faith attempts to recapture and recycle or safely dispose of any

such substance shall not be subject to the prohibition set forth in

the preceding sentence.

(2) Effective 5 years after November 15, 1990, paragraph (1)

shall also apply to the venting, release, or disposal of any

substitute substance for a class I or class II substance by any

person maintaining, servicing, repairing, or disposing of an

appliance or industrial process refrigeration which contains and

uses as a refrigerant any such substance, unless the Administrator

determines that venting, releasing, or disposing of such substance

does not pose a threat to the environment. For purposes of this

paragraph, the term "appliance" includes any device which contains

and uses as a refrigerant a substitute substance and which is used

for household or commercial purposes, including any air

conditioner, refrigerator, chiller, or freezer.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 608, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2661.)

-End-

-CITE-

42 USC Sec. 7671h 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671h. Servicing of motor vehicle air conditioners

-STATUTE-

(a) Regulations

Within 1 year after November 15, 1990, the Administrator shall

promulgate regulations in accordance with this section establishing

standards and requirements regarding the servicing of motor vehicle

air conditioners.

(b) Definitions

As used in this section -

(1) The term "refrigerant" means any class I or class II

substance used in a motor vehicle air conditioner. Effective 5

years after November 15, 1990, the term "refrigerant" shall also

include any substitute substance.

(2)(A) The term "approved refrigerant recycling equipment"

means equipment certified by the Administrator (or an independent

standards testing organization approved by the Administrator) to

meet the standards established by the Administrator and

applicable to equipment for the extraction and reclamation of

refrigerant from motor vehicle air conditioners. Such standards

shall, at a minimum, be at least as stringent as the standards of

the Society of Automotive Engineers in effect as of November 15,

1990, and applicable to such equipment (SAE standard J-1990).

(B) Equipment purchased before the proposal of regulations

under this section shall be considered certified if it is

substantially identical to equipment certified as provided in

subparagraph (A).

(3) The term "properly using" means, with respect to approved

refrigerant recycling equipment, using such equipment in

conformity with standards established by the Administrator and

applicable to the use of such equipment. Such standards shall, at

a minimum, be at least as stringent as the standards of the

Society of Automotive Engineers in effect as of November 15,

1990, and applicable to the use of such equipment (SAE standard

J-1989).

(4) The term "properly trained and certified" means training

and certification in the proper use of approved refrigerant

recycling equipment for motor vehicle air conditioners in

conformity with standards established by the Administrator and

applicable to the performance of service on motor vehicle air

conditioners. Such standards shall, at a minimum, be at least as

stringent as specified, as of November 15, 1990, in SAE standard

J-1989 under the certification program of the National Institute

for Automotive Service Excellence (ASE) or under a similar

program such as the training and certification program of the

Mobile Air Conditioning Society (MACS).

Effective January 1, 1992, no person repairing or servicing motor

vehicles for consideration may perform any service on a motor

vehicle air conditioner involving the refrigerant for such air

conditioner without properly using approved refrigerant recycling

equipment and no such person may perform such service unless such

person has been properly trained and certified. The requirements of

the previous sentence shall not apply until January 1, 1993 in the

case of a person repairing or servicing motor vehicles for

consideration at an entity which performed service on fewer than

100 motor vehicle air conditioners during calendar year 1990 and if

such person so certifies, pursuant to subsection (d)(2) of this

section, to the Administrator by Janu- ary 1, 1992.

(d) Certification

(1) Effective 2 years after November 15, 1990, each person

performing service on motor vehicle air conditioners for

consideration shall certify to the Administrator either -

(A) that such person has acquired, and is properly using,

approved refrigerant recycling equipment in service on motor

vehicle air conditioners involving refrigerant and that each

individual authorized by such person to perform such service is

properly trained and certified; or

(B) that such person is performing such service at an entity

which serviced fewer than 100 motor vehicle air conditioners in

1991.

(2) Effective January 1, 1993, each person who certified under

paragraph (1)(B) shall submit a certification under paragraph

(1)(A).

(3) Each certification under this subsection shall contain the

name and address of the person certifying under this subsection and

the serial number of each unit of approved recycling equipment

acquired by such person and shall be signed and attested by the

owner or another responsible officer. Certifications under

paragraph (1)(A) may be made by submitting the required information

to the Administrator on a standard form provided by the

manufacturer of certified refrigerant recycling equipment.

(e) Small containers of class I or class II substances

Effective 2 years after November 15, 1990, it shall be unlawful

for any person to sell or distribute, or offer for sale or

distribution, in interstate commerce to any person (other than a

person performing service for consideration on motor vehicle

air-conditioning systems in compliance with this section) any class

I or class II substance that is suitable for use as a refrigerant

in a motor vehicle air-conditioning system and that is in a

container which contains less than 20 pounds of such refrigerant.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 609, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2662.)

-End-

-CITE-

42 USC Sec. 7671i 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671i. Nonessential products containing chlorofluorocarbons

-STATUTE-

(a) Regulations

The Administrator shall promulgate regulations to carry out the

requirements of this section within 1 year after November 15, 1990.

(b) Nonessential products

The regulations under this section shall identify nonessential

products that release class I substances into the environment

(including any release occurring during manufacture, use, storage,

or disposal) and prohibit any person from selling or distributing

any such product, or offering any such product for sale or

distribution, in interstate commerce. At a minimum, such

prohibition shall apply to -

(1) chlorofluorocarbon-propelled plastic party streamers and

noise horns,

(2) chlorofluorocarbon-containing cleaning fluids for

noncommercial electronic and photographic equipment, and

(3) other consumer products that are determined by the

Administrator -

(A) to release class I substances into the environment

(including any release occurring during manufacture, use,

storage, or disposal), and

(B) to be nonessential.

In determining whether a product is nonessential, the Administrator

shall consider the purpose or intended use of the product, the

technological availability of substitutes for such product and for

such class I substance, safety, health, and other relevant factors.

Effective 24 months after November 15, 1990, it shall be unlawful

for any person to sell or distribute, or offer for sale or

distribution, in interstate commerce any nonessential product to

which regulations under subsection (a) of this section implementing

subsection (b) of this section are applicable.

(d) Other products

(1) Effective January 1, 1994, it shall be unlawful for any

person to sell or distribute, or offer for sale or distribution, in

interstate commerce -

(A) any aerosol product or other pressurized dispenser which

contains a class II substance; or

(B) any plastic foam product which contains, or is manufactured

with, a class II substance.

(2) The Administrator is authorized to grant exceptions from the

prohibition under subparagraph (A) of paragraph (1) where -

(A) the use of the aerosol product or pressurized dispenser is

determined by the Administrator to be essential as a result of

flammability or worker safety concerns, and

(B) the only available alternative to use of a class II

substance is use of a class I substance which legally could be

substituted for such class II substance.

(3) Subparagraph (B) of paragraph (1) shall not apply to -

(A) a foam insulation product, or

(B) an integral skin, rigid, or semi-rigid foam utilized to

provide for motor vehicle safety in accordance with Federal Motor

Vehicle Safety Standards where no adequate substitute substance

(other than a class I or class II substance) is practicable for

effectively meeting such Standards.

(e) Medical devices

Nothing in this section shall apply to any medical device as

defined in section 7671(8) of this title.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 610, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2664.)

-End-

-CITE-

42 USC Sec. 7671j 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671j. Labeling

-STATUTE-

(a) Regulations

The Administrator shall promulgate regulations to implement the

labeling requirements of this section within 18 months after

November 15, 1990, after notice and opportunity for public comment.

(b) Containers containing class I or class II substances and

products containing class I substances

Effective 30 months after November 15, 1990, no container in

which a class I or class II substance is stored or transported, and

no product containing a class I substance, shall be introduced into

interstate commerce unless it bears a clearly legible and

conspicuous label stating:

"Warning: Contains [insert name of substance], a substance

which harms public health and environment by destroying ozone in

the upper atmosphere".

(1) After 30 months after November 15, 1990, and before January

1, 2015, no product containing a class II substance shall be

introduced into interstate commerce unless it bears the label

referred to in subsection (b) of this section if the Administrator

determines, after notice and opportunity for public comment, that

there are substitute products or manufacturing processes (A) that

do not rely on the use of such class II substance, (B) that reduce

the overall risk to human health and the environment, and (C) that

are currently or potentially available.

(2) Effective January 1, 2015, the requirements of subsection (b)

of this section shall apply to all products containing a class II

substance.

(d) Products manufactured with class I and class II substances

(1) In the case of a class II substance, after 30 months after

November 15, 1990, and before January 1, 2015, if the

Administrator, after notice and opportunity for public comment,

makes the determination referred to in subsection (c) of this

section with respect to a product manufactured with a process that

uses such class II substance, no such product shall be introduced

into interstate commerce unless it bears a clearly legible and

conspicuous label stating:

"Warning: Manufactured with [insert name of substance], a

substance which harms public health and environment by destroying

ozone in the upper atmosphere" (!1)

(2) In the case of a class I substance, effective 30 months after

November 15, 1990, and before January 1, 2015, the labeling

requirements of this subsection shall apply to all products

manufactured with a process that uses such class I substance unless

the Administrator determines that there are no substitute products

or manufacturing processes that (A) do not rely on the use of such

class I substance, (B) reduce the overall risk to human health and

the environment, and (C) are currently or potentially available.

(e) Petitions

(1) Any person may, at any time after 18 months after November

15, 1990, petition the Administrator to apply the requirements of

this section to a product containing a class II substance or a

product manufactured with a class I or II substance which is not

otherwise subject to such requirements. Within 180 days after

receiving such petition, the Administrator shall, pursuant to the

criteria set forth in subsection (c) of this section, either

propose to apply the requirements of this section to such product

or publish an explanation of the petition denial. If the

Administrator proposes to apply such requirements to such product,

the Administrator shall, by rule, render a final determination

pursuant to such criteria within 1 year after receiving such

petition.

(2) Any petition under this paragaph (!2) shall include a showing

by the petitioner that there are data on the product adequate to

support the petition.

(3) If the Administrator determines that information on the

product is not sufficient to make the required determination the

Administrator shall use any authority available to the

Administrator under any law administered by the Administrator to

acquire such information.

(4) In the case of a product determined by the Administrator,

upon petition or on the Administrator's own motion, to be subject

to the requirements of this section, the Administrator shall

establish an effective date for such requirements. The effective

date shall be 1 year after such determination or 30 months after

November 15, 1990, whichever is later.

(5) Effective January 1, 2015, the labeling requirements of this

subsection (!3) shall apply to all products manufactured with a

process that uses a class I or class II substance.

(f) Relationship to other law

(1) The labeling requirements of this section shall not

constitute, in whole or part, a defense to liability or a cause for

reduction in damages in any suit, whether civil or criminal,

brought under any law, whether Federal or State, other than a suit

for failure to comply with the labeling requirements of this

section.

(2) No other approval of such label by the Administrator under

any other law administered by the Administrator shall be required

with respect to the labeling requirements of this section.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 611, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2665.)

-FOOTNOTE-

(!1) So in original. Probably should be followed by a period.

(!2) So in original. Probably should be "paragraph".

(!3) So in original. Probably should be "section".

-End-

-CITE-

42 USC Sec. 7671k 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671k. Safe alternatives policy

-STATUTE-

(a) Policy

To the maximum extent practicable, class I and class II

substances shall be replaced by chemicals, product substitutes, or

alternative manufacturing processes that reduce overall risks to

human health and the environment.

(b) Reviews and reports

The Administrator shall -

(1) in consultation and coordination with interested members of

the public and the heads of relevant Federal agencies and

departments, recommend Federal research programs and other

activities to assist in identifying alternatives to the use of

class I and class II substances as refrigerants, solvents, fire

retardants, foam blowing agents, and other commercial

applications and in achieving a transition to such alternatives,

and, where appropriate, seek to maximize the use of Federal

research facilities and resources to assist users of class I and

class II substances in identifying and developing alternatives to

the use of such substances as refrigerants, solvents, fire

retardants, foam blowing agents, and other commercial

applications;

(2) examine in consultation and coordination with the Secretary

of Defense and the heads of other relevant Federal agencies and

departments, including the General Services Administration,

Federal procurement practices with respect to class I and class

II substances and recommend measures to promote the transition by

the Federal Government, as expeditiously as possible, to the use

of safe substitutes;

(3) specify initiatives, including appropriate

intergovernmental, international, and commercial information and

technology transfers, to promote the development and use of safe

substitutes for class I and class II substances, including

alternative chemicals, product substitutes, and alternative

manufacturing processes; and

(4) maintain a public clearinghouse of alternative chemicals,

product substitutes, and alternative manufacturing processes that

are available for products and manufacturing processes which use

class I and class II substances.

Within 2 years after November 15, 1990, the Administrator shall

promulgate rules under this section providing that it shall be

unlawful to replace any class I or class II substance with any

substitute substance which the Administrator determines may present

adverse effects to human health or the environment, where the

Administrator has identified an alternative to such replacement

that -

(1) reduces the overall risk to human health and the

environment; and

(2) is currently or potentially available.

The Administrator shall publish a list of (A) the substitutes

prohibited under this subsection for specific uses and (B) the safe

alternatives identified under this subsection for specific uses.

(d) Right to petition

Any person may petition the Administrator to add a substance to

the lists under subsection (c) of this section or to remove a

substance from either of such lists. The Administrator shall grant

or deny the petition within 90 days after receipt of any such

petition. If the Administrator denies the petition, the

Administrator shall publish an explanation of why the petition was

denied. If the Administrator grants such petition the Administrator

shall publish such revised list within 6 months thereafter. Any

petition under this subsection shall include a showing by the

petitioner that there are data on the substance adequate to support

the petition. If the Administrator determines that information on

the substance is not sufficient to make a determination under this

subsection, the Administrator shall use any authority available to

the Administrator, under any law administered by the Administrator,

to acquire such information.

(e) Studies and notification

The Administrator shall require any person who produces a

chemical substitute for a class I substance to provide the

Administrator with such person's unpublished health and safety

studies on such substitute and require producers to notify the

Administrator not less than 90 days before new or existing

chemicals are introduced into interstate commerce for significant

new uses as substitutes for a class I substance. This subsection

shall be subject to section 7414(c) of this title.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 612, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2667.)

-SECREF-

SECTION REFERRED TO IN OTHER SECTIONS

This section is referred to in sections 7671g, 7671l of this

title.

-End-

-CITE-

42 USC Sec. 7671l 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671l. Federal procurement

-STATUTE-

Not later than 18 months after November 15, 1990, the

Administrator, in consultation with the Administrator of the

General Services Administration and the Secretary of Defense, shall

promulgate regulations requiring each department, agency, and

instrumentality of the United States to conform its procurement

regulations to the policies and requirements of this subchapter and

to maximize the substitution of safe alternatives identified under

section 7671k of this title for class I and class II substances.

Not later than 30 months after November 15, 1990, each department,

agency, and instrumentality of the United States shall so conform

its procurement regulations and certify to the President that its

regulations have been modified in accordance with this section.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 613, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2668.)

-EXEC-

EXECUTIVE ORDER NO. 12843

Ex. Ord. No. 12843, Apr. 21, 1993, 58 F.R. 21881, which provided

for Federal agencies to implement policies and programs to minimize

procurement of ozone-depleting substances, was revoked by Ex. Ord.

No. 13148, Sec. 901, Apr. 21, 2000, 65 F.R. 24604, set out as a

note under section 4321 of this title.

-End-

-CITE-

42 USC Sec. 7671m 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671m. Relationship to other laws

-STATUTE-

(a) State laws

Notwithstanding section 7416 of this title, during the 2-year

period beginning on November 15, 1990, no State or local government

may enforce any requirement concerning the design of any new or

recalled appliance for the purpose of protecting the stratospheric

ozone layer.

(b) Montreal Protocol

This subchapter as added by the Clean Air Act Amendments of 1990

shall be construed, interpreted, and applied as a supplement to the

terms and conditions of the Montreal Protocol, as provided in

Article 2, paragraph 11 thereof, and shall not be construed,

interpreted, or applied to abrogate the responsibilities or

obligations of the United States to implement fully the provisions

of the Montreal Protocol. In the case of conflict between any

provision of this subchapter and any provision of the Montreal

Protocol, the more stringent provision shall govern. Nothing in

this subchapter shall be construed, interpreted, or applied to

affect the authority or responsibility of the Administrator to

implement Article 4 of the Montreal Protocol with other appropriate

agencies.

Upon November 15, 1990, the President shall -

(1) prohibit the export of technologies used to produce a class

I substance;

(2) prohibit direct or indirect investments by any person in

facilities designed to produce a class I or class II substance in

nations that are not parties to the Montreal Protocol; and

(3) direct that no agency of the government provide bilateral

or multilateral subsidies, aids, credits, guarantees, or

insurance programs, for the purpose of producing any class I

substance.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 614, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2668.)

-REFTEXT-

REFERENCES IN TEXT

The Clean Air Act Amendments of 1990, referred to in subsec. (b),

probably means Pub. L. 101-549, Nov. 15, 1990, 104 Stat. 2399. For

complete classification of this Act to the Code, see Short Title of

1990 Amendment note set out under section 7401 of this title and

Tables.

-End-

-CITE-

42 USC Sec. 7671n 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671n. Authority of Administrator

-STATUTE-

If, in the Administrator's judgment, any substance, practice,

process, or activity may reasonably be anticipated to affect the

stratosphere, especially ozone in the stratosphere, and such effect

may reasonably be anticipated to endanger public health or welfare,

the Administrator shall promptly promulgate regulations respecting

the control of such substance, practice, process, or activity, and

shall submit notice of the proposal and promulgation of such

regulation to the Congress.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 615, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2669.)

-End-

-CITE-

42 USC Sec. 7671o 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671o. Transfers among Parties to Montreal Protocol

-STATUTE-

(a) In general

Consistent with the Montreal Protocol, the United States may

engage in transfers with other Parties to the Protocol under the

following conditions:

(1) The United States may transfer production allowances to

another Party if, at the time of such transfer, the Administrator

establishes revised production limits for the United States such

that the aggregate national United States production permitted

under the revised production limits equals the lesser of (A) the

maximum production level permitted for the substance or

substances concerned in the transfer year under the Protocol

minus the production allowances transferred, (B) the maximum

production level permitted for the substance or substances

concerned in the transfer year under applicable domestic law

minus the production allowances transferred, or (C) the average

of the actual national production level of the substance or

substances concerned for the 3 years prior to the transfer minus

the production allowances transferred.

(2) The United States may acquire production allowances from

another Party if, at the time of such transfer, the Administrator

finds that the other Party has revised its domestic production

limits in the same manner as provided with respect to transfers

by the United States in this subsection.

(b) Effect of transfers on production limits

The Administrator is authorized to reduce the production limits

established under this chapter as required as a prerequisite to

transfers under paragraph (1) of subsection (a) of this section or

to increase production limits established under this chapter to

reflect production allowances acquired under a transfer under

paragraph (2) of subsection (a) of this section.

The Administrator shall promulgate, within 2 years after November

15, 1990, regulations to implement this section.

(d) "Applicable domestic law" defined

In the case of the United States, the term "applicable domestic

law" means this chapter.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 616, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2669.)

-End-

-CITE-

42 USC Sec. 7671p 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671p. International cooperation

-STATUTE-

(a) In general

The President shall undertake to enter into international

agreements to foster cooperative research which complements studies

and research authorized by this subchapter, and to develop

standards and regulations which protect the stratosphere consistent

with regulations applicable within the United States. For these

purposes the President through the Secretary of State and the

Assistant Secretary of State for Oceans and International

Environmental and Scientific Affairs, shall negotiate multilateral

treaties, conventions, resolutions, or other agreements, and

formulate, present, or support proposals at the United Nations and

other appropriate international forums and shall report to the

Congress periodically on efforts to arrive at such agreements.

(b) Assistance to developing countries

The Administrator, in consultation with the Secretary of State,

shall support global participation in the Montreal Protocol by

providing technical and financial assistance to developing

countries that are Parties to the Montreal Protocol and operating

under article 5 of the Protocol. There are authorized to be

appropriated not more than $30,000,000 to carry out this section in

fiscal years 1991, 1992 and 1993 and such sums as may be necessary

in fiscal years 1994 and 1995. If China and India become Parties to

the Montreal Protocol, there are authorized to be appropriated not

more than an additional $30,000,000 to carry out this section in

fiscal years 1991, 1992, and 1993.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 617, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2669.)

-MISC1-

AUTHORITY OF SECRETARY OF STATE

Except as otherwise provided, Secretary of State to have and

exercise any authority vested by law in any official or office of

Department of State and references to such officials or offices

deemed to refer to Secretary of State or Department of State, as

appropriate, see section 2651a of Title 22, Foreign Relations and

Intercourse, and section 161(d) of Pub. L. 103-236, set out as a

note under section 2651a of Title 22.

-End-

-CITE-

42 USC Sec. 7671q 01/06/03

-EXPCITE-

TITLE 42 - THE PUBLIC HEALTH AND WELFARE

CHAPTER 85 - AIR POLLUTION PREVENTION AND CONTROL

SUBCHAPTER VI - STRATOSPHERIC OZONE PROTECTION

-HEAD-

Sec. 7671q. Miscellaneous provisions

-STATUTE-

For purposes of section 7416 of this title, requirements

concerning the areas addressed by this subchapter for the

protection of the stratosphere against ozone layer depletion shall

be treated as requirements for the control and abatement of air

pollution. For purposes of section 7418 of this title, the

requirements of this subchapter and corresponding State,

interstate, and local requirements, administrative authority, and

process, and sanctions respecting the protection of the

stratospheric ozone layer shall be treated as requirements for the

control and abatement of air pollution within the meaning of

section 7418 of this title.

-SOURCE-

(July 14, 1955, ch. 360, title VI, Sec. 618, as added Pub. L.

101-549, title VI, Sec. 602(a), Nov. 15, 1990, 104 Stat. 2670.)

-End-

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Enviado por:	El remitente no desea revelar su nombre
Idioma:	inglés
País:	Estados Unidos

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Codificación normativa de EEUU (Estados Unidos)Legislación federal estadounidense # The Public Health and Welfare

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