42 U.S.C. § 7651b : US Code - Section 7651B: Sulfur dioxide allowance program for existing and new units

Search 42 U.S.C. § 7651b : US Code - Section 7651B: Sulfur dioxide allowance program for existing and new units

(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.
(c) Interpollutant trading
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.(!2)