Requires the Administrator of the Environmental Protection Agency to: (1) promulgate performance standards (limiting emissions of sulfur dioxide, nitrogen oxides, particulate matter, and mercury) for new boilers, integrated gasification combined cycle plants, and combustion turbines; and (2) conduct a comprehensive research and environmental assessment program to enhance understanding of health and environmental effects of particulate matter and mercury and to demonstrate the efficacy of emission reductions under this Act.
Excludes the following units from consideration as major emitting facilities or major stationary sources (or parts thereof) for purposes of compliance with provisions concerning prevention of significant deterioration of air quality and plan requirements for nonattainment areas: those that achieve a specified limit on particulate matter emissions or certain national emissions standards for hazardous pollutants or those with properly operated and maintained equipment to limit particulate matter emissions and that use good combustion practices to minimize carbon monoxide emissions.
Establishes procedures by which owners or operators may petition the Secretary of Energy for a determination that electricity reliability will likely be threatened by the need to install pollution control technology. Allows a compliance delay in the case of a successful petition.
Requires States to ensure in implementation plans that: (1) in an attainment or unclassifiable area, any emissions increase from the construction or modification of an affected unit will not result in exceeding a national ambient air quality standard; and (2) in a nonattainment area, the emissions increase will not interfere with a program to assure the achievement of such a standard. Provides for designation of transitional areas under implementation plans and states requirements for emissions inventories, the attainment of standards by the end of 2015, and penalties for not meeting the eight-hour ozone or fine particles standard.
[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 131 Introduced in Senate (IS)]
109th CONGRESS
1st Session
S. 131
To amend the Clean Air Act to reduce air pollution through expansion of
cap and trade programs, to provide an alternative regulatory
classification for units subject to the cap and trade program, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 24, 2005
Mr. Inhofe (for himself and Mr. Voinovich) introduced the following
bill; which was read twice and referred to the Committee on
Environment and Public WorksYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYYY
_______________________________________________________________________
A BILL
To amend the Clean Air Act to reduce air pollution through expansion of
cap and trade programs, to provide an alternative regulatory
classification for units subject to the cap and trade program, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Clear Skies Act of
2005''.
(b) Table of Contents.--The table of contents of this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 2. Emission reduction programs.
``TITLE IV--EMISSION REDUCTION PROGRAMS
``Part A--General Provisions
``Sec. 401. (Reserved)
``Sec. 402. Definitions.
``Sec. 403. Allowance system.
``Sec. 404. Permits and compliance plans.
``Sec. 405. Monitoring, reporting, and recordkeeping
requirements.
``Sec. 406. Excess emissions penalty; general compliance with
other provisions; enforcement.
``Sec. 407. Election for additional units.
``Sec. 408. Clean coal technology regulatory incentives.
``Sec. 409. Electricity reliability.
``Part ``subpart 1--acid rain programuctions
``Sec. 411. Definitions.
``Sec. 412. Allowance allocation.
``Sec. 413. Phase I sulfur dioxide requirements.
``Sec. 414. Phase II sulfur dioxide requirements.
``Sec. 415. Allowances for States with emissions rates at or
below 0.80 lbs/mmBtu.
``Sec. 416. Election for additional sources.
``Sec. 417. Auctions, reserve.
``Sec. 418. Industrial sulfur dioxide emissions.
``subpart 2--clear skies sulfur dioxide allowance program
``Sec. 421. Definitions.
``Sec. 422. Applicability.
``Sec. 423. Limitations on total emissions.
``Sec. 424. Egu allocations.
``Sec. 425. Disposition of sulfur dioxide allowances allocated
under subpart 1.
``Sec. 426. Incentives for sulfur dioxide emission control
``subpart 3--western regional air partnership
``Sec. 431. Definitions.
``Sec. 432. Applicability.
``Sec. 433. Limitations on total emissions.
``Sec. 434. EGU allocations.
``Part C--Nitr``subpart 1--acid rain programon Reductions
``Sec. 441. Nitrogen oxides emission reduction program.
``subpart 2--clear skies nitrogen oxides allowance program
``Sec. 451. Definitions.
``Sec. 452. Applicability.
``Sec. 453. Limitations on total emissions.
``Sec. 454. EGU allocations.
``subpart 3--ozone season no<INF>X</INF> budget programits.
``Sec. 461. Definitions.
``Sec. 462. General provisions.
``Sec. 463. Applicable implementation plan.
``Sec. 464. Termination of Federal administration of NOx
trading program for EGUs.
``Sec. 465. Carryforward of pre-2008 nitrogen oxides
allowances.
``Sec. 466. Non-ozone season voluntary action credits.
``Part D--Mercury Emissions Reductions
``Sec. 471. Definitions.
``Sec. 472. Applicability.
``Sec. 473. Limitations on total emissions.
``Sec. 474. EGU allocations.
``Sec. 475. Mercury early action reduction credits.
``Part E--National Emission Standards; Research, Environmental
Accountability; Major Source Preconstruction Review and Best Available
Retrofit Control Technology Requirements
``Sec. 481. National emission standards for affected units.
``Sec. 482. Research, environmental monitoring, and assessment.
``Sec. 483. Major source preconstruction review requirements
and best available retrofit control
technology requirements; applicability to
affected units.
Sec. 3. Other amendments.
SEC. 2. EMISSION REDUCTION PROGRAMS.
Title IV of the Clean Air Act (relating to acid deposition control)
(42 U.S.C. 7651, et seq.) is amended to read as follows:
``TITLE IV--EMISSION REDUCTION PROGRAMS
``PART A--GENERAL PROVISIONS
``SEC. 401. (RESERVED)
``SEC. 402. DEFINITIONS.
``In this title:
``(1) Affected egu.--The term `affected EGU' shall have the
meaning set forth in section 421, 430, 451, or 471, as
appropriate.
``(2) Affected facility.--The term `affected facility' or
`affected source' means a facility or source that includes one
or more affected units.
``(3) Affected unit.--The term `affected unit' means--
``(A) under this part, a unit that is subject to
emission reduction requirements or limitations under
part B, C, or D or, if applicable, under a specified
part or subpart; or
``(B) under subpart 1 of part B or subpart 1 of
part C, a unit that is subject to emission reduction
requirements or limitations under that subpart.
``(4) Allowance.--The term `allowance' means--
``(A) an authorization, by the Administrator under
this title, to emit one ton of sulfur dioxide, one ton
of nitrogen oxides, or one ounce of mercury; or
``(B) under subpart 1 of part B, an authorization
by the Administrator under this title, to emit one ton
of sulfur dioxide.
``(5) Baseline heat input.--
``(A) In general.--The term `baseline heat input'
means, except under subpart 1 of part B and section
407, the average annual heat input used by a unit
during the three years in which the unit had the
highest heat input for the period 1998 through 2002.
``(B) Commencement of operation after january 1, 2001.--
Notwithstanding subparagraph (A), if a unit commenced or
commences operation after January 1, 2001, then `baseline heat
input' means the manufacturer's design heat input capacity for
the unit multiplied by 80 percent for coal-fired units, 50
percent for boilers that are not coal-fired, 80 percent for
combustion turbine cogeneration units elected under section
407, 50 percent for combustion turbines other than simple cycle
turbines, and 5 percent for simple cycle combustion turbines.
``(C) Heat input determination.--A unit's heat input for a
year shall be the heat input--
``(i) required to be reported under section 405 for
the unit, if the unit was required to report heat input
during the year under that section;
``(ii) reported to the Energy Information
Administration for the unit, if the unit was not
required to report heat input under section 405;
``(iii) based on data for the unit reported to the
State where the unit is located as required by State
law, if the unit was not required to report heat input
during the year under section 405 and did not report to
the Energy Information Administration; or
``(iv) based on fuel use and fuel heat content data
for the unit from fuel purchase or use records, if the
unit was not required to report heat input during the
year under section 405 and did not report to the Energy
Information Administration and the State.
``(D) Regulations.--Not later than three months after the
enactment of the Clear Skies Act of 2005, the Administrator
shall promulgate regulations, without notice and opportunity
for comment, specifying the format in which the information
under subparagraphs (B)(ii) and (C)(ii), (iii), or (iv) shall
be submitted. Not later than nine months after the enactment of
the Clear Skies Act of 2005, the owner or operator of any unit
under subparagraph (B)(ii) or (C)(ii), (iii), or (iv) to which
allowances may be allocated under section 424, 434, 454, or 474
shall submit to the Administrator such information. The
Administrator is not required to allocate allowances under such
sections to a unit for which the owner or operator fails to
submit information in accordance with the regulations
promulgated under this subparagraph.
``(6) Coal.--The term `coal' means any solid fuel
classified as anthracite, bituminous, subbituminous, or
lignite.
``(7) Coal-derived fuel.--The term `coal-derived fuel'
means any fuel (whether in a solid, liquid, or gaseous state)
produced by the mechanical, thermal, or chemical processing of
coal.
``(8) Coal-fired.--The term `coal-fired' with regard to a
unit means, except under subpart 1 of part B, subpart 1 of part
C, and sections 424 and 434, combusting coal or any coal-
derived fuel alone or in combination with any amount of any
other fuel in any year.
``(9) Cogeneration unit.--The term `cogeneration unit'
means, except under subpart 1 of part B and subpart 1 of part
C, a unit that produces through the sequential use of energy--
``(A) electricity; and
``(B) useful thermal energy (such as heat or steam)
for industrial, commercial, heating, or cooling
purposes.
``(10) Combustion turbine.--
``(A) In general.--The term `combustion turbine'
means any combustion turbine that is not self-
propelled.
``(B) Inclusion.--The term `combustion turbine'
includes a simple cycle combustion turbine, a combined
cycle combustion turbine and any duct burner or heat
recovery device used to extract heat from the
combustion turbine exhaust, and a regenerative
combustion turbine.
``(C) Exclusions.--The term `combustion turbine'
does not include a combined turbine in an integrated
gasification combined cycle plant.
``(11) Commence commercial operation.--The term `commence
commercial operation' with regard to a unit means the start up
of the unit's combustion chamber and the commencement of the
generation of electricity for sale.
``(12) Compliance plan.--The term `compliance plan' means
either--
``(A) a statement that the facility will comply
with all applicable requirements under this title; or
``(B) under subpart 1 of part B or subpart 1 of
part C, where applicable, a schedule and description of
the method or methods for compliance and certification
by the owner or operator that the facility is in
compliance with the requirements of that subpart.
``(13) Continuous emission monitoring system.--The term
`continuous emission monitoring system' (CEMS) means the
equipment as required by section 405, 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 405.
``(14) Designated representative.--The term `designated
representative' means a responsible person or official
authorized by the owner or operator of a unit and the facility
that includes the unit to represent the owner or operator in
matters pertaining to the holding, transfer, or disposition of
allowances, and the submission of and compliance with permits,
permit applications, and compliance plans.
``(15) Duct burner.--The term `duct burner' means a
combustion device that uses the exhaust from a combustion
turbine to burn fuel for heat recovery.
``(16) Facility.--The term `facility' means all buildings,
structures, or installations located on 1 or more contiguous or
adjacent properties under common control of the same person or
persons.
``(17) Fossil fuel.--The term `fossil fuel' means natural
gas, petroleum, coal, or any form of solid, liquid, or gaseous
fuel derived from such material.
``(18) Fossil fuel-fired.--The term `fossil fuel-fired',
with regard to a unit, means the combustion of fuel that is
composed of at least 10 percent fossil fuel.
``(19) Fuel oil.--The term `fuel oil' means a petroleum-
based fuel, including diesel fuel or petroleum derivatives.
``(20) Gas-fired.--The term `gas-fired', with regard to a
unit, means, except under subpart 1 of part B and subpart 1 of
part C, combusting only natural gas or fuel oil, with natural
gas comprising at least 90 percent, and fuel oil comprising no
more than 10 percent, of the unit's total heat input in any
year.
``(21) Gasify.--The term `gasify' means to convert carbon-
containing material into a gas consisting primarily of carbon
monoxide and hydrogen.
``(22) Generator.--The term `generator' means a device that
produces electricity and, under subpart 1 of part B and subpart
1 of part C, that is reported as a generating unit pursuant to
Department of Energy Form 860.
``(23) Heat input.--
``(A) In general.--The term `heat input', with
regard to a specific period of time, means the product
(in mmBtu/time) obtained by multiplying--
``(i) the gross calorific value of the fuel
(in mmBtu/lb); and
``(ii) the fuel feed rate into a unit (in
lb of fuel/time).
``(B) Exclusions.--The term `heat input' does not
include the heat derived from preheated combustion air,
recirculated flue gases, or exhaust.
``(24) Integrated gasification combined cycle plant.--The
term `integrated gasification combined cycle plant' means any
combination of equipment used to gasify fossil fuels (with or
without other material) and then burn the gas in a combined
cycle combustion turbine.
``(25) Oil-fired.--The term `oil-fired', with regard to a
unit, means, except under sections 424 and 434, combusting fuel
oil for more than 10 percent the unit's total heat input, and
combusting no coal or coal-derived fuel, in any year.
``(26) Owner or operator.--The term `owner or operator'
with regard to a unit or facility means, except for subpart 1
of part B and subpart 1 of part C, any person who owns, leases,
operates, controls, or supervises the unit or the facility.
``(27) Permitting authority.--The term `permitting
authority' means the Administrator, or the State or local air
pollution control agency, with an approved permitting program
under title V of the Act.
``(28) Potential electrical output.--The term `potential
electrical output' with regard to a generator means the
nameplate capacity of the generator multiplied by 8,760 hours.
``(29) Simple cycle combustion turbine.--The term `simple
cycle combustion turbine' means a combustion turbine that does
not extract heat from the combustion turbine exhaust gases.
``(30) Stationary source.--The term `stationary source'
means any building, structure, facility, or installation
located on one or more contiguous or adjacent properties under
common control or ownership of the same person or persons which
emits or may emit any air pollutant subject to regulations
under the Clear Skies Act of 2005.
``(31) State.--The term `State' means--
``(A) 1 of the 48 contiguous States, Alaska,
Hawaii, the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, Guam, American Samoa,
or the Commonwealth of the Northern Mariana Islands; or
``(B) under subpart 1 of part B and subpart 1 of
part C, 1 of the 48 contiguous States or the District
of Columbia.
``(32) Unit.--The term `unit' means--
``(A) a fossil fuel-fired boiler, combustion
turbine, or integrated gasification combined cycle
plant;
``(B) under subpart 1 of part B and subpart 1 of
part C, a fossil fuel-fired combustion device; and
``(C) a stationary source that--
``(i) emits nitrogen oxides, sulfur
dioxide, mercury, or any combination of those
substances; and
``(ii) is elected under section 407.
``(33) Utility unit.--The term `utility unit' shall have
the meaning set forth in section 411.
``(34) Year.--The term `year' means a calendar year.
``SEC. 403. ALLOWANCE SYSTEM.
``(a) Allocations.--
``(1) In general.--For the emission limitation programs
under this title, the Administrator shall allocate annual
allowances for an affected unit, to be held or distributed by
the designated representative of the owner or operator in
accordance with this title as follows--
``(A) sulfur dioxide allowances in an amount equal
to the annual tonnage emission limitation calculated
under section 413, 414, 415, or 416, except as
otherwise specifically provided elsewhere in subpart 1
of part B, or in an amount calculated under section 424
or 434;
``(B) nitrogen oxides allowances in an amount
calculated under section 454; and
``(C) mercury allowances in an amount calculated
under section 474.
``(2) No judicial review.--Notwithstanding any other
provision of law to the contrary, the calculation of the
allocation for any unit or facility, and the determination of
any values used in such calculation, under sections 424, 434,
454, and 474 shall not be subject to judicial review.
``(3) Allocation without cost.--Allowances shall be
allocated by the Administrator without cost to the recipient,
in accordance with this title.
``(b) Allowance Transfer System.--Allowances allocated or sold by
the Administrator under this title may be transferred among designated
representatives of the owners or operators of affected facilities under
this title and any other person, as provided by the allowance system
regulations promulgated by the Administrator. With regard to sulfur
dioxide allowances, the Administrator shall implement this subsection
under 40 CFR part 73 (2002), amended as appropriate by the
Administrator. With regard to nitrogen oxides allowances and mercury
allowances, the Administrator shall implement this subsection by
promulgating regulations not later than twenty-four months after the
date of enactment of the Clear Skies Act of 2005. The regulations under
this subsection 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 title. 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 title, for the identification of
unused allowances, and for such unused allowances to be carried forward
and added to allowances allocated in subsequent years. Such regulations
shall provide, or shall be amended to provide, that transfers of
allowances shall not be effective until certification of the transfer,
signed by a responsible official of the transferor, is received and
recorded by the Administrator.
``(c) Allowance Tracking System.--The Administrator shall
promulgate regulations establishing 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. Such system shall provide, by twenty-four months
prior to the compliance year, for one or more facility-wide accounts
for holding sulfur dioxide allowances, nitrogen oxides allowances, and,
if applicable, mercury allowances for all affected units at an affected
facility. With regard to sulfur dioxide allowances, the Administrator
shall implement this subsection under 40 CFR part 73 (2002), amended as
appropriate by the Administrator. With regard to nitrogen oxides
allowances and mercury allowances, the Administrator shall implement
this subsection by promulgating regulations not later than twenty-four
months after the date of enactment of the Clear Skies Act of 2005. All
allowance allocations and transfers shall, upon recording by the
Administrator, be deemed a part of each unit's or facility's permit
requirements pursuant to section 404, without any further permit review
and revision.
``(d) Nature of Allowances.--A sulfur dioxide allowance, nitrogen
oxides allowance, or mercury allowance allocated or sold by the
Administrator under this title is a limited authorization to emit one
ton of sulfur dioxide, one ton of nitrogen oxides, or one ounce of
mercury, as the case may be, in accordance with the provisions of this
title. Such allowance does not constitute a property right. Nothing in
this title 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 Act to an affected unit or facility, 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 or as
affecting the authority of the Federal Energy Regulatory Commission
under that Act. Nothing in this title 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 or sold to a person by the Administrator, may be received,
held, and temporarily or permanently transferred in accordance with
this title and the regulations of the Administrator without regard to
whether or not a permit is in effect under title V of the Clean Air Act
or section 404 of the Clear Skies Act of 2005 with respect to the unit
for which such allowance was originally allocated and recorded.
``(e) Prohibitions.--
``(1) In general.--It shall be unlawful for any person to
hold, use, or transfer any allowance allocated or sold by the
Administrator under this title, except in accordance with
regulations promulgated by the Administrator.
``(2) Emissions.--It shall be unlawful for any affected
unit or for the affected units at a facility to emit sulfur
dioxide, nitrogen oxides, and mercury, as the case may be,
during a year in excess of the number of allowances held for
that unit or facility for that year by the designated
representative as provided in sections 412(c), 422, 432, 452,
and 472.
``(3) Purchase of allowances.--The owner or operator of a
facility may purchase allowances directly from the
Administrator to be used only to meet the requirements of
sections 422, 432, 452, and 472, as the case may be, for the
year in which the purchase is made or the prior year. Not later
than thirty-six months after the date of enactment of the Clear
Skies Act of 2005, the Administrator shall promulgate
regulations providing for direct sales of sulfur dioxide
allowances, nitrogen oxides allowances, and mercury allowances
to an owner or operator of a facility. The regulations shall
provide that--
``(A) such allowances may be used only to meet the
requirements of section 422, 432, 452, and 472, as the
case may be, for such facility and for the year in
which the purchase is made or the prior year;
``(B) each such sulfur dioxide allowance shall be
sold for $2,000, each such nitrogen oxides allowance
shall be sold for $4,000, and each such mercury
allowance shall be sold for $2,187.50, with such prices
adjusted for inflation based on the Consumer Price
Index on the date of enactment of the Clear Skies Act
of 2005 and annually thereafter;
``(C) the proceeds from any sales of allowances
under subparagraph (B) shall be, in accordance with
paragraph (j), deposited in the Compliance Assistance
Account;
``(D) except for allowances subject to (E), the
allowances directly purchased for use for the year
specified in subparagraph (A) shall be, on a pro rata
basis, taken from, and reduce, the amount of sulfur
dioxide allowances, nitrogen oxides allowances, or
mercury allowances, as the case may be, that would
otherwise be allocated under section 423, 453, or 473
starting for the second year after the specified year
and continuing for each subsequent year as necessary;
and
``(E) if the designated representative does not use
any such allowance in accordance with paragraph (A) the
designated representative shall hold the allowance for
deduction by the Administrator. The Administrator shall
deduct the allowance without refund or other form of
recompense.
``(4) Use of allowances.--Allowances may not be used prior
to the calendar year for which they are allocated but may be
used in succeeding years. 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 Act, nor relieve affected facilities of
their requirements and liabilities under the Act.
``(f) Competitive Bidding for Power Supply.--Nothing in this title
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.
``(g) Applicability of the Antitrust Laws.--
``(1) In general.--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) Definition of antitrust laws.--In this section, the
term `antitrust laws' means those Acts set forth in section 1
of the Clayton Act (15 U.S.C. 12).
``(h) Public Utility Holding Company Act.--The acquisition or
disposition of allowances pursuant to this title 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.
``(i) Interpollutant Trading.--Not later than July 1, 2009, the
Administrator shall furnish to the Congress a study evaluating the
environmental and economic consequences of amending this title to
permit trading sulfur dioxide allowances for nitrogen oxides allowances
and nitrogen oxides allowances for sulfur dioxide allowances.
``(j) Compliance Assistance Account.--An account shall be
established by the Secretary of Energy in consultation with the
Administrator:
``(1) Use of amounts.--Payments or monies deposited in this
account in accordance with this title shall be used for the
purpose of developing emission control technologies through
direct grants to affected units that demonstrate new control
technologies regulated under this title.
``(2) Regulations.--The Secretary of Energy in consultation
with the Administrator shall promulgate regulations with notice
and opportunity for comment to establish criteria for affected
units to qualify for this subsection.
``SEC. 404. PERMITS AND COMPLIANCE PLANS.
``(a) Permit Program.--The provisions of this title shall be
implemented, subject to section 403, by permits issued to units and
facilities subject to this title and enforced in accordance with the
provisions of title V, as modified by this title. Any such permit
issued by the Administrator, or by a State with an approved permit
program, shall prohibit--
``(1) annual emissions of sulfur dioxide, nitrogen oxides,
and mercury in excess of the number of allowances required to
be held in accordance with sections 412(c), 422, 432, 452, and
472;
``(2) exceeding applicable emissions rates under section
441;
``(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.
No permit shall be issued that is inconsistent with the requirements of
this title, and title V as applicable.
``(b) Compliance Plan.--
``(1) In general.--Each initial permit application shall be
accompanied by a compliance plan for the facility to comply
with its requirements under this title. Where an affected
facility consists of more than one affected unit, such plan
shall cover all such units, and such facility shall be
considered a `facility' under section 502(c). Nothing in this
section regarding compliance plans or in title V shall be
construed as affecting allowances.
``(2) Statements.--
``(A) In general.--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 412(c),
413, 414, and 441, 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 412(c),
413, and 414, the owners and operators will hold sulfur
dioxide allowances in the amount required by section
412(c), shall be deemed to meet the proposed and
approved compliance planning requirements of this
section and title V, except that, for any unit that
will meet the requirements of this title by means of an
alternative method of compliance authorized under
section 413 (b), (c), (d), or (f), section 416, and
section 441 (d) or (e), 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 subpart 1 of part B or subpart 1
of part C.
``(B) Other statements.--Submission of a statement
by the owner or operator, or the designated
representative, of a facility that includes a unit
subject to the emissions limitation requirements of
sections 422, 432, 452, and 472 that the owner or
operator will hold sulfur dioxide allowances, nitrogen
oxide allowances, and mercury allowances, as the case
may be, in the amount required by such sections shall
be deemed to meet the proposed and approved compliance
planning requirements of this section and title V with
regard to subparts A through D.
``(3) Recording of transfers.--Recording by the
Administrator of transfers of allowances shall amend
automatically, and will not reopen or require reopening of, any
or all applicable proposed or approved permit applications,
compliance plans, and permits.
``(c) Permits.--The owner or operator of each facility under this
title that includes an affected unit subject to title V shall submit a
permit application and compliance plan with regard to the applicable
requirements under sections 412(c), 422, 432, 441, 452, and 472 for
sulfur dioxide emissions, nitrogen oxide emissions, and mercury
emissions from such unit to the permitting authority in accordance with
the deadline for submission of permit applications and compliance plans
under title V. The permitting authority shall issue a permit to such
owner or operator, or the designated representative of such owner or
operator, that satisfies the requirements of title V and this title.
``(d) 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.
``(e) Prohibition.--
``(1) In general.--It shall be unlawful for any person to
operate any facility subject to this title 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 504(f), with a permit issued under title V
which complies with this title for facilities subject to this
title shall be deemed compliance with this subsection as well
as section 502(a).
``(2) No termination of operations.--In order to ensure
reliability of electric power, nothing in this title or title V
shall be construed as requiring termination of operations of a
unit serving a generator for failure to have an approved permit
or compliance plan under this section.
``(f) Certificate of Representation.--No permit shall be issued
under this section to an affected unit or facility until the designated
representative of the owners or operators has filed a certificate of
representation with regard to matters under this title, including the
holding and distribution of allowances and the proceeds of transactions
involving allowances.
``(g) Multiple Owners.--
``(1) In general.--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 title,
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--
``(A) that allowances and the proceeds or
transactions involving allowance will be deemed to be
held or distributed in proportion to each holder's
legal, equitable, leasehold, or contractual reservation
or entitlement, or
``(B) 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.
``(2) Passive lessor.--A passive lessor, of 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 purposes of holding or distributing allowances
as provided in this subsection, 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.
``SEC. 405. MONITORING, REPORTING, AND RECORDKEEPING REQUIREMENTS.
``(a) Requirements.--
``(1) Applicability.--
``(A) In general.--The owner and operator of any
facility subject to this title shall be required to
install and operate CEMS on each affected unit subject
to subpart 1 of part B or subpart 1 of part C at the
facility, and to quality assure the data, for sulfur
dioxide, nitrogen oxides, opacity, and volumetric flow
at each such unit.
``(B) Specification of requirements.--The
Administrator shall, by regulation, specify the
requirements for CEMS under subparagraph (A), for any
alternative monitoring system that is demonstrated as
providing information with the same precision,
reliability, accessibility, and time lines as that
provided by CEMS, and for recordkeeping and reporting
of information from such systems. Such regulations may
include limitations on 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 title. 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.
``(2) Installation and operation.--
``(A) In general.--The owner and operator of any
facility subject to this title shall be required to
install and operate CEMS to monitor the emissions from
each affected unit at the facility, and to quality
assure the data for--
``(i) sulfur dioxide, opacity, and
volumetric flow for all affected units subject
to subpart 2 of part B at the facility,
``(ii) nitrogen oxides for all affected
units subject to subpart 2 of part C at the
facility, and
``(iii) mercury for all affected units
subject to part D at the facility.
``(B) Alternative monitoring.--
``(i) In general.--The Administrator may
specify an alternative monitoring or compliance
system for determining mercury emissions. In
specifying such alternative monitoring or
compliance systems, the lack of commercially
available appropriate and reasonable vendor
guarantees shall constitute a reasonable and
permissible basis for specifying alternative
monitoring or compliance systems for mercury.
``(ii) Limitations.--The regulations under
clause (iv) may include limitations on 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 to a reasonable extent the
emissions reductions contemplated by this
title.
``(iii) No separate monitoring system.--The
regulations under clause (iv) shall not require
a separate CEMS or other monitoring system for
each unit where two or more units utilize a
single stack and shall require that the owner
or operator collect sufficient information to
permit reliable compliance determinations for
such units.
``(iv) Specification of requirements.--The
Administrator shall, by regulation, specify the
requirements for CEMS under subparagraph (A),
for any alternative monitoring or compliance
system that is demonstrated as providing
information which is reasonably of 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 on 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
to a reasonable extent the emissions reductions
contemplated by this title. Where two 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) Deadlines.--
``(1) New utility units.--Upon commencement of commercial
operation of each new utility unit under subpart I of part B,
the unit shall comply with the requirements of subsection
(a)(1).
``(2) Deadline for affected units under subpart 2 of part b
for installation and operation of cems.--By the later of the
date that is 1 year before the commencement date of the sulfur
dioxide allowance requirement of section 422, or the date on
which the unit commences operation, the owner or operator of
each affected unit under subpart 2 of part B shall install and
operate CEMS, quality assure the data, and keep records and
reports in accordance with the regulations issued under
paragraph (a)(2) with regard to sulfur dioxide, opacity, and
volumetric flow.
``(3) Deadline for affected units under subpart 3 of part b
for installation and operation of cems.--By the later of the
date that is 1 year before the first covered year, or the date
on which the unit commences commercial operation, the owner or
operator of each affected unit under subpart 3 of part B shall
install and operate CEMS, quality assure the data, and keep
records and reports in accordance with the regulations issued
under paragraph (a)(2) with regard to sulfur dioxide and
volumetric flow.
``(4) Deadline for affected units under subpart 2 of part c
for installation and operation of cems.--By the later of the
date that is 1 year before the commencement date of the
nitrogen oxides allowance requirement under section 452, or the
date on which the unit commences operation, the owner or
operator of each affected unit under subpart 2 of part C shall
install and operate CEMS, quality assure the data, and keep
records and reports in accordance with the regulations issued
under paragraph (a)(2) with regard to nitrogen oxides.
``(5) Deadline for affected units under part d for
installation and operation of cems.--By the later of the date
that is 1 year before the commencement date of the mercury
allowance requirement of section 472 applies to such unit and
commences commercial operation, or the date on which the unit
commences operation, the owner or operator of each affected
unit under part D shall install and operate CEMS, quality
assure the data, and keep records and reports in accordance
with the regulations issued under paragraph (a)(2) with regard
to mercury.
``(c) Unavailability of Emissions Data.--
``(1) Sulfur dioxide and nitrogen oxides.--With respect to
sulfur dioxide and nitrogen oxides, if CEMS data or data from
an alternative monitoring system approved by the Administrator
under subsection (a) is not available for any affected unit
during any period of a calendar year in which such data is
required under this title, and the owner or operator cannot
provide information, reasonably satisfactory to the
Administrator, on emissions during that period, the
Administrator, in coordination with the owner, shall calculate
emissions for that period pursuant to regulations promulgated
for such purpose. The owner or operator shall be liable for
excess emissions fees and offsets under section 406 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 Act.
``(2) Mercury.--With respect to mercury, if CEMS data or
data from an alternative monitoring system approved by the
Administrator under subsection (a) is not available for any
affected unit during any period of a calendar year in which
such data is required under this title, and the owner or
operator cannot provide information, reasonably satisfactory to
the Administrator, on emissions during that period, the
Administrator in coordination with the owner, shall calculate
emissions for that period pursuant to regulations promulgated
for such purpose. The owner or operator shall be liable for
excess emissions fees and offsets under section 406 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 Act.
``(d) Implementation.--With regard to sulfur dioxide, nitrogen
oxides, opacity, and volumetric flow, the Administrator shall implement
subsections (a) and (c) under 40 CFR part 75 (2002), amended, as
appropriate by the Administrator. With regard to mercury, the
Administrator shall implement subsections (a) and (c) by issuing
proposed regulations not later than 36 months before the commencement
date of the mercury allowance requirement under section 472 and final
regulations not later than 24 months before that commencement date.
``(e) Prohibition.--It shall be unlawful for the owner or operator
of any facility subject to this title to operate a facility without
complying with the requirements of this section, and any regulations
implementing this section.
``SEC. 406. EXCESS EMISSIONS PENALTY; GENERAL COMPLIANCE WITH OTHER
PROVISIONS; ENFORCEMENT.
``(a) Excess Emissions Penalty.--
``(1) Amount for oxides of nitrogen.--The owner or operator
of any unit subject to the requirements of section 441 that
emits nitrogen oxides for any calendar year in excess of the
unit's emissions limitation requirement shall be liable for the
payment of an excess emissions penalty, except where such
emissions were authorized pursuant to section 110(f). That
penalty shall be calculated on the basis of the number of tons
emitted in excess of the unit's emissions limitation
requirement multiplied by $2,000.
``(2) Amount for sulfur dioxide before 2008.--The owner or
operator of any unit subject to the requirements of section
412(c) that emits sulfur dioxide for any calendar year before
2008 in excess of the sulfur dioxide 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
110(f) or (g). That penalty shall be calculated as follows:
``(A) The product of the unit's excess emissions
(in tons) multiplied by $2,000, if within 30 days after
the date on which the owner or operator was required to
hold sulfur dioxide allowances--
``(i) the owner or operator offsets the
excess emissions in accordance with paragraph
(b)(1); and
``(ii) the Administrator receives the
penalty payment required under this
subparagraph.
``(B) If the requirements of clause (A)(i) or
(A)(ii) are not met, the product of the unit's excess
emissions (in tons) multiplied by $3,000.
``(3) Amount for sulfur dioxide after 2007.--If the units
at a facility that are subject to the requirements of section
412(c) emit sulfur dioxide for any calendar year after 2007 in
excess of the sulfur dioxide allowances that the owner or
operator of the facility holds for use for the facility for
that calendar year, the owner or operator shall be liable for
the payment of an excess emissions penalty, except where such
emissions were authorized pursuant to section 110(f). That
penalty shall be calculated under paragraph (4)(A) or (4)(B).
``(4) Units subject to sections 422, 432, 452, or 472.--If
the units at a facility that are subject to the requirements of
section 422, 432, 452, or 472 emit sulfur dioxide, nitrogen
oxides, or mercury for any calendar year in excess of the
sulfur dioxide allowances, nitrogen oxides allowances, or
mercury allowances, as the case may be, that the owner or
operator of the facility holds for use for the facility or
units for that calendar year, the owner or operator shall be
liable for the payment of an excess emissions penalty, except
where such emissions were authorized pursuant to section
110(f). That penalty shall be equal to--
``(A) the quantity of the units' excess emissions
in tons (or, for mercury emissions, in ounces)
multiplied by $2,000 (in the case of sulfur dioxide),
$4,000 (in the case of nitrogen oxides), or $2187.50
(in the case of mercury) if, on or before the date that
is 30 days after the date on which the owner or
operator was required to hold sulfur dioxide, nitrogen
oxides allowance, or mercury allowances, as the case
may be--
``(i) the owner or operator offsets the
excess emissions in accordance with paragraph
(2) or (3) of subsection (b), as applicable;
and
``(ii) the Administrator receives the
penalty required under this subparagraph; or
``(B) if a requirement under subparagraph (A) is
not met, the quantity of the units' excess emissions in
tons (or, for mercury emissions, in ounces) multiplied
by the product obtained by multiplying--
``(i) 1.5; and
``(ii) the respective amount for sulfur
dioxide, nitrogen oxides, or mercury specified
in subparagraph (A).
``(5) Payment.--Any penalty under paragraph (1), (2), (3),
or (4) shall be due and payable without demand to the
Administrator as provided in regulations issued by the
Administrator. With regard to the penalty under paragraph 1,
the Administrator shall implement this paragraph under 40 CFR
part 77 (2002), amended as appropriate by the Administrator.
With regard to the penalty under paragraphs 2, 3, and 4, the
Administrator shall implement this paragraph by issuing
regulations no later than 24 months after the date of enactment
of the Clear Skies Act of 2005. Any such payment shall be
deposited in the Compliance Assistance Account.
``(b) Excess Emissions Offset.--
``(1) In general.--The owner or operator of any unit
subject to the requirements of section 412(c) that emits sulfur
dioxide during any calendar year before 2008 in excess of the
sulfur dioxide 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 Administrator
shall deduct sulfur dioxide allowances equal to the excess
tonnage from those held for the facility for the calendar year,
or succeeding years during which offsets are required,
following the year in which the excess emissions occurred.
``(2) Excess emissions of sulfur dioxide.--If the units at
a facility that are subject to the requirements of section
412(c) emit sulfur dioxide for a year after 2007 in excess of
the sulfur dioxide allowances that the owner or operator of the
facility holds for use for the facility for that calendar year,
the owner or operator shall be liable to offset the excess
emissions by an equal amount of tons in the following calendar
year, or such longer period as the Administrator may prescribe.
The Administrator shall deduct sulfur dioxide allowances equal
to the excess emissions in tons from those held for the
facility for the year, or succeeding years during which offsets
are required, following the year in which the excess emissions
occurred.
``(3) Excess emissions of sulfur dioxide, nitrogen oxides,
or mercury.--If the units at a facility that are subject to the
requirements of section 422, 432, 452, or 472 emit sulfur
dioxide, nitrogen oxides, or mercury for any calendar year in
excess of the sulfur dioxide allowances, nitrogen oxides
allowances, or mercury allowances, as the case may be, that the
owner or operator of the facility holds for use for the
facility for that calendar year, the owner or operator shall be
liable to offset the excess emissions by an equal amount of
tons or, for mercury, ounces in the following calendar year, or
such longer period as the Administrator may prescribe. The
Administrator shall deduct sulfur dioxide allowances, nitrogen
oxide allowances, or mercury allowances, as the case may be,
equal to the excess emissions in tons or, for mercury, ounces
from those held for the facility for the year, or succeeding
years during which offsets are required, following the year in
which the excess emissions occurred.
``(c) Penalty Adjustment.--The Administrator shall, by regulation,
adjust the penalty specified in subsection (a)(1) and (a)(2) 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 unit or facility liable for a penalty and offset under this
section to fail--
``(1) to pay the penalty under subsection (a); or
``(2) to offset excess emissions as required by subsection
(b).
``(e) Savings Provision.--Nothing in this title shall limit or
otherwise affect the application of section 113, 114, 120, or 304
except as otherwise explicitly provided in this title.
``(f) Other Requirements.--Except as expressly provided, compliance
with the requirements of this title shall not exempt or exclude the
owner or operator of any facility subject to this title from compliance
with any other applicable requirements of this Act. Notwithstanding any
other provision of this Act, no State or political subdivision thereof
shall restrict or interfere with the transfer, sale, or purchase of
allowances under this title.
``(g) Violations.--Violation by any person subject to this title of
any prohibition of, requirement of, or regulation promulgated pursuant
to this title shall be a violation of this Act. In addition to the
other requirements and prohibitions provided for in this title, the
operation of any affected unit or the affected units at a facility to
emit sulfur dioxide, nitrogen oxides, or mercury in violation of
section 412(c), 422, 432, 452, and 472, as the case may be, shall be
deemed a violation, with each ton or, in the case of mercury, each
ounce emitted in excess of allowances held constituting a separate
violation.
``SEC. 407. ELECTION FOR ADDITIONAL UNITS.
``(a) Applicability.--
``(1) In general.--The owner or operator of any unit that
is not an affected EGU under subpart 2 of part B and subpart 2
of part C and whose emissions of sulfur dioxide and nitrogen
oxides are vented only through a stack or duct may elect to
designate the unit as an affected unit under subpart 2 of part
B and subpart 2 of part C.
``(2) Effect of designation.--If the owner or operator
elects to designate a unit that is solid fuel-fired and emits
mercury vented only through a stack or duct, the owner or
operator shall also designate the unit as an affected unit
under part D. If an elected unit fires only gaseous fuels, the
unit may be designated under subpart 2 of part C only.
``(b) Application.--An owner or operator making an election under
subsection (a) shall submit an application for the election to the
Administrator for approval.
``(c) Approval.--Subject to subsections (d) through (m), if the
Administrator determines that an application for an election under
subsection (b) meets the requirements of subsection (a), the
Administrator shall approve the designation as an affected unit under
subpart 2 of part B and subpart 2 of part C and, if applicable, under
part D.
``(d) Establishment of Baseline.--
``(1) In general.--After approval of a designation under
subsection (c), an owner or operator shall install and operate
monitoring on the designated unit required under paragraph (5),
except that, in a case in which 2 or more units use a single
stack, separate monitoring shall be required for each unit
unless all units using the same stack are designated as
affected units.
``(2) Baselines.--
``(A) In general.--Units shall have baselines
established using heat input unless the unit qualifies
for a product output baseline under paragraph (4).
``(B) Heat input or product output.--The baselines
for heat input or product output and sulfur dioxide and
nitrogen oxides emission rates, as the case may be, for
the unit shall be the unit's heat input or product
output and the emission rates of sulfur dioxide and
nitrogen oxides in accordance with paragraphs (3) and
(4).
``(C) Regulations.--The Administrator shall
promulgate regulations requiring the unit's baselines
for heat input or product output and for sulfur dioxide
and nitrogen oxides emission rates to be based on the
same year and specifying minimum data requirements
consistent with paragraph (5) for baseline
determination.
``(3) Heat input and emissions baselines.--For the purposes
of this subsection, heat input and emissions baselines shall be
calculated, at the election of the owner or operator of the
relevant unit, as--
``(A)(i) for heat input, the average of the unit's
highest heat input for 3 of the 5 years before the year
for which the Administrator is determining the
allocations; and
``(ii) for emissions baselines, the average of the
relevant emissions during those same 3 years; or
``(B)(i) for heat input, the average of any period
of 24 consecutive months during the 10-year period
immediately prior to the date of submission of an
application under subsection (b), on the condition that
the heat input does not exceed 1.2 times the average of
the 10-year period; and
``(ii) for emissions baselines, the average of the
relevant emissions for the 4-year period prior to the
date of enactment of the Clear Skies Act of 2005 (for
units that submit an application on or before January
1, 2009), or the average of the relevant emissions for
the 4 years before the date of submission of the
application under that Act (for units that submit an
application after January 1, 2009).
``(4) Designation for product output basis.--
``(A) In general.--The owner or operator of a unit
that is subject to new source performance standards or
other measures imposed by this Act on a product output
basis rather than a heat input basis may elect to
designate the unit as an affected unit under subpart 2
of part B and subpart 2 of part C.
``(B) Baseline product output and emissions
baselines.--For the purposes of this paragraph, for
those units using a product output basis, the baseline
product output and emissions baselines in this
subparagraph shall be calculated, at the election of
the owner or operator of the relevant unit, as--
``(i)(I) for product input, the average of
the unit's highest product output for 3 of the
5 years preceding the year for which the
Administrator is determining the allocations;
and
``(II) for emissions baselines, the average
of the relevant emissions for the same years
used to determine product output; or
``(B)(i) for product input, the average of any
period of 24 consecutive months during the 10-year
period immediately prior to the date of submission of
an application under subsection (b), on the condition
that the product input does not exceed 1.2 times the
average of the 10-year period; and
``(ii) for emissions baselines, the average of the
relevant emissions for the 4-year period prior to the
date of enactment of the Clear Skies Act of 2005 (for
units that submit an application on or before January
1, 2009), or the average of the relevant emissions for
the 4 years before the date of submission of the
application under that Act (for units that submit an
application after January 1, 2009).
``(5) Baseline determinations.--
``(A) In general.--In making baseline
determinations under this section, the Administrator
may accept any reliable data on emissions of sulfur
dioxide and nitrogen oxides in addition to, and other
than, data collected from CEMS.
``(B) Types of data.--Reliable data described in
subparagraph (A) includes--
``(i) alternative data that has been used
to determine compliance with a regulatory or
monitoring requirement under this Act or a
comparable State law, if the data establishes a
reliable measure of heat input or product
output and sulfur dioxide and nitrogen oxides
emissions over a simultaneous period of time;
or
``(ii) if that data is not available, such
other alternative reliable data as the
Administrator may prescribe.
``(C) Use of cems for compliance monitoring.--The
Administrator--
``(i) shall not require the use of CEMS for
compliance monitoring by units of less than 250
mmBtu heat input or equivalent product output
capacity subject to this section unless the
Administrator concludes that a CEMS requirement
is necessary to generate reliable data for
compliance determinations;
``(ii) shall require the use of CEMS for
compliance monitoring by units of between 250
mmBtu and 750 mmBtu heat input or equivalent
product output capacity unless the
Administrator determines that a CEMS
requirement is not necessary to generate
reliable data for compliance determinations;
and
``(iii) shall require the use of CEMS for
compliance monitoring for all units greater
than 750 mmBtu heat input or equivalent product
output capacity.
``(D) Reliability.--In determining the reliability of data
for purposes of this subsection, the Administrator shall
consider the cost of generating more reliable data compared to
the quantitative importance of the resulting gain in
quantifying emissions.
``(e) Emission Limitations.--After approval of the designation of
the unit under subsection (c), the unit shall become--
``(1) an affected unit under subpart 2 of part B, and shall
be allocated sulfur dioxide allowances under subsection (f),
beginning on the later of January 1, 2010, or January 1 of the
year after approval of the designation;
``(2) an affected unit under subpart 2 of part C, and shall
be allocated nitrogen oxides allowances under subsection (f),
beginning on the later of January 1, 2010, or January 1 of the
year after approval of the designation; and
``(3) if applicable, an affected unit under part D, and
shall be allocated mercury allowances, beginning on the later
of January l, 2010, or January 1 of the year after approval of
designation.
``(f) Allocations.--
``(1) Sulfur dioxide and nitrogen oxides.--
``(A) In general.--The Administrator shall
promulgate regulations determining the allocations of
sulfur dioxide allowances and nitrogen oxides
allowances for each year during which a unit is an
affected unit under subsection (e).
``(B) Allocations.--The regulations shall provide
for allocations equal to 70 percent (beginning January
1, 2010) and 50 percent (beginning January 1, 2018) of
the unit's baseline heat input or product output under
subsection (d) multiplied by the lesser of--
``(i) the unit's baseline sulfur dioxide
emission rate or nitrogen oxides emission rate,
as the case may be; or
``(ii) the unit's most stringent Federal or
State emission limitation for sulfur dioxide or
nitrogen oxides applicable to the year on which
the unit's baseline heat input or product
output is based under subsection (d).
``(2) Mercury.--
``(A) In general.--The Administrator shall
promulgate regulations providing for the allocation of
mercury allowances to solid fuel-fired units designated
under this section for each year after January 1, 2010,
during which a unit is a designated unit under this
section.
``(B) Allocations.--The regulations shall provide
for allocations equal to the lesser of--
``(i) the product obtained by multiplying--
``(I) the unit's allowable
emissions rate for mercury under the
national emissions standards for
hazardous air pollutants for boilers
and process heaters, industrial
furnaces, kilns, or other stationary
source; by
``(II) the unit's baseline heat
input or product output; and
``(i) the product obtained by multiplying--
``(I) the unit's most stringent
Federal or State emission limitation
for mercury emissions rate; by
``(II) the unit's baseline heat
input or product output.
``(3) Limitation.--Allowances allocated to electing units
under paragraphs (1) and (2) shall comprise a separate
limitation on emissions from sections 423, 433, 453, 473, and
other provisions of this Act. These allowances for sulfur
dioxide, nitrogen oxides, or mercury, as the case may be, shall
be tradable with allowances allocated under sections 414, 424,
454, 474, as applicable, on the conditions that--
``(A) electing units may only trade nitrogen oxides
within the respective zones established under section
452 within which the electing unit is located; and
``(B) affected units within the WRAP States may
only purchase sulfur dioxide allowances allocated or
otherwise distributed by the Administrator to electing
units within the WRAP States, and will not be counted
for purposes of the affected unit's emissions within
the meaning of the WRAP Annex.
``(4) Incentives for early reductions.--
``(A) In general.--Not later than 180 months after
the date of enactment of this section, the
Administrator shall promulgate regulations authorizing
the allocation of sulfur dioxide, nitrogen oxides, and
mercury allowances to units designated under this
section that install or modify pollution control
equipment or combustion technology improvements
identified in such regulations after the date of
enactment of this section and prior to January 1, 2010.
``(B) Prohibition on certain allocations.--No
allowances shall be allocated under this paragraph for
emissions reductions attributable to--
``(i) pollution control equipment or
combustion technology improvements that were
operational or under construction at any time
prior to the date of enactment of this section;
``(ii) fuel switching; or
``(iii) compliance with any Federal
regulation.
``(C) Allowances.--The allowances allocated to any
unit under this paragraph shall--
``(i) be in addition to the allowances
allocated under paragraphs (1) and (2) and
sections 414, 424, 434, 454, and 474; and
``(ii) be allocated in an amount equal to 1
allowance of sulfur dioxide and nitrogen oxides
for each 1.05 tons of reduction in emissions of
sulfur dioxide and nitrogen oxides,
respectively, and 1.05 ounces of reduction in
the emissions of mercury, achieved by the
pollution control equipment or combustion
technology improvements starting with the year
in which the equipment or improvement is
implemented.
``(g) Withdrawal.--The Administrator shall promulgate regulations
withdrawing from the approved designation under subsection (c) any unit
that qualifies as an affected EGU under subpart 2 of part B or subpart
2 of part C, or part D after the approval of the designation of the
unit under subsection (c).
``(h) Regulations.--Not later than 18 months after the date of
enactment of the Clear Skies Act of 2005, the Administrator shall
promulgate regulations implementing this section.
``(i) Application Period.--
``(1) In general.--Applications for designation of units
under this section shall be accepted by the Administrator
beginning not later than 180 days after the date of enactment
of this section.
``(2) Approval and disapproval.--Except as provided in
paragraph (30, not later than 270 days after accepting an
application under paragraph (1), the Administrator shall
approve or disapprove the application.
``(3) Determination of completion.--
``(A) In general.--Not later than 90 days after
accepting an application under paragraph (1), the
Administrator shall determine whether the application
is complete.
``(B) Determination of completion.--Unless an
application accepted under paragraph (1) is determined
to be incomplete under subparagraph (A), the
application shall be subject to paragraph (2).
``(4) Stay of deadlines.--During the period beginning on
the date of acceptance by the Administrator of an application
under paragraph (1) and ending on the date on which the
Administrator acts on the petition, the applicable compliance
deadlines for NESHAPs under subsection (j) shall not apply to
the applicable unit that is the subject of the application.
``(j) NESHAP Applicability.--
``(1) Applicability.--
``(A) In general.--Except as provided in
subparagraph (B), a unit that is designated as an
affected unit under this section shall not be subject
to the national emissions standards for hazardous air
pollutants (NESHAP) promulgated under section 112(d)
for--
``(i) Industrial, Commercial, and
Institutional Boilers and Process Heaters (Fed.
Reg. 69-55217);
``(ii) Plywood and Composite Wood Panel
(Fed. Reg. 69-45943);
``(iii) Reciprocating Internal Combustion
Engines (Fed. Reg. 69-33473); or
``(iv) Stationary Combustion Turbines (Fed.
Reg. 69-10511).
``(B) Exception.--Units that are boilers or process
heaters, industrial furnaces, kilns, or other
stationary sources shall be subject on and after
January 1, 2010, to the emissions limitation for
mercury or the equivalent mercury allocation under
subsection (f)(2), along with associated monitoring and
compliance requirements, that would be applicable to
such units under the NESHAP for those sources
promulgated pursuant to section 112(d).
``(2) Reports.--
``(A) Preliminary report.--Not later than 18 months
after the date of enactment of this section, the
Administrator shall publish and make available for
public comment a peer reviewed preliminary report
characterizing the emissions and public health effects
that may reasonably be anticipated to occur from the
implementation of subsection (j)(1) and subsection (f).
``(B) Final report.--Not later than 30 months after
the date on which the preliminary report is published
under subparagraph (A), in accordance with section
112(n)(1)(A), the Administrator shall publish a final
report, including responses to the comments received.
``(C) Requirements.--The requirements of section
112(n)(1)(A), for purposes of this paragraph, shall be
considered to be modified to ensure that the final
report under subparagraph (B) includes--
``(i) an estimate of the numbers and types
of sources that are expected to be designated
under this section;
``(ii) an estimate of any increase or
decrease in the annual emissions of criteria
pollutants and of those hazardous air
pollutants subject to emission limitations
under the NESHAPs identified in subsection
(j)(1) from such sources that may reasonably be
expected to occur for each year from 2010
through 2018;
``(iii) an estimate of any increase or
decrease in the annual emissions of criteria
pollutants and of those hazardous air
pollutants subject to emission limitations
under the NESHAPs identified in subsection
(j)(1) from such sources that might reasonably
be expected to occur for each year from 2010
through 2018, if such sources estimated in
clause (i) are not designated under this
section; and
``(iv) a description of the public health
and environmental impacts associated with the
emissions increases and decreases described in
clauses (ii) and (iii).
``(D) Additional authority.--
``(i) In general.--Notwithstanding
subsection (j)(1), the Administrator may
regulate emissions of hazardous air pollutants
listed under section 112(b), other than mercury
compounds, from sources designated under this
section in accordance with section 112(f)(2).
``(ii) Determination.--Not later than 2
years after the date on which the final report
under subparagraph (B) is published, the
Administrator shall make a determination based
on the study and other information satisfying
the criteria of the Data Quality Act whether to
establish emissions limitations under section
112(f) for sources designated under this
section.
``(iii) Treatment of determination.--The
determination shall be a final agency action
subject to judicial review under section 307
and the Administrative Procedures Act.
``(k) Exemption From Major Source Preconstruction Review
Requirements and Best Available Retrofit Control Technology
Requirements.--
``(1) Major source exemption.--
``(A) In general.--Subject to subparagraph (B), a
unit designated as an affected unit under this section
shall not be considered to be a major source, or a part
of a major emitting facility or major stationary source
for purposes of compliance with the requirements of
parts C and D of title I, for the 20-year period
beginning on the date of enactment of the Clear Skies
Act of 2005.
``(B) Applicability.--Subparagraph (A) applies only
if, beginning on the date that is 8 years after the
date of enactment of this section or designation of a
unit as an affected unit--
``(i)(I) the designated unit either
achieves in fact, or is subject to a regulatory
requirement to achieve, a limit on the
emissions of particulate matter from the
affected unit to the level not greater than the
level applicable to the unit either pursuant to
subpart D of part 60 of title 40, Code of
Federal Regulations, or the national emissions
standards for hazardous air pollutants for
industrial boilers and process heaters issued
pursuant to section 112; or
``(II) the owner or operator of the
affected unit properly operates, maintains, and
repairs pollution control equipment to limit
emissions of particulate matter; and
``(ii) the owner or operator of the
designated unit uses good combustion practices
to minimize emissions of carbon monoxide.
``(2) Class i area protections.--Notwithstanding the
exemption in paragraph (1), an affected unit located within 50
kilometers of a Class I area on which construction commences
after the date of enactment of this section is subject to those
provisions under part C of title I to the review of a new or
modified major stationary source's impact on a Class I area.
``(l) Limitation.--
``(1) In general.--No unit designated under this section
shall 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--
``(A) reduced utilization or shutdown results from
the replacement of the unit designated under this
section, with any other unit or units subject to the
requirements of this subpart; and
``(B) the designated unit's allowances are
transferred or carried forward for use at such other
replacement unit or units.
``(2) No greater allocation.--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 Act.
``(3) No violation.--No allowances allocated under this Act
shall authorize operation of a unit in violation of any other
requirements of this Act.
``(m) Definition of Product Output.--In this section, the term
`product output' means the output of a stationary source that produces
a commercial product other than electricity, heat, or steam which may
be used to determine a baseline for units for which heat input is not
an appropriate baseline.''.
``SEC. 408. CLEAN COAL TECHNOLOGY REGULATORY INCENTIVES.
``(a) Definition.--For purposes of this section, the term `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
qualifying project shall be at least twenty 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 5 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 111 or part C or D of title I.
``(3) Permanent projects.--For permanent clean coal
technology demonstration projects that constitute repowering as
defined in section 411, any qualifying project shall not be
subject to standards of performance under section 111 or to the
review and permitting requirements of part C for any pollutant
the potential emissions of which will not increase as a result
of the demonstration project.
``(4) EPA regulations.--Not later than twelve months after
November 15, 1990, the Administrator shall promulgate
regulations or interpretive rulings to revise requirements
under section 111 and parts C and D, as appropriate, to
facilitate projects consistent in this subsection. With respect
to parts C and D, 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, 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.
``(c) Exemption for Reactivation of Very Clean Units.--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 111 or part C of the Act where the unit--
``(1) has not been in operation for the two-year period
prior to November 15, 1990, and the emissions from such unit
continue to be carried in the permitting authority's emissions
inventory on November 15, 1990;
``(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-NO<INF>X</INF> burners prior to
the time of commencement; and
``(4) is otherwise in compliance with the requirements of
this Act.
``SEC. 409. ELECTRICITY RELIABILITY.
``(a) Reliability.--
``(1) Applicability.--At any time prior the applicability
of this Act under sections 422, 432, 452, and 472, in order to
ensure the reliability of an electric utility company or
system, including a system cooperatively or municipally owned,
for a specified geographic area or service territory, as
determined by the Department of Energy in consultation with the
Administrator, during the installation of sulfur dioxide
pollution control technology or scrubbers, nitrogen oxides,
mercury or particulate matter control technology, or any
combination thereof, the owner or operator of an affected unit
may meet the requirements of sections 422, 432, 452, and 472 by
means of the compliance procedures of this subsection (a).
``(2) Petition.--The owner or operator of an affected unit
that believes it may experience an adverse impact on the
reliability of the company or system as a result, in
substantial part, of the need to construct sulfur dioxide
pollution control equipment or scrubbers, nitrogen oxides,
mercury or particulate matter control technology, or any
combination thereof, may petition the Secretary of Energy, in
consultation with the Administrator, for a determination that,
to a reasonable degree of certainty, reliability will likely be
threatened. Upon such a determination, the owner or operator
may elect to adopt a compliance method meeting the requirements
of this subsection, as follows:
``(A) Regulations.--Within 12 months of enactment
the Secretary of Energy shall promulgate regulations
describing the requirements for a petition and the
petition process, which will include notice and public
comment. The Secretary of Energy, in consultation with
the Administrator, shall make a final determination on
a petition within 180 days of the submittal of a
reasonably complete petition. Failure to act within the
180-day period will extend the applicability by 12
months for all units subject to the petition.
``(B) Contents of petition.--The petition must
contain--
``(i) a description of each affected unit,
the estimated outage time and a construction
schedule;
``(ii) an estimate of demand from date of
applicability until 2018;
``(iii) the impacts on reliability
associated with constructing all of the
pollution control projects, including those for
sulfur dioxide, nitrogen oxides, mercury, or
particulate matter, by the respective
deadlines; and
``(iv) how the proposed compliance schedule
would alleviate detrimental impacts.
``(C) Failure to promulgate regulations.--If the
Secretary of Energy fails to promulgate final
regulations or such regulations are not effective for
any reason, within the prescribed time, petitions
containing reasonably sufficient information for a
final determination may be submitted to the Secretary
of Energy and will be deemed complete.
``(3) Final determination.--In making a final determination
the Secretary of Energy, in consultation with the
Administrator, shall consider the following factors, provided
that not all factors need be present to make a determination
that, to a reasonable degree, reliability will be threatened:
``(A) Supply.--The ability of vendors to supply
scrubbers; scrubber system equipment, materials and
scrubber affected balance of plant equipment including
fans, pumps, electric motors, motor drives, dampers,
electrical power supply equipment; at fair prices with
meaningful guarantees or warranties as to availability,
delivery dates and meeting contracted pollution control
reduction requirements or emissions limitations; with
similar considerations for nitrogen oxides, mercury or
particulate matter control technology, or any
combination thereof.
``(B) Design and construction resources.--The
availability and limitations of key sulfur dioxide,
nitrogen oxides or mercury controls design resources
and North American construction resources. The design
resources shall include Architect Engineering companies
experienced in the design of sulfur dioxide, nitrogen
oxides, mercury or particulate matter control
technology. The construction resources shall include
construction companies with experience in the
construction of sulfur dioxide, nitrogen oxides,
mercury, or particulate matter control technology and
trained and experienced labor resources including but
not limited to boilermakers, iron workers,
electricians, mechanics;
``(C) Feasibility of construction.--The feasibility
to complete the construction of all pollution control
technology projects by the relevant applicability
compliance deadline;
``(D) Impact.--The impact in terms of unit outages
and construction schedules on a company or systems
reliability and whether such impact is unreasonable,
which term shall be presumed to be--
``(i) an increase in the price of purchase
power of (10) percent over the estimated cost
in cents per kilowatt for the company, system
or State, utilized in the latest submissions to
a relevant State or Federal agency;
``(ii) a projected reduction in available
generating capacity such that adequate reserve
margins for a company, system or State do not
exist, as determined by the Secretary of Energy
in coordination with the relevant Federal or
State utility agency or reliability council; or
``(iii) a supply shortage of coal needed to
meet emissions control expectations for any
proposed emissions control device.
``(E) Positive determination.--A company or system
which submits a petition to install sulfur dioxide,
nitrogen oxides, mercury, or particulate matter control
technology, or any combination thereof, on affected
units equaling 25 percent or more of its coal-fired
capacity shall be presumed to meet the requirements of
a positive determination from the Secretary of Energy.
``(4) Compliance.--Upon a positive determination by the
Secretary of Energy in accordance with paragraph (3)(E), such
affected units will be granted a 1-year extension from the
relevant applicability date under this title.
``(b) Submission of Petition.--During any year covered by this
title, an affected unit may submit a petition in accordance with
paragraph (a)(2) to allow use of sulfur dioxide allowances, nitrogen
oxides allowances, and mercury allowances, as the case may be,
allocated for the immediate next year to meet the applicable
requirement to hold such allowances equal to the petitioned year's
emissions.
``(c) Presidential Waiver.--Notwithstanding subsection (a) or any
other provision of this Act, The President of the United States shall
have authority to temporarily grant waivers from emission limitations
under sections 412, 422, 432, 452, and 472, as the case may be, if the
President determines that the reliability of any portion of national
electricity supply or national security is imperiled.
``PART B--SULFUR DIOXIDE EMISSION REDUCTIONS
``Subpart 1--Acid Rain Program
``SEC. 411. DEFINITIONS.
``For purposes of this subpart and subpart 1 of part B:
``(1) Actual 1985 emission rate.--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 1985 National Acid Precipitation
Assessment Program (NAPAP) Emissions Inventory, Version 2,
National Utility Reference File (NURF). 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.
``(2) Allowable 1985 emissions rate.--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.
``(3) Alternative method of compliance.--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 413(b) and (c); or
``(B) a phase I extension plan approved by the
Administrator under section 413(d), using qualifying
phase I technology as determined by the Administrator
in accordance with that section.
``(4) Baseline.--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 (NAPAP) Emissions Inventory,
Version 2 (NURF), or in a corrected data base as
established by the Administrator pursuant to paragraph
(3). For nonutility units, the baseline in 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 4 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, strikes, disruptions of fuel supplies,
failure of equipment, other causes beyond the
reasonable control of the owner or operator of the unit
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 18 months
after November 15, 1990.
``(C) The Administrator shall, upon application or
on his own motion, by December 31, 1991, supplement
data needed in support of this subpart 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 this subpart. 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) Basic phase ii allowance allocations.--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 412 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 414.
``(B) For each calendar year beginning in 2010,
allocations of allowances made by the Administrator
pursuant to section 412 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 414.
``(6) Capacity factor.--The term `capacity factor' means
the ratio between the actual electric output from a unit and
the potential electric output from that unit.
``(7) Commenced.--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.
``(8) Commenced commercial operation.--The term `commenced
commercial operation' with regard to a unit means the start up
of the unit's combustion chamber and commencement of the
generation of electricity for sale.
``(9) Construction.--The term `construction' means
fabrication, erection, or installation of an affected unit.
``(10) Existing unit.--The term `existing unit' means a
unit (including units subject to section 111) 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 subpart. For the purposes of this subpart, existing units
shall not include simple combustion turbines, or units which
serve a generator with a nameplate capacity of 25 MWe or less.
``(11) Independent power producer.--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.
``(12) New independent power production facility.--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) in nonrecourse project-financed (as such term
is defined by the Secretary of Energy within 3 months
of the date of the enactment of the Clean Air Act
Amendments of 1990); and
``(C) is a new unit required to hold allowances
under this subpart.
``(13) Industrial source.--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.
``(14) Life-of-the-unit, firm power contractual
arrangement.--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
``(C) for a period equal to or greater than 25
years or 70 percent of the economic useful life of the
unit determined as of the time the unit was built, with
option rights to purchase or release some portion of
the capacity and associated energy generated by the
unit (or units) at the end of the period.
``(15) New unit.--The term `new unit' means a unit that
commences commercial operation on or after November 15, 1990.
``(16) Nonutility unit.--The term `nonutility unit' means a
unit other than a utility unit.
``(17) Phase ii bonus allowance allocations.--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 412,
subsections (a)(2), (b)(2), (c)(4), (d)(3) (except as otherwise
provided therein), and (h)(2) of section 414, and section 415.
``(18) Qualifying phase i technology.--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.
``(19) Repowering.--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,
magneto-hydrodynamics, 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.
``(20) Reserve.--The term `reserve' means any bank of
allowances established by the Administrator under this subpart.
``(21) Utility unit.--
``(A) In general.--The term `utility unit' means--
``(i) a unit that serves a generator
located in any State and that produces
electricity for sale; or
``(ii) a unit that, during 1985, served a
generator located in any State and that
produced electricity for sale.
``(B) Exclusions.--
``(i) In general.--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 subpart.
``(i) Units that cogenerate steam and
electricity.--A unit that cogenerates steam and
electricity is not a `utility unit' for
purposes of this subpart 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 of more than
25 megawatts electrical output to any utility
power distribution system for sale.
``SEC. 412. ALLOWANCE ALLOCATION.
``(a) In General.--Except as provided in sections 414(a)(2),
415(a)(3), and 416, beginning January 1, 2000, the Administrator shall
not allocate annual emission allowances for 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 414. Subject to the provisions of section 417, the
Administrator shall allocate allowances for each affected until at an
affected source annually, as provided in paragraphs (2) and (3) and
section 404. Except as provided in sections 416, 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 413 or 414 to which the
unit is entitled. Prior to June 1, 1998, the Administrator shall
publish a revised final statement of allowance allocations, subject to
the provisions of section 414(a)(2).
``(b) New Utility Units.--
``(1) Prohibition of exceeding unit allowances.--After
January 1, 2000 and through December 31, 2007, 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.
``(2) Prohibition of exceeding source allowances.--Starting
January 1, 2008, a new utility unit shall be subject to the
prohibition in subsection (c)(3).
``(3) Eligibility for allocation of sulfur dioxide
allowances.--New utility units shall not be eligible for an
allocation of sulfur dioxide allowances under subsection
(a)(1), unless the unit is subject to the provisions of
subsection (g)(2) or (3) of section 414. New utility units may
obtain allowances from any person, in accordance with this
title. The owner or operator of any new utility unit in
violation of subsection (b)(1) or subsection(c)(3) shall be
liable for fulfilling the obligations specified in section 406.
``(c) Prohibitions.--
``(1) In general.--It shall be unlawful for any person to
hold, use, or transfer any allowance allocated under this
subpart, except in accordance with regulations promulgated by
the Administrator.
``(2) Prohibition of exceeding unit allowances.--For any
year 1995 through 2007, 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.
``(3) Prohibition of exceeding source allowances.--Starting
January 1, 2008, it shall be unlawful for the affected units at
a source to emit a total amount of sulfur dioxide during the
year in excess of the number of allowances held for the source
for that year by the owner or operator of the source.
``(4) Effect on other emission limitations.--Upon the
allocation of allowances under this subpart, the prohibition in
paragraphs (2) and (3) shall supersede any other emission
limitation applicable under this subpart to the units for which
such allowances are allocated.
``(d) Limitation on Regulations.--In order to ensure electricity
reliability, regulations establishing a system for issuing, recording,
and tracking allowances under section 403(b) and this subpart 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 recording. 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,
including for calendar years after 2007, allowances held for such units
by the owner or operator of the sources where the units are located.
``(e) Interest in Affected Units.--Where there are multiple holders
of a legal or equitable title to, or a leasehold interest in, an
affected 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 of representation
required under section 404(f) shall state--
``(1) that allowances under this subpart and the proceeds
of transactions involving such 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 under this subpart and the proceeds of transactions
involving such 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 under this subpart received by the unit are deemed to be
held for that person.
``SEC. 413. PHASE I SULFUR DIOXIDE REQUIREMENTS.
``(a) Emission Limitations.--
``(1) Allocation.--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 section 413(d)(2)) to emit sulfur dioxide in
excess of the tonnage limitation stated as a total number of
allowances in table A for phase 1; unless--
``(A) the emissions reduction requirements
applicable to such unit have been achieved pursuant to
subsection (b) or (d); 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
414. The owner or operator of any unit in violation of
this section be fully liable for such violation
including, but not limited to, liability for fulfilling
the obligations specified in section 406.
``(2) Determination.--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 subpart that the
Administrator finds would have occurred in the absence
of the imposition of such requirements. Pursuant to
subsection (d), the Administrator shall allocate
allowances from the reserve established hereunder until
the earlier of such time as all such allowances in the
reserve are allocated or December 31, 1999.
``(3) Additional allocations.--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) may include in its section 404 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)
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 411(4), 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.
``(c) Administrator's Action on Substitution Proposals.--
``(1) In general.--The Administrator shall take final
action on such substitution proposal in accordance with section
404(c) 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 title. If
a proposal does not meet the requirements of subsection (b),
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) Issuance of permits.--Upon approval of a substitution
proposal, each substitute unit, and each source with such unit,
shall be deemed affected under this title, 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 404. The Administrator
shall allocate allowances for the original and substitute
affected units in accordance with the approved substitution
proposal pursuant to section 412. 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 unit's 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 406. If a substitution proposal is
disapproved, the Administrator shall allocate allowances to the
original affected unit or units in accordance with subsection
(a).
``(d) Eligible Phase I Extension Units.--
``(1) In general.--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 404 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 404, that
shall govern operations at all units included in the transfer,
and that specifies the emissions reduction requirements imposed
pursuant to this title.
``(2) Requirements for extension proposals.--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;
``(C) specify the unit's or units' baselines,
actual 1985 emissions rates, allowable 1985 emissions
rates, and projected utilizations 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) Approval or disapproval.--The Administrator shall
review and take final action on each extension proposal in
order of receipt, consistent with section 404, 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 subpart.
``(4) Determining the availability of allocations.--In
order to determine the number of proposals eligible for
allocations from the reserve under subsection (a)(2) and the
number of the 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
subparagraph (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
``(C) the amount by which (i) the product of each
unit's baseline 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) Allocation of initial allowances.--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), allowances equal
to the difference between the lesser of the average annual
emissions in calendar years 1988 and 1989 or its projected
emission 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),
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) Allocation of additional allowances.--In addition to
allowances specified in paragraph (4), 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), 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) Deduction from annual allowance allocations.--After
January 1, 1997, in addition to any liability under this Act,
including under section 406, 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 (2) 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) Early Reductions.--
``(1) In general.--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 414 (but is not also an affected unit under
this section) and part of a utility system that
includes one or more affected units under section 414
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) Limitations.--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 414, the
allowances awarded under this subsection for early reductions
in any prior year may not exceed the amount by which--
``(A) the product of--
``(i) the quantity of fossil fuel consumed
by the unit (in mmBtu) in the prior year
multiplied by--
``(ii) the lesser of--
``(I) 2.50, or
``(II) the most stringent emission
rate (in lbs per mmBtu) applicable to
the unit under the applicable
implementation plan--
divided by 2,000 exceeds
``(B) the unit's actual tonnage of sulfur dioxide
emission for the prior year concerned.
Allowances allocated under this subsection for units 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
quantity of fossil fuel consumed.
``(3) No basis for excused nonperformance.--In no event
shall the provisions of this paragraph be interpreted as an
event of force majeure or a commercial impracticability 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)
----------------------------------------------------------------------------------------------------------------
Phase I
State Plant name Generator allowances
----------------------------------------------------------------------------------------------------------------
Alabama........................................ Colbert................................ 1 13,570
2 15,310
3 15,400
4 15,410
5 37,180
E.C. Gaston............................ 1 18,100
2 18,540
3 18,310
4 19,280
5 59,840
Florida........................................ Big Bend............................... 1 28,410
2 27,100
3 26,740
Crist.................................. 6 19,200
7 31,680
Georgia........................................ Bowen.................................. 1 56,320
2 54,770
3 71,750
4 71,740
Hammond................................ 1 8,780
2 9,220
3 8,910
4 37,640
J. McDonough........................... 1 19,910
2 20,600
Wansley................................ 1 70,770
2 65,430
Yates.................................. 1 7,210
2 7,040
3 6,950
4 8,910
5 9,410
6 24,760
7 21,480
Illinois....................................... Baldwin................................ 1 42,010
2 44,420
3 42,550
Coffeen................................ 1 11,790
2 35,670
Grand Tower............................ 4 5,910
Hennepin............................... 2 18,410
Joppa Steam............................ 1 12,590
2 10,770
3 12,270
4 11,360
5 11,420
6 10,620
Kincaid................................ 1 31,530
2 33,810
Meredosia.............................. 3 13,890
Vermilion.............................. 2 8,880
Indiana........................................ Bailly................................. 7 11,180
8 15,630
Breed.................................. 1 18,500
Cayuga................................. 1 33,370
2 34,130
Clifty Creek........................... 1 20,150
2 19,810
3 20,410
4 20,080
5 19,360
6 20,380
E.W. Stout............................. 5 3,880
6 4,770
7 23,610
F.B. Culley............................ 2 4,290
3 16,970
F.E. Ratts............................. 1 8,330
2 8,480
Gibson................................. 1 40,400
2 41,010
3 41,080
4 40,320
H.T. Pritchard......................... 6 5,770
Michigan City.......................... 12 23,310
Petersburg............................. 1 16,430
2 32,380
R. Gallagher........................... 1 6,490
2 7,280
3 6,530
4 7,650
Tanners Creek.......................... 4 24,820
Wabash River........................... 1 4,000
2 2,860
3 3,750
5 3,670
6 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
2 12,840
3 12,340
Cooper................................. 1 7,450
2 15,320
E.W. Brown............................. 1 7,110
2 10,910
3 26,100
Elmer Smith............................ 1 6,520
2 14,410
Ghent.................................. 1 28,410
Green River............................ 4 7,820
H.L. Spurlock.......................... 1 22,780
Henderson II........................... 1 13,340
2 12,310
Paradise............................... 3 59,170
Shawnee................................ 10 10,170
Maryland....................................... Chalk Point............................ 1 21,910
2 24,330
C.P. Crane............................. 1 10,330
2 9,230
Morgantown............................. 1 35,260
2 38,480
Michigan....................................... J.H. Campbell.......................... 1 19,280
2 23,060
Minnesota...................................... High Bridge............................ 6 4,270
Mississippi.................................... Jack Watson............................ 4 17,910
5 36,700
Missouri....................................... Asbury................................. 1 16,190
James River............................ 5 4,850
Labadie................................ 1 40,110
2 37,710
3 40,310
4 35,940
Montrose............................... 1 7,390
2 8,200
3 10,090
New Madrid............................. 1 28,240
2 32,480
Sibley................................. 3 15,580
Sioux.................................. 1 22,570
2 23,690
Thomas Hill............................ 1 10,250
2 19,390
New Hampshire.................................. Merrimack.............................. 1 10,190
2 22,000
New Jersey..................................... B.L. England........................... 1 9,060
2 11,720
New York....................................... Dunkirk................................ 3 12,600
4 14,060
Greenidge.............................. 4 7,540
Milliken............................... 1 11,170
2 12,410
Northport.............................. 1 19,810
2 24,110
3 26,480
Port Jefferson......................... 3 10,470
4 12,330
Ohio........................................... Ashtabula.............................. 5 16,740
Avon Lake.............................. 8 11,650
9 30,480
Cardinal............................... 1 34,270
2 38,320
Conesville............................. 1 4,210
2 4,890
3 5,500
4 48,770
Eastlake............................... 1 7,800
2 8,640
3 10,020
4 14,510
5 34,070
Edgewater.............................. 4 5,050
Gen. J.M. Gavin........................ 1 79,080
2 80,560
Kyger Creek............................ 1 19,280
2 18,560
3 17,910
4 18,710
5 18,740
Miami Fort............................. 5 760
6 11,380
7 38,510
Muskingum River........................ 1 14,880
2 14,170
3 13,950
4 11,780
5 40,470
Niles.................................. 1 6,940
2 9,100
Picway................................. 5 4,930
R.E. Burger............................ 3 6,150
4 10,780
5 12,430
W.H. Sammis............................ 5 24,170
6 39,930
7 43,220
W.C. Beckjord.......................... 5 8,950
6 23,020
Pennsylvania................................... Armstrong.............................. 1 14,410
2 15,430
Brunner Island......................... 1 27,760
2 31,100
3 53,820
Cheswick............................... 1 39,170
Conemaugh.............................. 1 59,790
2 66,450
Hatfield's Ferry....................... 1 37,830
2 37,320
3 40,270
Martins Creek.......................... 1 12,660
2 12,820
Portland............................... 1 5,940
2 10,230
Shawville.............................. 1 10,320
2 10,320
3 14,220
4 14,070
Sunbury................................ 3 8,760
4 11,450
Tennessee...................................... Allen.................................. 1 15,320
2 16,770
3 15,670
Cumberland............................. 1 86,700
2 94,840
Gallatin............................... 1 17,870
2 17,310
3 20,020
4 21,260
Johnsonville........................... 1 7,790
2 8,040
3 8,410
4 7,990
5 8,240
6 7,890
7 8,980
8 8,700
9 7,080
10 7,550
West Virginia.................................. Albright............................... 3 12,000
Fort Martin............................ 1 41,590
2 41,200
Harrison............................... 1 48,620
2 46,150
3 41,500
Kammer................................. 1 18,740
2 19,460
3 17,390
Mitchell............................... 1 43,980
2 45,510
Mount Storm............................ 1 43,720
2 35,580
3 42,430
Wisconsin...................................... Edgewater.............................. 4 24,750
La Crosse/Genoa........................ 3 22,700
Nelson Dewey........................... 1 6,010
2 6,680
N. Oak Creek........................... 1 5,220
2 5,140
3 5,370
4 6,320
Pulliam................................ 8 7,510
S. Oak Creek........................... 5 9,670
6 12,040
7 16,180
8 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.
``(C) Electric utility.--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), 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
or participating in the qualified energy
conservation measures or qualified renewable
energy.
``(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) In the case of electric utilities
subject to the jurisdiction of a State
regulatory authority such plan shall have been
approved by such authority. For electric
utilities not subject to the jurisdiction of a
State regulatory authority such plan shall have
been approved by the Administrator.
``(iv) In the case of qualified energy
conservation measures undertaken by a State
regulated electric utility, the Secretary of
Energy has certified 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 (B)
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.
``(C) Period of applicability.--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
subpart (including those sources that elect to become
affected by this title, pursuant to section 417).
``(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;
``(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.
``(ii) Approval.--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 the product so
derived 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 the product so
derived 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.--The Administrator shall implement this
subsection under 40 CFR part 73 (2002), amended as appropriate
by the Administrator. 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 and
from State-to-State in accordance with the Administrator's
rules. The Administrator shall publish and make available to
the public 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 411. 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. Notwithstanding the prior sentence, if
allowances remain in the reserve on January 1, 2010, the Administrator
shall allocate such allowances for affected units under section 414 on
a pro rata basis. For purposes of this subsection, for any unit subject
to the emissions limitation requirements of section 414, 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
``(C) is part of a utility system which has a
weighted average sulfur dioxide emissions rate for all
fossil fueled-fired units below 1.0 lbs/mmBtu, at the
election to the owner or operator of such unit, the
unit's baseline may be calculated--
``(i) as provided under section 411, 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 412(a), this
section, and section 414 (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 414.
``SEC. 414. PHASE II SULFUR DIOXIDE REQUIREMENTS.
``(a) Applicability.--
``(1) Basic phase ii allowance allocations.--After January
l, 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 subpart. 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.
``(2) Basic phase ii bonus allowance allocations.--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 415.
``(3) Additional allowance allocations for certain affected
sources and units.--In addition to basic phase II allowances
allocations and phase II bonus allowance allocations, beginning
January 1, 2000, the Administrator shall allocate for each unit
listed on table A in section 413 (other than units at Kyger
Creek, Clifty Creek, and Joppa Stream) 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 Stream). Allowances allocated pursuant
to this paragraph shall not be subject to the 8,900,000 ton
limitation in section 412(a).
``(b) Units Equal To, or Above, 75 MWe and 1.20 lbs/mmBtu.--
``(1) Basic phase ii allowance allocations.--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 or, for a year after 2007, unless the owner or
operator of the source that includes such unit holds allowances
to emit not less than the total annual emissions of all
affected units at the source.
``(2) Reserve allowances.--In addition to allowances
allocated pursuant to paragraph (1) and section 412(a) 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) 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) Prohibition.--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 107 of this Act for any pollutant subject to the
requirements of section 109 of this Act 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 or, for a year after 2007, unless the owner or
operator of the source that includes such unit holds allowances
to emit not less than the total annual emissions of all
affected units at the source.
``(4) Annual allowance allocations.--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.
``(c) Coal or Oil-Fired Units Below 75 MWe and Above 1.20 lbs/
mmBtu.--
``(1) Steam-electric capacity equal to or greater than 250
mwe.--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 for a year after 2007, or the owner or
operator of the source that includes such unit holds allowances
to emit not less than the total annual emissions of all
affected units at the source.
``(2) Steam-electric capacity less than 250 mwe.--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 111 of the Act 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, for a
year after 2007, or the owner or operator of the source that
includes such unit holds allowances to emit not less than the
total annual emissions of all affected units at the source.
``(3) Steam-electric capacity between 250 and 450 mwe.--
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 total annual
emissions or, for a year after 2007, unless the owner or
operator of the source that includes such unit holds allowances
to emit not less than the total annual emissions of all
affected units at the source. 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 for a year
after 2007, or the owner or operator of the source that
includes such unit holds allowances to emit not less than the
total annual emissions of all affected units at the source.
``(4) Reserve allowances.--In addition to allowances
allocated pursuant to paragraph (1) and section 412(a) 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) 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) Certain electric utility systems.--After January 1,
2000, it shall be unlawful for any existing 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, for a
year after 2007, or the owner or operator of the source
that includes such unit holds allowances to emit not
less than the total annual emissions of all affected
units at the source. 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
project 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 for a year after
2007, or the owner or operator of the source that
includes such unit holds allowances to emit not less
than the total annual emissions of all affected units
at the source.
``(d) Coal-Fired Units Below 1.20 lbs/mmBtu.--
``(1) Rate less than 0.60 lbs/mmbtu.--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 for a year after 2007, or the owner or
operator of the source that includes such unit holds
allowances to emit not less than the total annual
emissions of all affected units at the source.
``(2) Rate between 0.60 and 1.20 lbs/mmbtu.--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 for a year after 2007, or the owner or operator of
the source that includes such unit holds allowances to emit not
less than the total annual emissions of all affected units at
the source.
``(3) Reserve allowance.--
``(A) In general.--In addition to allowances
allocated pursuant to paragraph (1) and section 412(a)
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) 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 403(a)(1) as
basic phase II allowance allocations.
``(B) Units subject to certain limitations.--In addition to
allowances allocated pursuant to paragraph (2) and section
412(a) 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) 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 412(a) as
basic phase II allowance allocations.
``(C) Election by operating company.--An operating company
with units subject to the emissions 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) Alternative allocation.--Notwithstanding any other
provision of this section, at the election of the owner or
operator, after January l, 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 111 of the Act 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) Clean coal technology demonstration grant.--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, 2002, 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 for a year after 2007, or the owner or operator
of the source that includes such unit holds allowances to emit not less
than the total annual emissions of all affected units at the source.
``(f) Oil and Gas-Fired Units Less Than 0.60 lbs/mmBtu.--
``(1) In general.--After January 1, 2000, it shall be
unlawful for any oil and gas-fired existing utility unit the
lesser of whose actual or allowance 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
allowance 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, for a year after 2007, or the owner
or operator of the source that includes such unit holds
allowances to emit not less than the total annual
emissions of all affected units at the source.
``(2) Additional allocation.--In addition to allowances
allocated pursuant to paragraph (1) as basic phase II allowance
allocations and section 412(a), 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 Commercial Operation Between 1986 and
December 31, 1995.--
``(1) In general.--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 allowance 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 for a year after 2007, or the owner or operator of
the source that includes such unit holds allowances to emit not
less than the total annual emissions of all affected units at
the source.
``(2) Unit allowances.--After January 1, 2000, the
Administrator shall allocate allowances pursuant to section 411
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 Allowances
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
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) Units that commenced commercial operation between
october 1, 1990, and december 31, 1992.--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) Units that commenced commercial operation between
january 1, 1993, and december 31, 1995.--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) Units that converted to coal fired operation between
january 1, 1985, and december 31, 1987.--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)
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 for
a year after 2007, or the owner or operator of the source that
includes such unit holds allowances to emit not less than the
total annual emissions of all affected units at the source.
``(6) Applicability to qualifying small power production
facilities, qualifying cogeneration facilities, and new
independent power production facilities.--Unless the
Administrator has approved a designation of such facility under
section 417, the provisions of this subpart shall not apply to
a `qualifying small power production facility' or `qualifying
cogeneration facility' (within the meaning of section 3(17)(C)
or 3(18)(B) of the Federal Power Act) or to a `new independent
power production facility' if, as of November 15, 1990--
``(A) an applicable power sales agreement has been
executed;
``(B) 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;
``(C) 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
``(D) 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) In general.--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 for a year after 2007, or the
owner or operator of the source that includes such unit holds
allowances to emit not less than the total annual emissions of
all affected units at the source.
``(2) Reserve allowances.--In addition to allowances
allocated pursuant to paragraph (1) and section 412(a) 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) in an amount equal to the unit's baseline multiplied by
0.050 lbs/mmBtu, divided by 2,000.
``(3) Additional allowances.--In addition to allowances
allocated pursuant to paragraph (1) and section 412(a),
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) Annual allocations.--In addition to allowances
allocated pursuant to this section and section 412(a) 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--
``(i) 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
``(ii) 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) Additional allocations.--Beginning January 1, 2000,
in addition to allowances allocated pursuant to this section
and section 403(a)(1) as basic phase II allowance allocations,
the Administrator shall allocate annually for each unit subject
to the emissions limitation requirements of subsection (b)(1)--
``(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 percent 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) 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):
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 412(a) 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.
``SEC. 415. ALLOWANCES FOR STATES WITH EMISSIONS RATES AT OR BELOW 0.80
LBS/MMBTU.
``(a) Election of Governor.--In addition to basic phase II
allowance allocations, upon the election of the Governor of any State,
with a 1985 statewide 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 11 bonus allowance allocations,
allowances from the reserve created pursuant to section 414(a)(2) 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 412(a),
each Governor of a State eligible to make an election under paragraph
(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 414.
``(c) Allowances After January 1, 2010.--After January 1, 2010, the
Administrator shall allocate allowances to units subject to the
provisions of this section pursuant to section 414.
``SEC. 416. ELECTION FOR ADDITIONAL SOURCES.
``(a) Applicability.--The owner or operator of any unit that is
not, nor will become, an affected unit under section 412(b), 413, or
414, that emits sulfur dioxide, may elect to designate that unit or
source to become an affected unit and to receive allowances under this
subpart. An election shall be submitted to the Administrator for
approval, along with a permit application and proposed compliance plan
in accordance with section 404. The Administrator shall approve a
designation that meets the requirements of this section, and such
designated unit shall be allocated allowances, and be an affected unit
for purposes of this subpart.
``(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.
``(c) Emission Limitations.--
``(1) Elections submitted before january 1, 2002.--For a
unit for which an election, along with a permit application and
compliance plan, is submitted to the Administrator under
paragraph (a) before January 1, 2002, 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.
``(2) Elections submitted after january 1, 2002.--For a
unit for which an election, along with a permit application and
compliance plan, is submitted to the Administrator under
paragraph (a) on or after January 1, 2002, 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 4,000.
``(d) 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), in accordance
with section 412. Such allowance may be used in accordance with, and
shall be subject to, the provisions of section 412. Affected sources
under this section shall be subject to the requirements of sections
404, 405, 406, and 412.
``(e) 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 subpart, 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 Act. No such allowances shall authorize operation of a unit in
violation of any other requirements of this Act.
``(f) Implementation.--The Administrator shall implement this
section under 40 CFR part 74 (2002), amended as appropriate by the
Administrator.
``SEC. 417. AUCTIONS, RESERVE.
``(a) Special Reserve of Allowances.--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 11 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.
``(b) 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
from 2000 through 2009, inclusive.
``(2) Annual auctions.--Commencing in 1993 and in each year
thereafter until 2010, 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. The allowances referred to in paragraph (1)
shall be offered for sale at auction in the amounts specified
in table C. 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 subpart and subpart 2.
TABLE C--NUMBER OF ALLOWANCES AVAILABLE FOR AUCTION
------------------------------------------------------------------------
Spot
Year of sale auction Advance
(same year) auction
------------------------------------------------------------------------
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.......................................... 125,000 125,000
2001.......................................... 125,000 125,000
2002.......................................... 125,000 125,000
2003.......................................... 125,000 0
2004-2009..................................... 125,000 0
------------------------------------------------------------------------
``(3) Proceeds.--
``(A) Transfer.--Notwithstanding section 3302 of
title 31 of the United States Code 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). 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) Return.--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. With 170
days after the date of enactment of the Clear Skies Act
of 2005, any allowance withheld under paragraph (a)(2)
but not offered for sale at an 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) 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 subpart.
``(c) Changes in 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 auctions) and 2005 (in the case
of spot auctions) decrease the number of allowances withheld and sold
under this section.
``(d) Termination of Auctions.--Not later than the commencement
date of the sulfur dioxide allowance requirement under section 422, the
Administrator shall terminate the withholding of allowances and the
auction sales under this section. 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.
``(e) Applicable Law.--The Administrator shall implement this
section under 40 CFR part 73 (2002), amended as appropriate by the
Administrator.
``SEC. 418. INDUSTRIAL SULFUR DIOXIDE EMISSIONS.
``(a) Report.--Not later than January 1, 1995 and every 5 years
thereafter, the Administrator shall transmit to the Congress a report
containing an inventory of national annual sulfur dioxide emissions
from industrial sources (as defined in section 411(11)), including
units subject to section 414(g)(2), for all years for which data are
available, as well as the likely trend in such emission over the
following twenty-year period. The reports shall also contain estimates
of the actual emission reduction in each year resulting from
promulgation of the diesel fuel desulfurization regulations under
section 214.
``(b) 5.60 Million Ton Cap.--Whenever the inventory required by
this section indicates that sulfur dioxide emissions from industrial
sources, including units subject to section 414(g)(2), and may
reasonably be expected to reach levels greater than 5.60 million tons
per year, the Administrator shall take such actions under the Act as
may be appropriate to ensure that such emissions do not exceed 5.60
million tons per year. Such actions may include the promulgation of new
and revised standards of performance for new sources, including units
subject to section 414(g)(2), under section 111(b), as well as
promulgation of standards of performance for existing sources,
including units subject to section 414(g)(2), under authority of this
section. For an existing source regulated under this section, `standard
of performance' means a standard which the Administrator determines is
applicable to that source and which reflects the degree of emission
reduction achievable through the application of the best system of
continuous emission reduction which (taking into consideration the cost
of achieving such emission reduction, and any nonair quality health and
environmental impact and energy requirements) the Administrator
determines has been adequately demonstrated for that category of
sources.
``(c) Election.--Regulations promulgated under section 414(b) shall
not prohibit a source from electing to become an affected unit under
section 417.
``SEC. 419. TERMINATION.
``Starting January l, 2010, the owners or operators of affected
units and affected facilities under sections 412(b) and (c) and 416 and
shall no longer be subject to the requirements of sections 412 through
417.
``Subpart 2--Clear Skies Sulfur Dioxide Allowance Program
``SEC. 421. DEFINITIONS.
``For purposes of this subpart--
``(1) Affected EGU.--The term `affected EGU' means--
``(A) for a unit serving a generator before the
date of enactment of the Clear Skies Act of 2005, a
unit in a State serving a generator with a nameplate
capacity of greater than twenty-five megawatts that
produced or produces electricity for sale during 2002
or any year thereafter, except for a cogeneration unit
that meets the criteria for qualifying cogeneration
facilities codified in section 292.205 of title 18 of
the Code of Federal Regulations as issued on April 1,
2002 during 2002 and each year thereafter; and
``(B) for a unit commencing service of a generator
on or after the date of enactment of the Clear Skies
Act of 2005, a unit in a State serving a generator that
produces electricity for sale during any year starting
with the year the unit commences service of a
generator, except for a unit serving one or more
generators with total nameplate capacity of twenty-five
megawatts or less, or a cogeneration unit that meets
the criteria for qualifying cogeneration facilities
codified in section 292.205 of title 18 of the Code of
Federal Regulations as issued on April 1, 2002, during
each year starting with the year the unit commences
services of a generator.
Notwithstanding paragraphs (A) and (B), the term `affected EGU'
does not include a solid waste incineration unit subject to
section 129 or a unit for the treatment, storage, or disposal
of hazardous waste subject to section 3005 of the Solid Waste
Disposal Act.
``(2) Coal-fired.--The term `coal-fired' with regard to a
unit means, for purposes of section 424, combusting coal or any
coal-derived fuel alone or in combination with any amount of
any other fuel in any year during 1998 through 2002 or, for a
unit that commenced operation on or after January 1, 2003, a
unit designed to combust coal or any coal derived fuel alone or
in combination with any other fuel.
``(3) Eastern bituminous.--The term `Eastern bituminous'
means bituminous that is from a mine located in a State east of
the Mississippi River.
``(4) General account.--The term `general account' means an
account in the Allowance Tracking System under section 403(c)
established by the Administrator for any person under 40 CFR
part 73.31(c) (2002), amended as appropriate by the
Administrator.
``(5) Oil-fired.--The term `oil-fired' with regard to a
unit means, for purposes of section 424, combusting fuel oil
for more than 10 percent of the unit's total heat input, and
combusting no coal or coal-derived fuel, in any year during
1998 through 2002 or, for a unit that commenced operation on or
after January 1, 2003, a unit designed to combust oil for more
than 10 percent of the unit's total heat input and not to
combust any coal or coal-derived fuel.
``(6) Unit account.--The term `unit account' means an
account in the Allowance Tracking System under section 403(c)
established by the Administrator for any unit under 40 CFR
section 73.31 (a) and (b) (2002), amended as appropriate by the
Administrator.
``SEC. 422. APPLICABILITY.
``(a) Prohibition.--Starting January 1, 2010, it shall be unlawful
for the affected EGUs at a facility to emit a total amount of sulfur
dioxide during the year in excess of the number of sulfur dioxide
allowances held for such facility for that year by the owner or
operator of the facility.
``(b) Allowances Held.--Only sulfur dioxide allowances under
section 423 shall be held in order to meet the requirements of
subsection (a).
``SEC. 423. LIMITATIONS ON TOTAL EMISSIONS.
``For affected EGUs for 2010 and each year thereafter, the
Administrator shall allocate sulfur dioxide allowances under section
424.
``TABLE A--TOTAL SO<INF>2</INF> ALLOWANCES ALLOCATED FOR EGUs
Year SO<INF>2</INF> allowances allocated
2010............................................... 4,416,666
2011-2012.......................................... 4,416,667
2013-2017.......................................... 4,500,000
2018 and thereafter................................ 3,000,000.
``SEC. 424. EGU ALLOCATIONS.
``(a) In General.--Not later than 3 years before the commencement
date of the sulfur dioxide allowance requirement of section 422, the
Administrator shall promulgate regulations determining allocations of
sulfur dioxide allowances for affected EGUs for each year during 2010
and thereafter. The regulations shall provide that:
``(1) 93 percent of the total amount of sulfur dioxide
allowances shall be allocated to fossil-fuel-fired affected
EGUs under section 424 shall be allocated by the Administrator
to individual EGUs as follows:
``(A) For each unit account and each general
account in the Allowance Tracking System, the
Administrator shall determine the total amount of
sulfur dioxide allowances allocated under subpart 1 for
2010 and thereafter that are recorded, as of 12:00
noon, Eastern Standard time, on the date 180 days after
enactment of the Clear Skies Act of 2005. The
Administrator shall determine this amount in accordance
with 40 CFR part 73 (2002), amended as appropriate by
the Administrator, except that the Administrator shall
apply a discount rate of 7 percent for each year after
2010 to the amounts of sulfur dioxide allowances
allocated for 2011 or later.
``(B) For each unit account and each general
account in the Allowance Tracking System, the
Administrator shall determine an amount of sulfur
dioxide allowances equal to the allocation amount under
subparagraph (A) multiplied by the ratio of the amount
of sulfur dioxide allowances determined to be recorded
in that account under clause (i) to the total amount of
sulfur dioxide allowances determined to be recorded in
all unit accounts and general accounts in the Allowance
Tracking System under clause (i).
``(C) The Administrator shall allocate to each
facility's account in the Allowance Tracking System an
amount of sulfur dioxide allowances equal to the total
amount of sulfur dioxide allowances determined under
clause (ii) for the unit accounts of the units at the
facility and shall allocate to each general account in
the Allowance Tracking System the amount of sulfur
dioxide allowances determined under clause (ii) for
that general account.
``(2)(A) 7 percent of the total amount of sulfur dioxide
allowances allocated each year under section 423 shall be
allocated for units at a facility that are affected EGUs, but
did not receive sulfur dioxide allocations under subpart 1 of
this title.
``(B) The Administrator shall allocate each year for the
units under subparagraph (A) that commenced operation before
January 1, 2001, an amount of sulfur dioxide allowances
determined by:
``(i) For such units at the facility that are coal-
fired, multiplying 0.40 lb/mmBtu by the total baseline
heat input of such units and converting to tons.
``(ii) For such units at the facility that are oil-
fired, multiplying 0.20 lb/mmBtu by the total baseline
heat input of such units and converting to tons.
``(iii) For all such other units at the facility
that are not covered by clause (i) or (ii), multiplying
0.05 lb/mmBtu by the total baseline heat input of such
units and converting to tons.
``(iv) If the total of the amounts for all
facilities under clauses (i), (ii), and (iii) exceeds
the allocation amount under subparagraph (A),
multiplying the allocation amount under subparagraph
(A) by the ratio of the total of the amounts for the
facility under clauses (i), (ii), and (iii) to the
total of the amounts for all facilities under clause
(i), (ii), and (iii).
``(v) Allocating to each facility the lesser of the
total of the amounts for the facility under clauses
(i), (ii), and (iii) or, if the total of the amounts
for all facilities under clauses (i), (ii), and (iii)
exceeds the allocation amount under subparagraph (A),
the amount under clause (iv).
``(C) The Administrator shall allocate each year for units
under subparagraph (A) that commence commercial operation on or
after January l, 2001 and before January 1, 2005, an amount of
sulfur dioxide allowances determined by:
``(i) For such units at the facility that are coal-
fired or oil-fired, multiplying 0.19 lb/mmBtu by the
total baseline heat input of such units and converting
to tons.
``(ii) For all such other units at the facility
that are not covered by clause (i), multiplying .005
lb/mmBtu by the total baseline heat input of such units
and converting to tons.
``(iii) If the total of the amounts for all
facilities under clauses (i) and (ii) exceeds the
allocation amount under subparagraph (A), multiplying
the allocation amount under subparagraph (A) by the
ratio of the total of the amounts for the facility
under clauses (i) and (ii) to the total of the amounts
for all facilities under clauses (i) and (ii).
``(iv) Allocating to each facility the lesser of
the total of the amounts for the facility under clauses
(i) and (ii) or, if the total of the amounts for all
facilities under clauses (i) and (ii) exceeds the
allocation amount under subparagraph (A), the amount
under clause (iv). The Administrator shall allocate to
the facilities under paragraph (1) and this paragraph
on a pro rata basis (based on the allocations under
those paragraphs) any allowances not allocated under
this paragraph.
``(D) The Administrator shall allocate each year for units
under subparagraph (A) that commence commercial operation on or
after January 1, 2005, an amount of sulfur dioxide allowances
determined for each such unit at the facility by multiplying
the applicable National Emissions Standard under section 481 by
the applicable ``baseline heat input,'' considering fuel and
combustion type, as defined in section 402(5)(B) and converting
to tons.
``(E) In the event that allocation demand exceeds supply,
the Administrator shall allocate allowances under subparagraph
(A) giving first priority to units qualifying under
subparagraph (B), second priority to units qualifying under
subparagraph (C), and third priority to units qualifying under
subparagraph (D). Allowances allocated under subparagraph (D)
shall be allocated to units on a first come basis determined by
date of unit commencement of construction, provided that such
unit actually commences operation. As such, allocations to
units under sub-paragraph (D) will not be reduced as a result
of new units commencing commercial operation.
``(b) Failure To Promulgate.--
``(1) Annual notice.--For each year 2010 and thereafter, if
the Administrator has not promulgated regulations, determining
allocations under subsection (a), each affected EGU shall
comply with section 422 by providing annual notice to the
permitting authority. Such notice shall indicate the amount of
allowances the affected EGU believes it has for the relevant
year and the amount of sulfur dioxide emissions for such year.
The amount of sulfur dioxide emissions shall be determined
using reasonable industry accepted methods unless the
Administrator has promulgated applicable monitoring and
alternative monitoring requirements.
``(2) Reconciliation.--Upon promulgation of regulations under
subsection (a) determining the allocations for 2010 and thereafter, and
promulgating regulations under section 403(b) providing for the
transfer of sulfur dioxides and section 403(c) establishing an
Allowance Transfer System for sulfur dioxide allowances, each unit's
emissions shall be compared to and reconciled to its actual allocations
under the promulgated regulations. Each unit will have nine (9) months
to purchase any allowance shortfall through allowances purchased from
other allowance holders or through direct sale.
``SEC. 425. DISPOSITION OF SULFUR DIOXIDE ALLOWANCES ALLOCATED UNDER
SUBPART 1.
``(a) Removal From Accounts.--After allocating allowances under
section 424(a)(1), the Administrator shall remove from the unit
accounts and general accounts in the Allowance Tracking System under
section 403(c) and from the Special Allowances Reserve under section
418 all sulfur dioxide allowances allocated or deposited under subpart
1 for 2010 or later.
``(b) Regulations.--The Administrator shall promulgate regulations
as necessary to assure that the requirement to hold allowances under
section 422 may be met using sulfur dioxide allowances allocated under
subpart 1 for 1995 through 2009. No part of this Act shall be construed
to prevent use of unused pre-2010 allowances to meet the requirements
of section 422.
``SEC. 426. INCENTIVES FOR SULFUR DIOXIDE EMISSION CONTROL TECHNOLOGY.
``(a) Reserve.--The Administrator shall establish a reserve of
250,000 sulfur dioxide allowances comprising 83,334 sulfur dioxide
allowances for 2010, 83,333 sulfur dioxide allowances for 2011, and
83,333 sulfur dioxide allowances for 2012.
``(b) Application.--Not later than 18 months after the enactment of
the Clear Skies Act of 2005, an owner or operator of an affected EGU
that commenced operation before 2001 and that during 2001 combusted
Eastern bituminous may submit an application to the Administrator for
sulfur dioxide allowances from the reserve under subsection (a). The
application shall include each of the following:
``(1) A statement that the owner or operator will install
and commence commercial operation of specified sulfur dioxide
control technology at the unit within 24 months after approval
of the application under subsection (c) if the unit is
allocated the sulfur dioxide allowances requested under
paragraph (4). The owner or operator shall provide description
of the control technology.
``(2) A statement that, during the period starting with the
commencement of operation of sulfur dioxide technology under
paragraph (1) through 2009, the unit will combust Eastern
bituminous at a percentage of the unit's total heat input equal
to or exceeding the percentage of total heat input combusted by
the unit in 2001 if the unit is allocated the sulfur dioxide
allowances requested under paragraph (4).
``(3) A demonstration that the unit will achieve, while
combusting fuel in accordance with paragraph (2) and operating
the sulfur dioxide control technology specified in paragraph
(1), a specified tonnage of sulfur dioxide emission reductions
during the period starting with the commencement of operation
of sulfur dioxide control technology under subparagraph (1)
through 2009. The tonnage of emission reductions shall be the
difference between emissions monitored at a location at the
unit upstream of the control technology described in paragraph
(1) and emissions monitored at a location at the unit
downstream of such control technology, while the unit is
combusting fuel in accordance with paragraph (2).
``(4) A request that the Administrator allocate for the
unit a specified number of sulfur dioxide allowances from the
reserve under subsection (a) for the period starting with the
commencement of operation of the sulfur dioxide technology
under paragraph (1) through 2009.
``(5) A statement of the ratio of the number of sulfur
dioxide allowances requested under paragraph (4) to the tonnage
of sulfur dioxide emissions reductions under paragraph (3).
``(c) Approval or Disapproval.--By order subject to notice and
opportunity for comment, the Administrator shall--
``(1) determine whether each application meets the
requirements of subsection (b);
``(2) list the applications meeting the requirements of
subsection (b) and their respective allowance-to-emission-
reduction ratios under paragraph (b)(5) in order, from lowest
to highest, of such ratios;
``(3) for each application listed under paragraph (2),
multiply the amount of sulfur dioxide emission reductions
requested by each allowance-to-emission-reduction ratio on the
list that equals or is less than the ratio for the application;
``(4) sum, for each allowance-to-emission-reduction ratio
in the list under paragraph (2), the amounts of sulfur dioxide
allowances determined under paragraph (3);
``(5) based on the calculations in paragraph (4), determine
which allowance-to-emission-reduction ratio on the list under
paragraph (2) results in the highest total amount of allowances
that does not exceed 250,000 allowances; and
``(6) approve each application listed under paragraph (2)
with a ratio equal to or less than the allowance-to-emission-
reduction ratio determined under paragraph (5) and disapprove
all the other applications.
``(d) Monitoring.--An owner or operator whose application is
approved under subsection (c) shall install and operate a CEMS for
monitoring sulfur dioxide and to quality assure the data. The
installation of the CEMS and the quality assurance of data shall be in
accordance with subparagraph (a)(2)(B) and subsections (c) through (e)
of section 405, except that, where two or more units utilize a single
stack, and one or more units are not subject to such standards,
separate monitoring shall be required for each unit.
``(e) Allocations.--Not later than 6 months after the commencement
date of the sulfur dioxide allowance requirement of section 422, for
the units for which applications are approved under subsection (c), the
Administrator shall allocate sulfur dioxide allowances as follows:
``(1) For each unit, the Administrator shall multiply the
allowance-to-emission-reduction ratio of the last application
that the Administrator approved under subsection (c) by the
lesser of--
``(A) the total tonnage of sulfur dioxide emissions
reductions achieved by the unit, during the period
starting with the commencement of operation of the
sulfur dioxide control technology under subparagraph
(b)(1) through 2009, through use of such control
technology; or
``(B) the tonnage of sulfur dioxide emission
reductions under paragraph (b)(3).
``(2) If the total amount of sulfur dioxide allowances
determined for all units under paragraph (1) exceeds 250,000
sulfur dioxide allowances, the Administrator shall multiply
250,000 sulfur dioxide allowances by the ratio of the amount of
sulfur dioxide allowances determined for each unit under
paragraph (1) to the total amount of sulfur dioxide allowances
determined for all units under paragraph (1).
``(3) The Administrator shall allocate to each unit the
lesser of the amount determined for that unit under paragraph
(1) or, if the total amount of sulfur dioxide allowances
determined for all units under paragraph (1) exceeds 250,000
sulfur dioxide allowances, under paragraph (2). The
Administrator shall allocate to the facilities under section
424 paragraphs (1) and (2) on a pro rata basis (based on the
allocations under those paragraphs) any unallocated allowances
under this paragraph.
``Subpart 3--Western Regional Air Partnership
``SEC. 431. DEFINITIONS.
``For purposes of this subpart--
``(1) Adjusted baseline heat input.--The term `adjusted
baseline heat input' means the average annual heat input used
by a unit during the three years in which the unit had the
highest heat input for the period from the eighth through the
fourth year before the first covered year.
``(A) Notwithstanding paragraph (1), if a unit
commences operation during such period and--
``(i) on or after January 1 of the fifth
year before the first covered year, then
`adjusted baseline heat input' shall mean the
average annual heat input used by the unit
during the fifth and fourth years before the
first covered year; and
``(ii) on or after January 1 of the fourth
year before the first covered year, then
`adjusted baseline heat input' shall mean the
annual heat input used by the unit during the
fourth year before the first covered year.
``(B) A unit's heat input for a year shall be the
heat input--
``(i) required to be reported under section
405 for the unit, if the unit was required to
report heat input during the year under that
section;
``(ii) reported to the Energy Information
Administrator for the unit, if the unit was not
required to report heat input under section
405;
``(iii) based on data for the unit reported
to the WRAP State where the unit is located as
required by State law, if the unit was not
required to report heat input during the year
under section 405 and did not report to the
Energy Information Administration; or
``(iv) based on fuel use and fuel heat
content data for the unit from fuel purchase or
use records, if the unit was not required to
report heat input during the year under section
405 and did not report to the Energy
Information Administration and the WRAP State.
``(2) Affected egu.--The term `affected EGU' means an
affected EGU under subpart 2 that is in a WRAP State and that--
``(A) in 2000, emitted 100 tons or more of sulfur
dioxide and was used to produce electricity for sale;
or
``(B) in any year after 2000, emits 100 tons or
more of sulfur dioxide and is used to produce
electricity for sale.
``(3) Coal-fired.--The term `coal-fired' with regard to a
unit means, for purposes of section 434, a unit combusting coal
or any coal-derived fuel alone or in combination with any
amount of any other fuel in any year during the period from the
eighth through the fourth year before the first covered year.
``(4) Covered year.--The term `covered year' means--
``(A)(i) the third year after the year 2018 or
later when the total annual sulfur dioxide emissions of
all affected EGUs in the WRAP States first exceed
271,000 tons; or
``(ii) the third year after the year 2013 or later
when the Administrator determines by regulation that
the total annual sulfur dioxide emissions of all
affected EGUs in the WRAP States are reasonably
projected to exceed 271,000 tons in 2018 or any year
thereafter. The Administrator may make such
determination only if all the WRAP States submit to the
Administrator a petition requesting that the
Administrator issue such determination and make all
affected EGUs in the WRAP States subject to the
requirements of sections 432 through 434; and
``(B) each year after the `covered year' under
subparagraph (A).
``(5) Oil-fired.--The term `oil-fired' with regard to a
unit means, for purposes of section 434, a unit combusting fuel
oil for more than 10 percent of the unit's total heat input,
and combusting no coal or coal-derived fuel, and any year
during the period from the eighth through the fourth year
before the first covered year.
``(6) WRAP state.--The term `WRAP State' means Arizona,
California, Colorado, Idaho, Nevada, New Mexico, Oregon, Utah,
and Wyoming.
``SEC. 432. APPLICABILITY.
``(a) Prohibition.--Starting January 1 of the first covered year,
it shall be unlawful for the affected EGUs at a facility to emit a
total amount of sulfur dioxide during the year in excess of the number
of sulfur dioxide allowances held for such facility for that year by
the owner or operator of the facility.
``(b) Allowances Held.--Only sulfur dioxide allowances under
section 433 shall be held in order to meet the requirements of
subsection (a).
``SEC. 433. LIMITATIONS ON TOTAL EMISSIONS.
For affected EGUs, the total amount of sulfur dioxide allowances
that the Administrator shall allocate for each covered year under
section 434 shall equal 271,000 tons.
``SEC. 434. EGU ALLOCATIONS.
``(a) In General.--By January 1 of the year before the first
covered year, the Administrator shall promulgate regulations
determining, for each covered year, the allocations of sulfur dioxide
allowances for the units at a facility that are affected EGUs as of
December 31 of the fourth year before the covered year by--
``(1) for such units at the facility that are coal-fired,
multiplying 0.40 lb/mmBtu by the total adjusted baseline heat
input of such units and converting to tons;
``(2) for such units at the facility that are oil-fired,
multiplying 0.20 lb/mmBtu by the total adjusted baseline heat
input of such units and converting to tons;
``(3) for all such other units at the facility that are not
covered by paragraph (1) or (2) multiplying 0.05 lb/mmBtu by
the total adjusted baseline heat input of such units and
converting to tons; and
``(4) multiplying by 0.95 the allocation amount under
section 433 by the ratio of the total of the amounts for the
facility under paragraphs (1), (2), and (3) to the total of the
amounts for all facilities under paragraphs (1), (2), and (3);
and
``(5)(A) 5 percent of the total amount of sulfur dioxide
allowances allocated each year under section 433 shall be
allocated for units at a facility that are affected EGUs, but
did not receive sulfur dioxide allocations under paragraph (4).
These units shall be allocated allowances in accordance with
paragraphs (1), (2), and (3).
``(B) Allowances allocated under subparagraph (A) shall be
allocated to units on a first come basis determined by date of
unit commencement of construction, provided that such unit
actually commences operation. As such, allocations to units
under paragraph (A) will not be reduced as a result of new
units commencing commercial operation.
``(C) Allowances not allocated under subparagraph (B) shall
be allocated to units in paragraphs (A) and (B) on a pro rata
basis.
``(b) Failure To Promulgate.--
``(1) In general.--For each year 2010 and thereafter, if
the Administrator has not promulgated regulations, determining
allocations under paragraph (a), each affected EGU shall comply
with section 422 by provided annual notice to the permitting
authority. Such notice shall indicate the amount of allowances
the affected EGU believes it has for the relevant year and the
amount of sulfur dioxide emissions for such year. The amount of
sulfur dioxide emissions shall be determined using reasonable
industry accepted methods unless the Administrator has
promulgated applicable monitoring and alternative monitoring
requirements.
``(2) Reconciliation.--Upon promulgation of regulations
under subsection (a) determining the allocations for 2010 and
thereafter, and promulgating regulations under section 403(b)
providing for the transfer of sulfur dioxides and section
403(c) establishing an Allowance Transfer System for sulfur
dioxide allowances, each unit's emissions shall be compared to
and reconciled to its actual allocations under the promulgated
regulations. Each unit will have nine (9) months to purchase
any allowance shortfall through allowances purchased from other
allowance holders or through direct sale.
``PART C--NITROGEN OXIDES CLEAR SKIES EMISSION REDUCTIONS
``Subpart 1--Acid Rain Program
``SEC. 441. NITROGEN OXIDES EMISSION REDUCTION PROGRAM.
``(a) Applicability.--On the date that a coal-fired utility unit
becomes an affected unit pursuant to sections 413 or 414, or on the
date a unit subject to the provisions of section 413(d), must meet the
NO<INF>X</INF> 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) In general.--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 NO<INF>X</INF> burner technology. The Administrator
shall implement this paragraph under 40 CFR part 76.5 (2002).
The maximum allowable emission rates are as follows:
``(A) for tangentially fired boilers, 0.45 lb/
mmBtu; and
``(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) Utility boilers.--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;
``(C) units applying cell burner technology; and
``(D) all other types of utility boilers.
``(3) Basis of rates.--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). 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 NO<INF>X</INF> burned technology is available: Provided,
That, no unit that is an affected unit pursuant to section 413
and that is subject to the requirements of subsection (b)(1),
shall be subject to the revised emission limitations, if any.
The Administrator shall implement that paragraph under 40 CFR
parts 76.6 and 76.7 (2002).
``(c) Alternative Emission Limitations.--(1) 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)
upon a determination that--
``(A) a unit subject to subsection (b)(1) cannot meet the
applicable limitation using low NO<INF>X</INF> burner
technology; or
``(B) a unit subject to subsection (b)(2) cannot meet the
applicable rate using the technology on which the Administrator
based the applicable emission limitation.
``(2) Eligibility for alternative emission limitations.--The
permitting authority shall base such determination upon a reasonable
showing satisfactory to the permitting authority, in accordance with
regulations established by the Administrator, that the owner or
operator--
``(A) has properly installed appropriate control equipment
designed to meet the applicable emission rate;
``(B) has properly operated such equipment for a period of
15 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
``(C) 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 404 and title V--
``(i) that permits the unit during the
demonstration period referred to in subparagraph (B),
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 subparagraphs
(B) and (C).
``(3) Additional control technology.--Units subject to subsection
(b)(1) for which an alternative emission limitation is established
shall not be required to install any additional control technology
beyond low NO<INF>X</INF> burners. Nothing in this section shall
preclude an owner or operator from installing and operating an
alternative NO<INF>X</INF> control technology capable of achieving the
applicable emission limitation. The Administrator shall implement this
subsection under 40 CFR part 76 (2002), amended as appropriate by the
Administrator.
``(d) Emissions Averaging.--
``(1) Alernative contemporaneous emission limitations.--In
lieu of complying with the applicable emission limitations
under subsection (b)(1), (2), or (c), 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--
``(A) 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
``(B) 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).
``(2) Operating permits.--If the permitting authority
determines, in accordance with regulations issued by the
Administrator that the conditions in paragraph (1) can be met,
the permitting authority shall issue operating permits for such
units, in accordance with section 404 and title V, 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. The Administrator shall
implement this subsection under 40 CFR part 76 (2002), amended
as appropriate by the Administrator.
``SEC. 442. TERMINATION.
``Starting January 1, 2008, the owner or operator of affected units
and affected facilities under section 441 shall no longer be subject to
the requirements of that section.
``Subpart 2--Clear Skies Nitrogen Oxides Allowance Program
``SEC. 451. DEFINITIONS.
``For purposes of this subpart:
``(1) Affected egu.--The term `affected EGU' means--
``(A) for a unit serving a generator before the
date of enactment of the Clear Skies Act of 2005, a
unit in a State serving a generator with a nameplate
capacity of greater than 25 megawatts that produced or
produces electricity for sale during 2002 or any year
thereafter, except for a cogeneration unit that meets
the criteria for qualifying for a cogeneration
facilities codified in section 292.205 of title 18 of
the Code of Federal Regulations as issued on April 1,
2002 during 2002 and each year thereafter; and
``(B) for a unit commencing service of a generator
on or after the date of enactment of the Clear Skies
Act of 2005, a unit in a State serving a generator that
produces electricity for sale during any year starting
with the year the unit commences service of a
generator, except for a gas-fired unit serving one or
more generators with total nameplate capacity of 25
megawatts or less, or a cogeneration unit that meets
the criteria for qualifying for a cogeneration
facilities codified in section 292.205 of title 18 of
the Code of Federal Regulations as issued on April 1,
2002, during each year starting with the unit commences
service of a generator.
``(C) Exclusion.--Notwithstanding paragraphs (A)
and (B), the term `affected EGU' does not include a
solid waste incineration unit subject to section 129 or
a unit for the treatment, storage, or disposal of
hazardous waste subject to section 3005 of the Solid
Waste Disposal Act.
``(2) Adjusted baseline heat input.--The term `adjusted
baseline heat input' with regard to a unit means, for purposes
of allocating nitrogen oxides allowances in a particular year
under this subpart, the units baseline multiplied by--
``(A) 1.0 for affected coal-fired units for 2008
and each year thereafter;
``(B) 0.55 for affected oil- and gas-fired units
located in a Zone 1 State for years 2008 through 2017
inclusive;
``(C) 0.8 for affected oil- and gas-fired units
located in a Zone 1 State for 2018 and each year
thereafter; and
``(D) 0.4 for affected oil- and gas-fired units
located in a Zone 2 State for 2008 and each year
thereafter.
``(3) Allowable nitrogen oxides emissions rate.--The term
`allowable nitrogen oxides emissions rate' means the most
stringent Federal or State emissions limitation for nitrogen
oxides that applies to the unit as of date of enactment of this
subpart. If 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 to establish the
allowable rate. Such limitation shall not include any
requirement to hold nitrogen oxides allowances under the
Federal NO<INF>X</INF> Budget Trading Program as codified at 40
CFR part 97 (2002), or any State program adopted to meet the
requirements of the NO<INF>X</INF> SIP Call as codified at 40
CFR 51.121 (2002).
``(4) Zone 1 state.--The term `Zone 1 State' means Alabama,
Arkansas, Connecticut, Delaware, the District of Columbia,
Florida, Georgia, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Maine, Maryland, Massachusetts, Michigan, Mississippi, the fine
grid portion (as defined in section 51.121 of title 40, Code of
Federal Regulations (as in effect for 2002)) of Missouri, New
Hampshire, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas
east of Interstate 35, Vermont, Virginia, West Virginia, and
Wisconsin.
``(5) Zone 2 state.--The term `Zone 2 State' means Alaska,
American Samoa, Arizona, California, Colorado, the Commonwealth
of the Northern Mariana Islands, the Commonwealth of Puerto
Rico, Guam, Hawaii, Idaho, Kansas, Minnesota, the coarse grid
portion (as defined in section 51.121 of title 40, Code of
Federal Regulations (as in effect for 2002)) of Missouri,
Montana, Nebraska, North Dakota, New Mexico, Nevada, Oklahoma,
Oregon, South Dakota, Texas west of Interstate 35, Utah, the
Virgin Islands, Washington, and Wyoming.
``SEC. 452. APPLICABILITY.
``(a) Zone 1 Prohibition.--
(1) In general.--Starting January 1, 2008, it shall be
unlawful for the affected EGUs at a facility in a Zone 1 State
to emit a total amount of nitrogen oxides during a year in
excess of the number of nitrogen oxides allowances held for
such facility for that year by the owner or operator of the
facility.
``(2) Limitation.--Only nitrogen oxides allowances under
section 453(a) shall be held in order to meet the requirements
of paragraph (1), except as provided under section 465.
``(b) Zone 2 Prohibition.--
(1) In general.--Starting January 1, 2008, it shall be
unlawful for the affected EGUs at a facility in a Zone 2 State
to emit a total amount of nitrogen oxides during a year in
excess of the number of nitrogen oxides allowances held for
such facility for that year by the owner or operator of the
facility.
``(2) Limitation.--Only nitrogen oxides allowances under section
453(b) shall be held in order to meet the requirements of paragraph
(1).
``SEC. 453. LIMITATIONS ON TOTAL EMISSIONS.
``(a) Zone 1 Allocations.--For affected EGUs in the Zone 1 States
for 2008 and each year thereafter, the Administrator shall allocate
nitrogen oxides allowances under section 454(a) as specified in table
A.
``TABLE A--TOTAL NO<INF>X</INF> ALLOWANCES ALLOCATED FOR EGUS IN ZONE 1
Year NO<INF>X</INF> allowances allocated
2008-2017.......................................... 1,473,603
2018 and thereafter................................ 1,073,603
``(b) Zone 2 Allocations.--For affected EGUs in the Zone 2 States
for 2008 and each year thereafter, the Administrator shall allocate
nitrogen oxides allowances under section 454(b) as specified in table
B.
``TABLE B--TOTAL NO<INF>X</INF> ALLOWANCES ALLOCATED FOR EGUS IN ZONE 2
Year NO<INF>X</INF> allowance allocated
2008 and thereafter................................ 714,794
``SEC. 454. EGU ALLOCATIONS.
``(a) EGU Allocations in the Zone 1 States.--
``(1) EPA regulations.--Not later than 18 months before the
date on which the nitrogen oxides allowance requirement under
section 452 takes effect, the Administrator shall promulgate
regulations determining the allocation of nitrogen oxide
allowances for 2008 and each subsequent year for units at a
facility in a Zone 1 State that are affected EGUs as of the
date of enactment of this section.
``(2) Formula for allocation.--
``(A) In general.--Subject to subparagraph (B) and
paragraph (3), the regulations shall specify that the
allocation of nitrogen oxide allowances for each unit
referred to in paragraph (1) for each year shall be the
product obtained by multiplying--
``(i) the product of 0.95 and the
allocation amount under section 453(a); and
``(ii) the ratio that--
``(I) the total quantity of the
adjusted baseline heat input of the
units at the facility; bears to
``(II) the total quantity of
adjusted baseline heat input to all
affected EGUs in the Zone 1 States; and
``(B) Maximum allocation.--Notwithstanding
subparagraph (A) and paragraph (3), no unit shall
receive an allocation in excess of the product obtained
by multiplying--
``(i) the baseline heat input of the unit;
and
``(ii) the quotient obtained by dividing
the allowable nitrogen oxides emissions rate of
the unit by 2000.
``(3) Distribution of remaining allowances.--
``(A) In general.--Subject to paragraph (2)(B), any
nitrogen oxide allowances remaining after the
allocation of allowances under paragraph (2) shall be
distributed on a pro rata basis among the units that
received nitrogen oxide allowances under that
paragraph.
``(B) Additional remaining allowances.--Allowances
remaining after each iteration of the calculation under
subparagraph (A) as a result of the limitation under
paragraph (2)(B) shall be allocated in accordance with
subparagraph (A).
``(4) Set-aside for new units.--
``(A) In general.--5 percent of the total amount of
nitrogen oxide allowances allocated each year under
section 453 shall be allocated for units at a facility
that are affected EGUs, but did not receive nitrogen
oxide allocations under paragraph (2).
``(B) Formula for allocation.--
``(i) In general.--Subject to clause (ii)
and subparagraph (E), the regulations
promulgated under paragraph (1) shall specify
that the allocation of nitrogen oxide
allowances for each unit referred to in
subparagraph (A) for each year shall be the
product obtained by multiplying--
``(I) the product of 0.05 and the
allocation amount under section 453(a);
and
``(II) the ratio that--
``(aa) the total quantity
of the adjusted baseline heat
input of the units at the
facility; bears to
``(bb) the total quantity
of adjusted baseline heat input
to all affected EGUs in the
Zone 1 States, including those
affected EGUs that receive
allowances under paragraph (2).
``(ii) Additional allowances.--
Notwithstanding clause (i) and subparagraph
(E), no unit shall receive an allocation under
this paragraph in excess of the product
obtained by multiplying--
``(I) the baseline heat input of
the unit; and
``(II) the quotient obtained by
dividing the allowable nitrogen oxides
emissions rate of the unit by 2000.
``(C) Method of allocation.--Allowances allocated
under this paragraph shall be allocated to each unit on
a first-come basis determined by the date on which the
unit commences operation.
``(D) No reduction in allocations.--Allocations to
units under this paragraph shall not be reduced as a
result of new units commencing commercial operation.
``(E) Distribution of remaining allowances.--Any
nitrogen oxide allowances remaining after the
allocation of allowances under subparagraph (B) shall
be distributed on a pro rata basis among the units that
received nitrogen oxide allowances under that
subparagraph and paragraphs (2) and (3).
``(5) Failure to promulgate regulations.--For calendar year
2008 and each calendar year thereafter, if the Administrator
has not promulgated the regulations determining the allocations
under this subsection--
``(A) each affected unit shall comply with section
452 by providing an annual notice to the permitting
authority that indicates the amount of allowances the
affected unit believes the affected unit has for the
relevant year (including the quantity of nitrogen oxide
emissions of the affected unit for that year);
``(B) the amount of nitrogen oxide emissions of an
affected unit described in subparagraph (A) shall be
determined using reasonable industry accepted methods
unless the Administrator has promulgated applicable
monitoring and alternative monitoring requirements; and
``(C) upon promulgation of regulations under this
subsection for Zone 1 determining the allocations for
2008 and each year thereafter, and promulgation of
regulations under section 403(b) providing for the
transfer of nitrogen oxides and regulations under
section 403(c) establishing an Allowance Transfer
System for nitrogen oxide allowances--
``(i) the emissions of each unit shall be
compared to and reconciled with actual
allocations to the unit under the regulations;
and
``(ii) each unit shall have not more than
270 days to submit allowances to the
Administrator, without recompense, for any
allowance shortfall (including submitted
allowances obtained and held by any mechanism
consistent with this Act, including direct
sale).
``(b) EGU Allocations in the Zone 2 States.--
``(1) EPA regulations.--Not later than 18 months before the
date on which the nitrogen oxides allowance requirement under
section 452 takes effect, the Administrator shall promulgate
regulations determining the allocation of nitrogen oxide
allowances for 2008 and each subsequent year for units at a
facility in a Zone 2 State that are affected EGUs as of the
date of enactment of this section.
``(2) Formula for allocation.--
``(A) In general.--Subject to subparagraph (B) and
paragraph (3), the regulations shall specify that the
allocation of nitrogen oxide allowances for each unit
referred to in paragraph (1) for each year shall be the
product obtained by multiplying--
``(i) the product of 0.95 and the
allocation amount under section 453(b); and
``(ii) the ratio that--
``(I) the total quantity of the
adjusted baseline heat input of the
units at the facility; bears to
``(II) the total quantity of
adjusted baseline heat input to all
affected EGUs in the Zone 2 States.
``(B) Maximum allocation.--Notwithstanding
subparagraph (A) and paragraph (3), no unit shall
receive an allocation in excess of the product obtained
by multiplying--
``(i) the baseline heat input of the unit;
and
``(ii) the quotient obtained by dividing
the allowable nitrogen oxides emissions rate of
the unit by 2000.
``(3) Distribution of remaining allowances.--
``(A) In general.--Subject to paragraph (2)(B), any
nitrogen oxide allowances remaining after the
allocation of allowances under paragraph (2) shall be
distributed on a pro rata basis among the units that
received nitrogen oxide allowances under that
paragraph.
``(B) Additional remaining allowances.--Allowances
remaining after each iteration of the calculation under
subparagraph (A) as a result of the limitation under
paragraph (2)(B) shall be allocated in accordance with
subparagraph (A).
``(4) Set-aside for new units.--
``(A) In general.--5 percent of the total amount of
nitrogen oxide allowances allocated each year under
section 453 shall be allocated for units at a facility
that are affected EGUs, but did not receive nitrogen
oxide allocations under paragraph (2).
``(B) Formula for allocation.--
``(i) In general.--Subject to clause (ii)
and subparagraph (E), the regulations
promulgated under paragraph (1) shall specify
that the allocation of nitrogen oxide
allowances for each unit referred to in
subparagraph (A) for each year shall be the
product obtained by multiplying--
``(I) the product of 0.05 and the
allocation amount under section 453(a);
and
``(II) the ratio that--
``(aa) the total quantity
of the adjusted baseline heat
input of the units at the
facility; bears to
``(bb) the total quantity
of adjusted baseline heat input
to all affected EGUs in the
Zone 2 States, including those
affected EGUs that receive
allowances under paragraph (2).
``(ii) Additional allowances.--
Notwithstanding clause (i) and subparagraph
(E), no unit shall receive an allocation under
this paragraph in excess of the product
obtained by multiplying--
``(I) the baseline heat input of
the unit; and
``(II) the quotient obtained by
dividing the allowable nitrogen oxides
emissions rate of the unit by 2000.
``(C) Method of allocation.--Allowances allocated
under this paragraph shall be allocated to each unit on
a first-come basis determined by the date on which the
unit commences operation.
``(D) No reduction in allocations.--Allocations to
units under this paragraph shall not be reduced as a
result of new units commencing commercial operation.
``(E) Distribution of remaining allowances.--Any
nitrogen oxide allowances remaining after the
allocation of allowances under subparagraph (B) shall
be distributed on a pro rata basis among the units that
received nitrogen oxide allowances under that
subparagraph and paragraphs (2) and (3).
``(5) Failure to promulgate regulations.--For calendar year
2008 and each calendar year thereafter, if the Administrator
has not promulgated the regulations determining the allocations
under this subsection--
``(A) each affected unit shall comply with section
452 by providing an annual notice to the permitting
authority that indicates the amount of allowances the
affected unit believes the affected unit has for the
relevant year (including the quantity of nitrogen oxide
emissions of the affected unit for that year);
``(B) the amount of nitrogen oxide emissions of an
affected unit described in subparagraph (A) shall be
determined using reasonable industry accepted methods
unless the Administrator has promulgated applicable
monitoring and alternative monitoring requirements; and
``(C) upon promulgation of regulations under this
subsection for Zone 2 determining the allocations for
2008 and each year thereafter, and promulgation of
regulations under section 403(b) providing for the
transfer of nitrogen oxides and regulations under
section 403(c) establishing an Allowance Transfer
System for nitrogen oxide allowances--
``(i) the emissions of each unit shall be
compared to and reconciled with actual
allocations to the unit under the regulations;
and
``(ii) each unit shall have not more than
270 days to submit allowances to the
Administrator, without recompense, for any
allowance shortfall (including submitted
allowances obtained and held by any mechanism
consistent with this Act, including direct
sale).
``SEC. 455 NITROGEN OXIDES EARLY ACTION REDUCTION CREDITS.
``(a) Credits.--Except as provided in subsection (e), the
Administrator shall promulgate regulations within 18 months authorizing
the allocation of nitrogen oxides allowances to units designated under
this section that install or modify pollution control equipment or
combustion technology improvements identified in such regulations after
the date of enactment of this section and prior to January 1, 2008.
``(b) Emissions Reductions.--No allowances shall be allocated under
this section for emissions reductions that are--
``(1) attributable to pollution control equipment or
combustion technology improvements that were operational at any
time prior to the date of enactment of this section;
``(2) attributable to fuel switching;
``(3) required under any Federal or State regulation for
the applicable year; or
``(4) made by a unit, subject to--
``(A) subpart 1 of part C, that are necessary for
compliance with the limitation on the Btu-weighted
average annual emission rate of the unit and 1 or more
other units under section 441(d); or
``(B) the requirements in the applicable
implementation plan of a NO<INF>X</INF> SIP Call State
(as defined in section 461(3)) that meet the
requirements under sections 51.121 and 51.122 of title
40, Code of Federal Regulations (as in effect for
calendar year 2004) during the period beginning on May
1 and ending on September 30.
``(c) Allocation.--The allowances allocated to any unit under this
section shall be in addition to the allowances allocated under section
454 and shall be allocated in an amount equal to one allowance of
nitrogen oxides for each 1.05 tons of reduction in emissions of
nitrogen oxides achieved by the pollution control equipment or
combustion technology improvements starting with the year in which the
equipment or improvement is implemented. The early compliance reduction
allowances available under this section shall be used and tradable in
the same manner as allowances under section 454.
``(d) Early Compliance Allowance Credit.--The Administrator shall
promulgate regulations as necessary to ensure affected units receive
early compliance allowance credit. Early compliance allowances shall be
allocated at the end of an early compliance year. Should the
Administrator fail to promulgate allocation regulations by the end of a
given year, early compliance allowances for each year shall be
allocated at the earliest possible time after allocation regulations
are promulgated.
``(e) Exception.--This section shall not apply to reductions that
are--
``(1) made during the period beginning on May 1 and ending
on September 30 of a year by units that are subject to an
applicable implementation plan for a NO<INF>X</INF> SIP Call
State (as defined in section 461(3)) required under section
51.121 of title 40, Code of Federal Regulations (as in effect
for calendar year 2004); or
``(2) necessary to comply with subpart 1 of part C for the
applicable year.
``Subpart 3--Ozone Season NO<INF>X</INF> Budget Program
``SEC. 461. DEFINITIONS.
``For purposes of this subpart:
``(1) Ozone season.--The term `ozone season' means--
``(A) with regard to Connecticut, Delaware, the
District of Columbia, Maryland, Massachusetts, New
Jersey, New York, Pennsylvania, and Rhode Island, the
period May 1 through September 30 for each year
starting in 2003; and
``(B) with regard to all other States, the period
May 1 through September 30, for each year starting in
2004 and thereafter.
``(2) Non-ozone season.--The term `non-ozone season'
means--
``(A) with regard to Connecticut, Delaware, the
District of Columbia, Maryland, Massachusetts, New
Jersey, New York, Pennsylvania, and Rhode Island, the
period October 1 through April 30; and
``(B) with regard to all other States, the period
October 1, 2003, through May 29, 2004 and the period
October 1 through April 30 beginning in the year 2004
and for each year thereafter.
``(3) NO<INF>X </INF>sip call state.--The term
`NO<INF>X</INF> SIP Call State' means Connecticut, Delaware,
the District of Columbia, Illinois, Indiana, Kentucky,
Maryland, Massachusetts, New Jersey, New York, North Carolina,
Ohio, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Virginia, and West Virginia and the fine grid portions of
Alabama, Georgia, Michigan, and Missouri.
``(4) Fine grid portions of alabama, georgia, michigan, and
missouri.--The term `fine grid portions of Alabama, Georgia,
Michigan, and Missouri' means the areas in Alabama, Georgia,
Michigan, and Missouri subject to 40 CFR part 51.121 (2001).
``SEC. 462. GENERAL PROVISIONS.
``The provisions of sections 402 through 406 shall not apply to
this subpart.
``SEC. 463. APPLICABLE IMPLEMENTATION PLAN.
``(a) SIPS.--Except as provided in subsection (b), the applicable
implementation plan for each NO<INF>X</INF> SIP Call State shall be
consistent with the requirements, including the NO<INF>X</INF> SIP Call
State's nitrogen oxides budget and compliance supplement pool, in
sections 51.121 and 51.122 of title 40, Code of Federal Regulations (as
in effect for calendar year 2004).
``(b) Requirements.--Notwithstanding any provision to the contrary
in section 51.121 or 51.122 of title 40, Code of Federal Regulations
(as in effect for calendar year 2004):
``(1) Implementation plan.--The applicable implementation
plan for each NO<INF>X</INF> SIP Call State shall require full
implementation of the required emission control measures
starting no later than the first ozone season.
``(2) Exemption.--Starting January 1, 2008--
``(A) the owners and operators of a boiler,
combustion turbine, or integrated gasification combined
cycle plant subject to emission reduction requirements
or limitations under part B, C, or D shall no longer be
subject to the requirements in a NO<INF>X</INF> SIP
Call State's applicable implementation plan that meet
the requirements of subsection (a) and paragraph (1);
and
``(B) notwithstanding subparagraph (A), if the
Administrator determines, by December 31, 2007, that a
NO<INF>X</INF> SIP Call State's applicable
implementation plan meets the requirements of
subsection (a) and paragraph (1), such applicable
implementation plan shall be deemed to continue to meet
such requirements.
``(c) Savings Provision.--Nothing in this section or section 464
shall preclude or deny the right of any State or political subdivision
thereof to adopt or enforce any regulation, requirement, limitation, or
standard, relating to a boiler, combustion turbine, or integrated
gasification combined cycle plant subject to emission reduction
requirements or limitations under part B, C, or D, that is more
stringent than a regulation, requirement, limitation, or standard in
effect under this section or under any other provision of this Act.
``SEC. 464. TERMINATION OF FEDERAL ADMINISTRATION OF NO<INF>X</INF>
TRADING PROGRAM FOR EGUS.
``Starting January 1, 2008, with regard to any boiler, combustion
turbine, or integrated gasification combined cycle plant subject to
emission reduction requirements or limitations under part B, C, or D,
the Administrator shall not administer any nitrogen oxides trading
program included in any NO<INF>X</INF> SIP Call State's applicable
implementation plan and meeting the requirements of section 463(a) and
(b)(1).
``SEC. 465. CARRYFORWARD OF PRE-2008 NITROGEN OXIDES ALLOWANCES.
``The Administrator shall promulgate regulations as necessary to
assure that the requirement to hold allowances under section 452(a)(1)
may be met using nitrogen oxides allowances allocated for an ozone
season before 2008 under a nitrogen oxides trading program that the
Administrator administers, is included in a NO<INF>X</INF> SIP Call
State's applicable implementation plan, and meets the requirements of
section 463 (a) and (b)(1).
``SEC. 466. NON-OZONE SEASON VOLUNTARY ACTION CREDITS.
``An affected facility that voluntarily elects to operate selective
catalytic reduction (SCR) units, installed prior to enactment of this
title, during the non-ozone season under section 461(2) shall be
credited 0.5 allowances per ton of NO<INF>X</INF> emissions avoided as
a result of operating these controls. The amount avoided will equal
every ton of nitrogen oxides reduction below the allowable emission
rate. The Administrator shall determine if any other existing
NO<INF>X</INF> emission control devices are generally uneconomic to
operate unless EGUs are provided incentives to control NO<INF>X</INF>
emissions during the non-ozone season. If the Administrator finds that
incentives using different control equipment are necessary to make the
operation of these devices economic, the Administrator shall specify
these types of control devices and, for an affected facility with these
specified devices, installed prior to enactment of this title, that
voluntarily elects to operate these devices during the nonozone season
under section 461(2) shall be credited 0.5 allowances per ton of
emissions avoided as a result of operating these controls. The
Administrator shall promulgate regulations as necessary to establish
this NO<INF>X</INF> allowance credit program. Failure of the
Administrator to promulgate implementing regulations prior to voluntary
reductions being undertaken by affected facilities shall not in any
manner reduce the number of allowances an otherwise qualifying facility
shall be credited upon promulgation of the regulations.
``PART D--MERCURY EMISSIONS REDUCTIONS
``SEC. 471. DEFINITIONS.
``For purposes of this part:
``(1) Adjusted baseline heat input.--The term `adjusted
baseline heat input' with regard to a unit means the unit's
baseline heat input multiplied by--
``(A) 1.0, for the portion of the baseline heat
input that is the unit's average annual combustion of
bituminous during the years on which the unit's
baseline heat input is based;
``(B) 3.0, for the portion of the baseline heat
input that is the unit's average annual combustion of
lignite during the years on which the unit's baseline
heat input is based;
``(C) 1.25, for the portion of the baseline heat
input that is the unit's average annual combustion of
subbituminous during the years on which the unit's
baseline heat input is based; and
``(D) 1.0, for the portion of the baseline heat
input that is not covered by subparagraph (A), (B), or
(C) or for the entire baseline heat input if such
baseline heat input is not based on the unit's heat
input in specified years.
``(2) Affected egu.--The term `affected EGU' means--
``(A) for a unit serving a generator before the
date of enactment of the Clear Skies Act of 2005, a
coal-fired unit in a State serving a generator with a
nameplate capacity of greater than 25 megawatts that
produced or produces electricity for sale during 2002
or any year thereafter, except for a cogeneration unit
meets the criteria for qualifying for a cogeneration
facilities codified in section 292.205 of title 18 of
the Code of Federal Regulations as issued on April 1,
2002, during 2002 and each year thereafter; and
``(B) for a unit commencing service of a generator
on or after the date of enactment of the Clear Skies
Act of 2005, a coal-fired unit in a State serving a
generator that produces electricity for sale during any
year starting with the year the unit commences service
of a generator, except for a cogeneration unit that
meets the criteria for qualifying for a cogeneration
facilities codified in section 292.205 of title 18 of
the Code of Federal Regulations as issued on April 1,
2002, during each year starting with the year the unit
commences service of a generator.
``(C) Exclusion.--Notwithstanding paragraphs (A)
and (B), the term `affected EGU' does not include--
``(i) a solid waste incineration unit
subject to section 129;
``(ii) a unit for the treatment, storage,
or disposal of hazardous waste subject to
section 3005 of the Solid Waste Disposal Act;
or
``(iii) a unit with de minimis emissions
equal to or less than 50 pounds on an average
annual basis, as calculated by the
Administrator for a 3-year period using--
``(I) for calendar year 2010, the
emissions data for a facility for
calendar years 2006 through 2009; and
``(II) for calendar year 2011 and
subsequent calendar years, the 3 most
recent calendar years for which
emissions data are available.
``SEC. 472. APPLICABILITY.
``Starting January 1, 2010, it shall be unlawful for the affected
EGUs at a facility in a State to emit a total amount of mercury during
the year in excess of the number of mercury allowances held for such
facility for that year by the owner or operator of the facility.
``SEC. 473. LIMITATIONS ON TOTAL EMISSIONS.
``For affected EGUs for 2010 and each year thereafter, the
Administrator shall allocate mercury allowances pursuant to section
474.
TABLE A.--TOTAL MERCURY ALLOWANCES ALLOCATED FOR EGUS
------------------------------------------------------------------------
Mercury
Year allowances
allocated
------------------------------------------------------------------------
2010-2017.................................................. 1,088,000
2018 and thereafter........................................ 480,000
------------------------------------------------------------------------
``SEC. 474. EGU ALLOCATIONS.
``(a) In General.--Not later than 24 months before the commencement
date of the mercury allowance requirement of section 472, the
Administrator shall promulgate regulations determining allocations of
mercury allowances for 2010 and thereafter for units at a facility that
commence commercial operation by and are affected EGUs as of date of
enactment. The regulations shall provide that the Administrator shall
allocate each year for such units an amount determined by multiplying
by 0.95 the allocation amount in section 473 by the ratio of the total
amount of the adjusted baseline heat input of such units at the
facility to the total amount of adjusted baseline heat input of all
affected EGUs.
``(b) New Facilities.--5 percent of the total amount of nitrogen
oxides allowances allocated each year under section 473 shall be
allocated for units at a facility that commence commercial operation
and are affected EGUs after the date of enactment. These units shall be
allocated allowances for each year by multiplying the allocation amount
under section 473 by the ratio of the total amount of the adjusted
baseline heat input of such units at the facility to the total amount
of adjusted baseline heat input to all affected EGUs, including those
covered in subsection (a). However, the regulations shall not allocate
allowances to any affected unit in excess of the product of the unit's
baseline heat input multiplied by the unit's allowable mercury
emissions rate, divided by 2000.
``(c) Allocation.--Allowances allocated under subsection (b) shall
be allocated to units on a first come basis determined by date of unit
commencement of construction, provided that such unit actually
commences commercial operation. As such, allocations to units under
subsection (b) will not be reduced as a result of new units commencing
commercial operation.
``(d) Unallocated Allowances.--Allowances not allocated under
paragraph (2) shall be allocated to units in subsections (a) and (b) on
a pro rata basis.
``(e) Amount of Allowances.--For each year 2010 and thereafter, if
the Administrator has not promulgated the regulations determining
allocation under subsection (a)--
``(1) each affected unit shall comply with section 472 by
providing annual notice to the permitting authority. Such
notice shall indicate the amount of allowances the affected
unit believes it has for the relevant year and the amount of
mercury emissions for such year. The amount of mercury
emissions shall be determined using reasonable industry
accepted methods unless the Administrator has promulgated
applicable monitoring and alternative monitoring requirements;
and
``(2) upon promulgation of regulations under subsection (a)
determining the allocations for 2010 and thereafter, and
promulgating regulations under section 403(b) providing for the
transfer of mercury allowances and section 403(c) establishing
an Allowance Transfer System for mercury allowances, each
unit's emissions shall be compared to and reconcile with its
actual allocations under the promulgated regulation. Each unit
will have nine (9) months to submit allowances to the
Administrator, without recompense, for any allowances
shortfall. The submitted allowances may have been obtained and
held by any mechanism consistent with the Act including, but
not limited to, direct sale.
``SEC. 475. MERCURY EARLY ACTION REDUCTION CREDITS.
``(a) In General.--The Administrator shall promulgate regulations
within 18 months authorizing the allocation of mercury allowances to
units designated under this section that install or modify pollution
control equipment or combustion technology improvements identified in
such regulations after the date of enactment of this section and prior
to January 1, 2010.
``(b) Nonallocation of Allowances.--No allowances shall be
allocated under this paragraph for emissions reductions: attributable
to pollution control equipment or combustion technology improvements
that were operational or under construction at any time prior to the
date of enactment of this section; attributable to fuel switching; or
required under any Federal regulation.
``(c) Amount of Allowances.--The allowances allocated to any unit
under this paragraph shall be in addition to the allowances allocated
under section 474 and shall be allocated in an amount equal to 1
allowance of mercury for each 1.05 ounces of reduction in emissions of
mercury achieved by the pollution control equipment or combustion
technology improvements starting with the year in which the equipment
or improvement is implemented. The early compliance reduction
allowances available under this section shall be used and tradable in
the same manner as allowances under section 474.
``(d) Early Compliance Allowance Credit.--The Administrator shall
promulgate regulations as necessary to ensure affected units receive
early compliance allowance credit. Early compliance allowances shall be
allocated at the end of an early compliance year. Should the
Administrator fail to promulgate allocation regulations by the end of a
given year, early compliance allowances for each year shall be
allocated at the earliest possible time after allocation regulations
are promulgated.
``PART E--NATIONAL EMISSION STANDARDS; RESEARCH, ENVIRONMENTAL
ACCOUNTABILITY; MAJOR SOURCE PRECONSTRUCTION REVIEW AND BEST AVAILABLE
RETROFIT CONTROL TECHNOLOGY REQUIREMENTS
``SEC. 481. NATIONAL EMISSION STANDARDS FOR AFFECTED UNITS.
``(a) Definitions.--For purposes of this section:
``(1) Commenced.--The term `commenced', with regard to
construction, means that an owner or operator has either
undertaken a continuous program of construction or has entered
into a contractual obligation to undertake and complete, within
a reasonable time, a continuous program of construction. For
boilers and integrated gasification combined cycle plants, this
term does not include undertaking such a program or entering
into such an obligation more than 36 months prior to the date
on which the unit begins operation. For combustion turbines,
this term does not include undertaking such a program or
entering into such an obligation more than 18 months prior to
the date on which the unit begins operation.
``(2) Construction.--The term `construction' means
fabrication, erection, or installation of an affected unit.
``(3) Affected unit.--The term `affected unit' means any
unit that is subject to emission limitations under subpart 2 of
part B, subpart 2 of part C, or part D.
``(4) Existing affected unit.--The term `existing affected
unit' means any affected unit that is not a new affected unit.
``(5) New affected unit.--The term `new affected unit;'
means any affected unit, the construction or reconstruction of
which is commenced after the date of enactment of the Clear
Skies Act of 2005, except that for the purpose of any revision
of a standard pursuant to subsection (e), `new affected unit'
means any affected unit, the construction or reconstruction of
which is commenced after the publication of regulations (or, if
earlier, proposed regulations) prescribing a standard under
this section that will apply to such unit.
``(6) Reconstruction.--The term `reconstruction' means the
replacement of components of a unit to such an extent that--
``(A) the fixed capital cost of the new components
exceeds 50 percent of the fixed capital cost that would
be required to construct a comparable entirely new
unit; and
``(B) it is technologically and economically
feasible to meet the applicable standards set forth in
this section.
``(b) Emission Standards.--
``(1) In general.--No later than 12 months after the date
of enactment of the Clear Skies Act of 2005, the Administrator
shall promulgate regulations prescribing the standards in
subsections (c) through (d) for the specified affected units
and establishing requirements to ensure compliance with these
standards, including monitoring, recordkeeping, and reporting
requirements.
``(2) Monitoring.--
``(A) In general.--The owner or operator of any
affected unit subject to the standards for sulfur
dioxide, nitrogen oxides, or mercury under this section
shall meet the requirements of section 405, except
that, where two or more units utilize a single stack,
separate monitoring shall be required for each affected
unit for the pollutants for which the unit is subject
to such standards.
``(B) Requirements.--The Administrator shall, by
regulation, require--
``(i) the owner or operator of any affected
unit subject to the standards for sulfur
dioxide, nitrogen oxides, or mercury under this
section to--
``(I) install and operate CEMS for
monitoring output, including
electricity and useful thermal energy,
on the affected unit and to quality
assure the data; and
``(II) comply with recordkeeping
and reporting requirements, including
provisions for reporting output data in
megawatt hours.
``(ii) the owner or operator of any
affected unit subject to the standards for
particulate matter under this section to--
``(I) install and operate CEMS for
monitoring particulate matter on the
affected unit and to quality assure the
data;
``(II) comply with recordkeeping
and reporting requirements; and
``(III) comply with alternative
monitoring, quality assurance,
recordkeeping, and reporting
requirements for any period of time for
which the Administrator determines that
CEMS with appropriate vendor guarantees
are not commercially available for
particulate matter.
``(3) Compliance.--For boilers, integrated gasification
combined cycle plants, and coal fired or gas-fired combustion
turbines the Administrator shall require that the owner or
operator demonstrate compliance with the standards daily, using
a 30-day rolling average, except that in the case of mercury,
the compliance period shall be the calendar year. For
combustion turbines that are oil-fired the Administrator shall
require that the owner or operator demonstrate compliance with
the standards hourly, using a 4-hour rolling average.
``(c) Boilers and Integrated Gasification Combined Cycle Plants.--
``(1) In general.--After the effective date of standards
promulgated under subsection (b), no owner or operator shall
cause any boiler or integrated gasification combined cycle
plant that is a new affected unit to discharge into the
atmosphere any gases which contain--
``(A) sulfur dioxide in excess of 2.0 lb/MWh;
``(B) nitrogen oxides in excess of 1.0 lb/MWh;
``(C) particulate matter in excess of 0.20 lb/MWh;
or
``(D) if the unit is coal-fired, mercury in excess
of 0.015 lb/GWh, unless--
``(i) mercury emissions from the unit,
determined assuming no use of on-site or off-
site pre-combustion treatment of coal and no
use of technology that captures mercury, are
reduced by 80 percent;
``(ii) flue gas desulfurization (FGD) and
selective catalytic reduction (SCR) are applied
to the unit; or
``(iii) a technology is applied to the unit
and the permitting authority determines that
the technology is equivalent in terms of
mercury capture to the application of FGD and
SCR.
``(2) Exemption.--Notwithstanding subparagraph (1)(D),
integrated gasification combined cycle plants with a combined
capacity of less than 5 GW are exempt from the mercury
requirement under subparagraph (1)(D) if they are constructed
as part of a demonstration project under the Secretary of
Energy that will include a demonstration of removal of
significant amounts of mercury as determined by the Secretary
of Energy in conjunction with the Administrator as part of the
solicitation process.
``(3) Discharges.--After the effective date of standards
promulgated under subsection (b), no owner or operator shall
cause any oil-fired boiler that is an existing affected unit to
discharge into the atmosphere any gases which contain
particulate matter in excess of 0.30 lb/MWh.
``(d) Combustion Turbines.--
``(1) Gas-fired combustion turbines.--After the effective
date of standards promulgated under subsection (b), no owner or
operator shall cause any gas-fired combustion turbine that is a
new affected unit to discharge into the atmosphere any gases
which contain nitrogen oxides in excess of--
``(A) 0.56 lb/MWh (15 ppm at 15 percent oxygen), if
the unit is a simple cycle combustion turbine;
``(B) 0.084 lb/MWh (3.5 ppm at 15 percent oxygen),
if the unit is not a simple cycle combustion turbine
and either uses add-on controls or is located within 50
km of a class I area; or
``(C) 0.21 lb/MWh (9 ppm at 15 percent oxygen), if
the unit is not a simple cycle turbine and neither uses
add-on controls nor is located within 50 km of a class
I area.
``(2) Coal-fired combustion turbines.--After the effective
date of standards promulgated under subsection (b), no owner or
operator shall cause any coal-fired combustion turbine that is
a new affected unit to discharge into the atmosphere any gases
which contain sulfur dioxide, nitrogen oxides, particulate
matter, or mercury in excess of the emission limits under
subparagraphs (c)(1) (A) through (D).
``(3) Combustion turbines that are not gas-fired or coal-
fired.--After the effective date of standards promulgated under
subsection (b), no owner or operator shall cause any combustion
turbine that is not gas-fired or coal-fired and that is a new
affected unit to discharge into the atmosphere any gases which
contain--
``(A) sulfur dioxide in excess of 2.0 lb/MWh;
``(B) nitrogen oxides in excess of--
``(i) 0.289 lb/MWh (12 ppm at 15 percent
oxygen), if the unit is not a simple cycle
combustion turbine, is dual-fuel capable, and
uses add-on controls; or is not a simple cycle
combustion turbine and is located within 50 km
of a class I area; and
``(ii) 1.01 lb/MWh (42 ppm at 15 percent
oxygen), if the unit is a simple cycle
combustion turbine; is not a simple cycle
combustion turbine and is not dual-fuel
capable; or is not a simple cycle combustion
turbine, is dual-fuel capable, and does not use
add-on controls.
``(C) particulate matter in excess of 0.20 lb/MWh.
``(e) Periodic Review and Revision.--
``(1) In general.--The Administrator shall, at least every
eight years following the promulgation of standards under
subsection (b), review and, if appropriate, revise such
standards to reflect the degree of emission limitation
demonstrated by substantial evidence to be achievable through
the application of the best system of emission reduction which
(taking into account the cost of achieving such reduction and
any nonair quality health and environmental impacts and energy
requirements). When implementation and enforcement of any
requirement of this Act indicate that emission limitations and
percent reductions beyond those required by the standards
promulgated under this section are achieved in practice, the
Administrator shall, when revising standards promulgated under
this section, consider the emission limitations and percent
reductions achieved in practice.
``(2) Exception.--Notwithstanding the requirements of
paragraph (1) the Administrator need not review any standard
promulgated under subsection (b) if the Administrator
determines that such review is not appropriate in light of
readily available information on the efficacy of such standard.
``(f) Effective Date.--The standard promulgated pursuant to this
section shall become effective upon promulgation.
``(g) Delegation.--
``(1) In general.--Each State may develop and submit to the
Administration a procedure for implementing and enforcing
standards promulgated under this section for affected units
located in such State. If the Administrator finds the State
procedure is adequate, the Administrator shall delegate to such
State any authority the Administrator has under this Act to
implement and enforce such standards.
``(2) Enforcement.--Nothing in this subsection shall
prohibit the Administrator from enforcing any applicable
standard under this section.
``(h) Violations.--After the effective date of standards
promulgated under this section, it shall be unlawful for any owner or
operator of any affected unit to operate such unit in violation of any
standard, established by this section applicable to such unit.
``(i) Coordination With Other Authorities.--For purposes of
sections III(e), 113, 114, 116, 120, 303, 304, 307, and other
provisions for the enforcement of this Act, each standard established
pursuant to this section shall be treated in the same manner as a
standard of performance under section 111, and each affected unit
subject to standards under this section shall be treated in the same
manner as a stationary source under section 111.
``(j) State Authority.--Nothing in this section shall preclude or
deny the right of any State or political subdivision thereof to adopt
or enforce any regulation, requirement, limitation, or standard
relating to affected units, or other EGUs, that is more stringent than
a regulation, requirement, limitation, or standard in effect under this
section or under any other provision of this Act.
``(k) Other Authority Under This Act.--Nothing in this section
shall diminish the authority of the Administrator or a State to
establish any other requirements applicable to affected units under any
other authority of law, including the authority to establish for any
air pollutant a national ambient air quality standard, except that no
new affected unit subject to standards under this section shall be
subject to standards under section 111 of this Act.
``SEC. 482. RESEARCH, ENVIRONMENTAL MONITORING, AND ASSESSMENT.
``(a) Purposes.--The Administrator, in collaboration with the
Secretary of Energy and the Secretary of the Interior, shall conduct a
comprehensive program of research, environmental monitoring, and
assessment to enhance scientific understanding of the human health and
environmental effects of particulate matter and mercury and to
demonstrate the efficacy of emission reductions under this title for
purposes of reporting to Congress under (e)(2). The purposes of such a
program are to--
``(1) expand current research and knowledge of the
contribution of emissions from electricity generation to
exposure and health effects associated with particulate matter
and mercury;
``(2) enhance current research and development of promising
multi-pollutant control strategies and CEMS for mercury;
``(3) produce peer-reviewed scientific and technology
information;
``(4) improve environmental monitoring and assessment of
sulfur dioxide, nitrogen oxides and mercury, and their
transformation products, to track changes in human health and
the environment attributable to emission reductions under this
title; and
``(5) periodically provide peer-reviewed reports on the
costs, benefits, and effectiveness of emission reductions
achieved under this title.
``(b) Research.--The Administrator shall enhance planned and
ongoing laboratory and field research and modeling analyses, and
conduct new research and analyses to produce peer-reviewed information
concerning the human health and environmental effects of mercury and
particulate matter and the contribution of United States electrical
generating units to those effects. Such information shall be included
in the report under subsection (d). In addition, such research and
analyses shall--
``(1) improve understanding of the rates and processes
governing chemical and physical transformations of mercury in
the atmosphere, including speciation of emissions from
electricity generation and the transport of these species;
``(2) improve understanding of the contribution of mercury
emissions from electricity generation to mercury in fish and
other biota, including--
``(A) the response of and contribution to mercury
in the biota owing to atmospheric deposition of mercury
from U.S. electricity generation on both local and
regional scales;
``(B) long-term contributions of mercury from U.S.
electricity generation on mercury accumulations in
ecosystems, and the effects of mercury reductions in
that sector on the environment and public health;
``(C) the role and contribution of mercury, from
U.S. electricity generating facilities and
anthropogenic and natural sources to fish contamination
and to human exposure, particularly with respect to
sensitive populations;
``(D) the contribution of U.S. electricity
generation to population exposure to mercury in
freshwater fish and seafood and quantification of
linkages between U.S. mercury emissions and domestic
mercury exposure and its health effects; and
``(E) the contribution of mercury from U.S.
electricity generation in the context of other domestic
and international sources of mercury, including
transport of global anthropogenic and natural
background levels;
``(3) improve understanding of the health effects of fine
particulate matter components related to electricity generation
emissions (as distinct from other fine particle fractions and
indoor air exposures) and the contribution of U.S. electrical
generating units to those effects including--
``(A) the chronic effects of fine particulate
matter from electricity generation in sensitive
population groups; and
``(B) personal exposure to fine particulate matter
from electricity generation; and
``(4) improve understanding, by way of a review of the
literature, of methods for valuing human health and
environmental benefits associated with fine particulate matter
and mercury.
``(c) Innovative Control Technologies.--The Administrator shall
collaborate with the Secretary of Energy to enhance research and
development, and conduct new research that facilitates research into
and development of innovative technologies to control sulfur dioxide,
nitrogen oxides, mercury, and particulate matter at a lower cost than
existing technologies. Such research and development shall provide
updated information on the cost and feasibility of technologies. Such
information shall be included in the report under subsection (d). In
addition, the research and development shall--
``(1) upgrade cost and performance models to include
results from ongoing and future electricity generation and
pollution control demonstrations by the Administrator and the
Secretary of Energy;
``(2) evaluate the overall environmental implications of
the various technologies tested including the impact on the
characteristics of coal combustion residues;
``(3) evaluate the impact of the use of selective catalytic
reduction on mercury emissions from the combustion of all coal
types;
``(4) evaluate the potential of integrated gasification
combined cycle to adequately control mercury;
``(5) expand current programs by the Administrator to
conduct research and promote, lower cost CEMS capable of
providing real-time measurements of both speciated and total
mercury and integrated compact CEMS that provide cost-effective
real-time measurements of sulfur dioxide, nitrogen oxides, and
mercury;
``(6) expand lab- and pilot-scale mercury and multi-
pollutant control programs by the Secretary of Energy and the
Administrator, including development of enhanced sorbents and
scrubbers for use on all coal types;
``(7) characterize mercury emissions from low-rank coals,
for a range of traditional control technologies, like scrubbers
and selective catalytic reduction; and
``(8) improve low cost combustion modifications and
controls for dry-bottom boilers.
``(d) Environmental Accountability.--
``(1) Monitoring and assessment.--The Administrator shall
conduct a program of environmental monitoring and assessment to
track on a continuing basis, changes in human health and the
environment attributable to the emission reductions required
under this title. Such a program shall--
``(A) develop and employ methods to routinely
monitor, collect, and compile data on the status and
trends of mercury and its transformation products in
emissions from affected facilities, atmospheric
deposition, surface water quality, and biological
systems. Emphasis shall be placed on those methods
that--
``(i) improve the ability to routinely
measure mercury in dry deposition processes;
``(ii) improve understanding of the spatial
and temporal distribution of mercury deposition
in order to determine source-receptor
relationships and patterns of long-range,
regional, and local deposition;
``(iii) improve understanding of aggregate
exposures and additive effects of methylmercury
and other pollutants; and
``(iv) improve understanding of the
effectiveness and cost of mercury emissions
controls;
``(B) modernize and enhance the national air
quality and atmospheric deposition monitoring networks
in order to cost-effectively expand and integrate,
where appropriate, monitoring capabilities for sulfur,
nitrogen, and mercury to meet the assessment and
reporting requirements of this section;
``(C) perform and enhance long-term monitoring of
sulfur, nitrogen, and mercury, and parameters related
to acidification, nutrient enrichment, and mercury
bioaccumulation in freshwater and marine biota;
``(D) maintain and upgrade models that describe the
interactions of emissions with the atmosphere and
resulting air quality implications and models that
describe the response of ecosystems to atmospheric
deposition; and
``(E) assess indicators of ecosystems health
related to sulfur, nitrogen, and mercury, including
characterization of the causes and effects of episodic
exposure to air pollutants and evaluation of recovery.
``(2) Reporting requirements.--Not later than January 1,
2008, and not later than every 4 years thereafter, the
Administrator shall provide a peer reviewed report to the
Congress on the costs, benefits, and effectiveness of emission
reduction programs under this title.
``(A) The report under this subparagraph shall
address the relative contribution of emission
reductions from U.S. electricity generation under this
title compared to the emission reductions achieved
under other titles of the Clean Air Act with respect
to--
``(i) actual and projected emissions of
sulfur dioxide, nitrogen oxides, and mercury;
``(ii) average ambient concentrations of
sulfur dioxide and nitrogen oxides
transformation products, related air quality
parameters, and indicators of reductions in
human exposure;
``(iii) status and trends in total
atmospheric deposition of sulfur, nitrogen, and
mercury, including regional estimates of total
atmospheric deposition;
``(iv) status and trends in visibility;
``(v) status of terrestrial and aquatic
ecosystems (including forests and forested
watersheds, streams, lakes, rivers, estuaries,
and nearcoastal waters);
``(vi) status of mercury and its
transformation products in fish;
``(vii) causes and effects of atmospheric
deposition, including changes in surface water
quality, forest and soil conditions;
``(viii) occurrence and effects of coastal
eutrophication and episodic acidification,
particularly with respect to high elevation
watersheds; and
``(ix) reduction in atmospheric deposition
rates that should be achieved to prevent or
reduce adverse ecological effects.
``(B) The report under this subparagraph shall
address the relative contribution of the United States
to world-wide emissions as well as a comparison of the
stringency of fossil fuel-fired requirements under the
Act to other countries.
``SEC. 483. MAJOR SOURCE PRECONSTRUCTION REVIEW REQUIREMENTS AND BEST
AVAILABLE RETROFIT CONTROL TECHNOLOGY REQUIREMENTS;
APPLICABILITY TO AFFECTED UNITS.
``(a) Major Source Exemption.--An affected unit shall be considered
neither a major emitting facility or major stationary source nor a part
of a major emitting facility or major stationary source, for purposes
of compliance with the requirements of parts C and part D of title I,
and shall not otherwise be subject to the requirements of section 169A
or 169B, for a period of 20 years after the date of enactment of this
section. This applicability provision only applies to affected units
that are either subject to the performance standards of section 481 or
meet the following requirements within 3 years after the date of
enactment of the Clear Skies Act of 2005:
``(1) The owner or operator of the affected unit properly
operates, maintains and repairs pollution control equipment to
limit emissions of particulate matter, or the owner or operator
of the affected unit is subject to an enforceable permit issued
pursuant to title V or a permit program approved or promulgated
as part of an applicable implementation plan to limit the
emissions of particulate matter from the affected unit to 0.03
lb/mmBtu within eight years after the date of enactment of the
Clear Skies Act of 2005, and
``(2) The owner or operator of the affected unit uses good
combustion practices to minimize emissions of carbon monoxide.
Good combustion practices may be accomplished through control
technology, combustion technology improvements, or workplace
practices.
``(b) Class I Area Protections.--Notwithstanding the provisions of
subsection (a), an affected unit located within 50 km of a Class I area
on which construction commences after the date of enactment of the
Clear Skies Act of 2005 is subject to those provisions under part C of
title I pertaining to the review of a new or reconstructed major
stationary source's impact on a Class I area.
``(c) Preconstruction Requirements.--Each State shall include in
its plan under section 110, as program to provide for the regulation of
the construction of an affected unit that ensures that the following
requirements are met prior to the commencement of construction of an
affected unit--
``(1) in an area designated as attainment or unclassifiable
under section 107(d), the owner or operator of the affected
unit must demonstrate to the State that the emissions increase
from the construction or operation of such unit will not cause,
or contribute to, air pollution in excess of any national
ambient air quality standard;
``(2) in an area designated as nonattainment under section
107(d), the State must determine that the emissions increase
from the construction or operation of such unit will not
interfere with any program to assure that the national ambient
air quality standards are achieved provided that interference
with any program will be deemed not to occur, with respect to
each nonattainment area located wholly or partially within the
State, if on the date of submission of a complete permit
application and throughout a continuous period of three years
immediately preceding such date, the nonattainment area was in
full compliance with all requirements of this Act, including
but not limited to requirements for State Implementation Plans;
``(3) for a reconstructed unit, prior to beginning
operation, the unit must comply with either the performance
standards of section 481 or best available control technology
as defined in part C of title I for the pollutants whose hourly
emissions will increase at the unit's maximum capacity; and
``(4) the State must provide for an opportunity for
interested persons to comment on the Class I area protections
and preconstruction requirements as set forth in this section.
``(d) Definitions.--For purposes of this section:
``(1) Affected unit.--The term `affected unit' means any
unit that is subject to emission limitations under subpart 2 of
part B, subpart 2 of part C, or part D.
``(2) Construction.--The term `construction' includes the
construction of a new affected unit and the modification of any
affected unit.
``(3) Modification.--The term `modification' means any
physical change in, or change in the method of operation of, an
affected unit that increases the maximum hourly emissions of
any pollutant regulated under this Act above the maximum hourly
emissions achievable at that unit during the five years prior
to the change or that results in the emission of any pollutant
regulated under this Act and not previously emitted.
``(e) Savings Clause.--Nothing in this section shall preclude or
deny the right of any State or political subdivision thereof to adopt
to enforce any regulation, requirement, limitation, or standard
relating to affected units that is more stringent than a regulation,
requirement, limitation, or standard in effect under this section or
under any other provision of this Act.''.
SEC. 3. OTHER AMENDMENTS.
(a) Title I.--Title I of the Clean Air Act is amended as follows:
(1) In section 103 by repealing subparagraphs (E) and (F).
(2) In section 107(d)(1)(A)--
(i) by striking ``or'' at the end of clause
(ii);
(ii) by striking the period at the end of
clause (iii) and inserting ``, or''; and
(iii) by adding at the end the following:
``(iv) notwithstanding clauses (i) through
(iii) and subsection (d)(3), if requested by a
State, an area may be redesignated as
transitional for the PM 2.5 national primary or
secondary ambient air quality standards or the
8-hour ozone national primary or secondary
ambient air quality standard if--
``(I) the Administrator has
performed air quality modeling and, in
the case of an area that needs
additional local control measures, the
State has performed supplemental air
quality modeling, demonstrating that
the area will attain the applicable
standard or standards not later than
December 31, 2015;
``(II) such modeling demonstration
and all necessary local controls have
been approved into the State
implementation plan not later than 1
year after the date of enactment of the
Clear Skies Act of 2005; and
``(III) the redesignation is made
not later than 180 days after the date
of that approval.''
(3) In section 110 as follows:
(A) By amending clause (i) of subsection (a)(2)(D)
by inserting ``except as provided in subsection (q),''
before the word ``prohibiting''.
(B) By adding the following new subsections at the
end thereof:
``(q) Review of Certain Plans.--
``(1) In general.--The Administrator shall, in reviewing,
under subsection (a)(2)(D)(i), any plan with respect to
affected units, within the meaning of section 126(d)(l)--
``(A) consider, among other relevant factors,
emissions reductions required to occur by the
attainment date or dates of any relevant nonattainment
areas in the other State or States;
``(B) not require submission of plan provisions
mandating emissions reductions from such affected
units, unless the Administrator determines that--
``(i) emissions from such units may be
reduced at least as cost-effectively as
emissions reductions in the State or each other
State from each other principal category of
sources of the relevant pollutant, pollutants,
or pre-cursors thereof, including industrial
boilers, on-road mobile sources, and off-road
mobile sources, and any other category of
sources that the Administrator may identify,
and
``(ii) reductions in such emissions will
improve air quality in the other State's or
States' nonattainment areas at least as cost-
effectively as reductions in emissions in the
State or each other State from each other
principal category of sources of the relevant
pollutant, pollutants, or pre-cursors thereof,
to the maximum extent that a methodology is
reasonably available to make such a
determination;
``(C) develop an appropriate peer reviewed
methodology for making determinations under
subparagraph (B) by December 31, 2006; and
``(D) not require submission of plan provisions
subjecting affected units, within the meaning of
section 126(d)(1), to requirements with an effective
date prior to December 31, 2014.
``(2) Proximity.--In making the determination under clause
(ii) of subparagraph (B) of paragraph (1), the Administrator
will use the best available peer-reviewed models and
methodology that consider the proximity of the source or
sources to the other State or States and incorporate other
source characteristics.
``(3) Effect on regulations.--Nothing in paragraph (1)
shall be interpreted to require revisions to the provisions of
40 CFR parts 51.121 and 51.122 (2001).
``(r) Transitional Areas.--
``(1) Maintenance.--
``(A) Submission of inventory and analysis.--By
December 31, 2011, each area designated as transitional
pursuant to section 107(d)(1) shall submit an updated
emission inventory and an analysis of whether growth in
emissions, including growth in vehicle miles traveled,
will interfere with attainment by December 31, 2014.
``(B) Review.--No later than December 31, 2011, the
Administrator shall review each transitional area's
maintenance analysis, and, if the Administrator
determines that growth in emissions will interfere with
attainment by December 31, 2014, the Administrator
shall consult with the State and determine what action,
if any, is necessary to assure that attainment will be
achieved by December 31, 2014.
``(2) Prevention of significant deterioration.--Each area
designated as transitional pursuant to section 107(d)(1) shall
be treated as an attainment or unclassifiable area for purposes
of the prevention of significant deterioration provisions of
part C of this title.
``(3) Consequences of failure to attain by 2015.--No later
than June 30, 2016, the Administrator shall determine whether
each area designated as transitional for the 8-hour ozone
standard or for the PM 2.5 standard has attained that standard.
If the Administrator determines that a transitional area has
not attained the standard, the area shall be redesignated as
nonattainment within one year of the determination and the
State shall be required to submit a State implementation plan
revision satisfying the provisions of section 172 within three
years of redesignation as nonattainment.''.
(4) In section 111(b)(1) by adding the following new
subparagraph (C) after subparagraph (B):
``(C) No standards of performance promulgated under
this section shall apply to units subject to
regulations promulgated pursuant to section 481.''.
(5) In section 112:
(A) By amending paragraph (1) of subsection (c) to
read as follows:
``(1) In general.--Not later than 12 months after November
15, 1990, the Administrator shall publish, and shall from time
to time, but not less often than every eight years, revise, if
appropriate, in response to public comment or new information,
a list of all categories and subcategories of major sources and
area sources (listed under paragraph (3)) of the air pollutants
listed pursuant to subsection (b). Electric utility steam
generating units not subject to section 3005 of the Solid Waste
Disposal Act shall not be included in any category or
subcategory listed under this subsection. The Administrator
shall have the authority to regulate the emission of hazardous
air pollutants listed under section 112(b), other than mercury
compounds, by electric utility steam generating units, provided
that any determination shall be based on public health concerns
and, on an individual source basis shall: consider the effects
of emissions controls installed or anticipated to be installed
in order to meet other emission reduction requirements under
this Act by 2018; and, be based on a peer reviewed study with
notice and opportunity to comment, to be completed not before
January 2015. Any such regulations shall be promulgated within,
and shall not take effect before, the date eight years after
the commencement date of the requirements set forth in section
472. To the extent practicable, the categories and
subcategories listed under this subsection shall be consistent
with the list of source categories established pursuant to
section 111 and part C. Nothing in the preceding sentence
limits the Administrator's authority to establish subcategories
under this section, as appropriate.''.
(B) By amending subparagraph (A) of subsection
(n)(1) to read as follows:
``(A) Study.--The Administrator shall perform a
study of the hazards to public health reasonably
anticipated to occur as a result of emissions by
electric utility steam generating units of pollutants
listed under subsection (b) after imposition of the
requirements of this Act. The Administrator shall
report the results of this study to the Congress within
three years after November 15, 1990.''
(6) Section 126 is amended as follows:
(A) By replacing ``section 110(a)(2)(D)(ii) or this
section'' in subsection (b) with ``section
110(a)(2)(D)(i)''.
(B) In the language at end of subsection (c) by
striking ``section 110(a)(2)(D)(ii)'' and inserting
``section 110(a)(2)(D)(i)'' and deleting the last
sentence.
(D) By adding at the end the following:
``(d) Definition of Affected Unit.--
``(1) In general.--For purposes of this subsection, the
term `affected unit' means any unit that is subject to emission
limitations under subpart 2 of part B, subpart 2 of part C, or
part D, or is a designated unit under section 407.
``(2) Finding for affected units.--To the extent that any petition
submitted under subsection (b) after the date of enactment of the Clear
Skies Act of 2005 seeks a finding for any affected unit, then,
notwithstanding any provision in subsections (a) through (c) to the
contrary:
``(A) In determining whether to make a finding under
subsection (b) for any affected unit, the Administrator shall
consider, among other relevant factors, emissions reductions
required to occur by the attainment date or dates of any
relevant nonattainment areas in the petitioning State or
political subdivision.
``(B) The Administrator may not determine that affected
units emit, or would emit, any air pollutant in violation of
the prohibition of section 110(a)(2)(D)(i) unless that
Administrator determines that--
``(i) such emissions may be reduced at least as
cost-effectively as emissions from each other principal
category of sources of sulfur dioxide or nitrogen
oxides, including industrial boilers, on-road mobile
sources, and off-road mobile sources, and any other
category of sources that the Administrator may
identify; and
``(ii) reductions in such emissions will improve
air quality in the petitioning State's nonattainment
area or areas at least as cost-effectively as
reductions in emissions from each other principal
category of sources of sulfur dioxide or nitrogen
oxides to the maximum extent that a methodology is
reasonably available to make such a determination.
In making the determination under clause (ii), the
Administrator shall use the best available peer-reviewed models
and methodology that consider the proximity of the source or
sources to the petitioning State or political subdivision and
incorporate other sources characteristics.
``(C) The Administrator shall develop an appropriate peer
reviewed methodology for making determinations under
subparagraph (B) by December 31, 2006.
``(D) The Administrator shall not make any findings with
respect to an affected unit under this section prior to
December 1, 2011. For any petition submitted prior to January
1, 2010, the Administrator shall make a finding or deny the
petition by the December 31, 2011.
``(E) The Administrator, by rulemaking, shall extend the
compliance and implementation deadlines in subsection (c) to
the extent necessary to assure that no affected unit shall be
subject to any such deadline prior to January 1, 2014.''.
(b) Title III.--Section 307(d)(1)(G) of title III of the Clean Air
Act is amended to read as follows:
``(G) the promulgation or revision of any
regulation under title IV,''.
(c) Noise Pollution.--Title IV of the Clean Air Act (relating to
noise pollution) (42 U.S.C. 7641 et seq.) is redesignated as title VII
and amended by renumbering sections 401 through 403 as sections 701
through 703, respectively, and conforming all cross-references thereto
accordingly.
(d) Section 406.--Title IV of the Clean Air Act Amendments of 1990
(relating to acid deposition control) is amended by repealing section
406 (industrial sulfur dioxide emissions).
(e) Monitoring.--Section 821 (a) of title VIII of the Clean Air Act
Amendments of 1990 (miscellaneous provisions) is amended to read as
follows:
``(a) Monitoring.--The Administrator shall promulgate regulations
within eighteen months after November 15, 1990, to require that all
affected sources subject to subpart 1 of part B of title IV of the
Clean Air Act as of December 31, 2009, shall also monitor carbon
dioxide emissions according to the same timetable as in section 405(b).
The regulations shall require that such data be reported to the
Administrator. The provisions of section 405(e) of title IV of the
Clean Air Act 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 405. The Administrator shall
implement this subsection under 40 CFR part 75 (2002), amended as
appropriate by the Administrator.''.
<all>
Introduced in Senate
Read twice and referred to the Committee on Environment and Public Works. (text of measure as introduced: CR S319-348)
Committee on Environment and Public Works. Hearings held. Hearings printed: S.Hrg. 109-867.
Committee on Environment and Public Works. Committee consideration and Mark Up Session held.
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