II 109th CONGRESS 2d Session S. 2724 IN THE SENATE OF THE UNITED STATES May 4, 2006 Mr. Carper (for himself, Mr. Alexander, Mr. Chafee, Mr. Gregg, Mr. Dodd, Mrs. Feinstein, and Mr. Graham) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works A BILL To amend the Clean Air Act to establish a national uniform multiple air pollutant regulatory program for the electric generating sector.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Clean Air Planning Act of 2006. (b)

Table of contents

The table of contents of this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Findings and purposes. Sec. 3. Integrated air quality planning for the electric generating sector. Sec. 4. New source review program. Sec. 5. Revisions to sulfur dioxide allowance program. Sec. 6. Air quality forecasts and warnings. Sec. 7. Relationship to other law.

2.

Findings and purposes

(a)

Findings

Congress finds that— (1)fossil fuel-fired electric generating facilities, consisting of facilities fueled by coal, fuel oil, and natural gas, produce nearly 2/3 of the electricity generated in the United States; (2)fossil fuel-fired electric generating facilities produce approximately 2/3 of the total sulfur dioxide emissions, 1/3 of the total nitrogen oxides emissions, 1/3 of the total carbon dioxide emissions, and 1/3 of the total mercury emissions, in the United States; (3)the Clean Air Act (42 U.S.C. 7401 et seq.) regulates substances (including carbon dioxide) that— (A)are emitted into the ambient air; and (B)affect the weather and the climate; (4)(A)many electric generating facilities have been exempt from the emission limitations applicable to new units based on the expectation that over time the units would be retired or updated with new pollution control equipment; but (B)many of the exempted units continue to operate and emit pollutants at relatively high rates; (5)pollution from existing electric generating facilities can be reduced through adoption of modern technologies and practices; (6)the full benefits of competition will not be realized if the environmental impacts of generation of electricity are not uniformly internalized; (7)the ability of owners of electric generating facilities to effectively plan for the future is impeded by the uncertainties surrounding future environmental regulatory requirements that are imposed inefficiently on a piecemeal basis; and (8)States and regions have increasingly adopted programs to address carbon dioxide emissions from electric generating facilities, and Federal regulations relating to carbon dioxide emissions should take those programs into consideration. (b)

Purposes

The purposes of this Act are— (1)to protect and preserve the environment and safeguard public health by ensuring that substantial emission reductions are achieved at fossil fuel-fired electric generating facilities; (2)to significantly reduce the quantities of mercury, carbon dioxide, sulfur dioxide, and nitrogen oxides that enter the environment as a result of the combustion of fossil fuels; (3)to encourage the development and use of renewable energy; (4)to internalize the cost of protecting the values of public health, air, land, and water quality in the context of a competitive market in electricity; (5)to provide a period of environmental regulatory stability for owners and operators of electric generating facilities so as to promote improved management of existing assets and new capital investments; and (6)to achieve emission reductions from electric generating facilities in a cost-effective manner.

3.

Integrated air quality planning for the electric generating sector

The Clean Air Act (42 U.S.C. 7401 et seq.) is amended by adding at the end the following: .

4.

New source review program

Section 165 of the Clean Air Act (42 U.S.C. 7475) is amended by adding at the end the following: (f)

Revisions to new source review program

(1)

Definitions

In this subsection: (A)

Affected unit; covered unit

The terms affected unit and covered unit have the meanings given the terms in section 701. (B)

New source review program

The term new source review program means the program to carry out this part and part D. (2)

Performance standards

(A)

In general

Except as provided in subparagraph (B), beginning January 1, 2020, and on each January 1 thereafter, each affected unit that has been in operation 50 or more years as of that January 1 shall meet performance standards of— (i)2 lbs/MWh for sulfur dioxide; and (ii)1 lbs/MWh for nitrogen oxides. (B)

Exception

(i)

In general

Notwithstanding subparagraph (A), an affected unit that, as of January 1, 2020, is required to meet a more stringent performance standard than the applicable standard under subparagraph (A) shall continue to meet the more stringent standard. (ii)

Modification of affected units

The requirements of this section shall not affect in any way any requirement under section 111(a)(4), this part, or part D governing modifications of major stationary sources. (3)

No effect on other requirements and retention of State authority

Nothing in this subsection affects— (A)any State authority under section 116; or (B)the obligation of any State or local government or any major emitting facility to comply with the requirements of this section. .

5.

Revisions to sulfur dioxide allowance program

(a)

In general

Title IV of the Clean Air Act (relating to acid deposition control) (42 U.S.C. 7651 et seq.) is amended by adding at the end the following:

417.

Revisions to sulfur dioxide allowance program

(a)

Definitions

In this section, the terms affected unit and new unit have the meanings given the terms in section 701. (b)

Regulations

Not later than January 1, 2007, the Administrator shall promulgate such revisions to the regulations to implement this title as the Administrator determines to be necessary to implement section 702(a). (c)

New unit reserve

(1)

Establishment

Subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a), the Administrator shall establish by regulation a reserve of allowances to be set aside for use by new units. (2)

Determination of quantity

The Administrator, in consultation with the Secretary of Energy, shall determine, based on projections of electricity output for new units— (A)not later than June 30, 2007, the quantity of allowances required to be held in reserve for new units for each of calendar years 2011 through 2015; and (B)not later than June 30 of each fifth calendar year thereafter, the quantity of allowances required to be held in reserve for new units for the following 5-calendar year period. (3)

Allocation

(A)

Regulations

The Administrator shall promulgate regulations to establish a methodology for allocating allowances to new units. (B)

No judicial review

An allocation of allowances by the Administrator under this subsection shall not be subject to judicial review. (d)

Existing units

(1)

Allocation

(A)

Regulations

Subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a), and subject to the reserve of allowances for new units under subsection (c), the Administrator shall promulgate regulations to govern the allocation of allowances to affected units that are not new units. (B)

Required elements

The regulations shall provide for— (i)the allocation of allowances on a fair and equitable basis between affected units that received allowances under section 405 and affected units that are not new units and that did not receive allowances under that section, using for both categories of units the same or similar allocation methodology as was used under section 405; and (ii)the pro-rata distribution of allowances to all units described in clause (i), subject to the annual tonnage limitation for emissions of sulfur dioxide from affected units specified in section 702(a). (2)

Timing of allocations

The Administrator shall allocate allowances to affected units— (A)not later than December 31, 2007, for calendar year 2011; and (B)not later than December 31 of calendar year 2008 and each calendar year thereafter, for the fourth calendar year that begins after that December 31. (3)

No judicial review

An allocation of allowances by the Administrator under this subsection shall not be subject to judicial review.

. (b)

Definition of allowance

Section 402 of the Clean Air Act (relating to acid deposition control) (42 U.S.C. 7651a) is amended by striking paragraph (3) and inserting the following: (3)

Allowance

The term allowance means an authorization, allocated by the Administrator to an affected unit under this title, to emit, during or after a specified calendar year, a quantity of sulfur dioxide determined by the Administrator and specified in the regulations promulgated under section 417(b). . (c)

Technical amendments

(1)Title IV of the Clean Air Act (relating to noise pollution) (42 U.S.C. 7641 et seq.)— (A)is amended by redesignating sections 401 through 403 as sections 801 through 803, respectively; and (B)is redesignated as title VIII and moved to appear at the end of that Act. (2)The table of contents for title IV of the Clean Air Act (relating to acid deposition control) (42 U.S.C. prec. 7651) is amended by adding at the end the following: Sec. 417. Revisions to sulfur dioxide allowance program. .

6.

Air quality forecasts and warnings

(a)

Requirement for forecasts and warnings

The Secretary of Commerce, acting through the Administrator of the National Oceanic and Atmospheric Administration, in cooperation with the Administrator of the Environmental Protection Agency, shall issue air quality forecasts and air quality warnings as part of the mission of the Department of Commerce. (b)

Regional warnings

In carrying out subsection (a), the Secretary of Commerce shall establish within the National Oceanic and Atmospheric Administration a program to provide region-oriented forecasts and warnings regarding air quality for each of the following regions of the United States: (1)The Northeast, composed of Connecticut, Maine, Massachusetts, New Hampshire, New York, Rhode Island, and Vermont. (2)The Mid-Atlantic, composed of Delaware, the District of Columbia, Maryland, New Jersey, Pennsylvania, Virginia, and West Virginia. (3)The Southeast, composed of Alabama, Florida, Georgia, North Carolina, and South Carolina. (4)The South, composed of Arkansas, Louisiana, Mississippi, Oklahoma, Tennessee, and Texas. (5)The Midwest, composed of Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. (6)The High Plains, composed of Kansas, Nebraska, North Dakota, and South Dakota. (7)The Northwest, composed of Idaho, Montana, Oregon, Washington, and Wyoming. (8)The Southwest, composed of Arizona, California, Colorado, New Mexico, Nevada, and Utah. (9)Alaska. (10)Hawaii. (c)

Priority area

In establishing the program described in subsection (a), the Secretary of Commerce and the Administrator shall identify and expand, to the maximum extent practicable, Federal air quality forecast and warning programs in effect as of the date of establishment of the program. (d)

Authorization of appropriations

There are authorized to be appropriated such sums as are necessary to carry out this section.

7.

Relationship to other law

(a)

Regulation of hazardous air pollutants

Section 112(n)(1) of the Clean Air Act (42 U.S.C. 7412(n)(1)) is amended by striking subparagraph (A) and inserting the following: (A)

Regulations

(i)

In general

Not later than 18 months after the date of enactment of the Clean Air Planning Act of 2006, the Administrator shall promulgate regulations under this section limiting the emission from electric utility steam generating units of hazardous air pollutants, other than mercury, as the Administrator determines to be appropriate and necessary in accordance with the standards under subsection (b)(2). (ii)

Requirements

The regulations under clause (i) shall— (I)require compliance with applicable standards as expeditiously as practicable, but not later than 3 years after the effective date of the regulations; and (II)be in accordance with other applicable requirements under this section. (iii)

Effective date

The regulations under clause (i) shall be effective on the date of promulgation of the regulations. . (b)

No effect on other Federal and State requirements

Except as otherwise specifically provided in this Act, nothing in this Act or an amendment made by this Act— (1)affects any permitting, monitoring, or enforcement obligation of the Administrator of the Environmental Protection Agency under the Clean Air Act (42 U.S.C. 7401 et seq.) or any remedy provided under that Act; (2)affects any requirement applicable to, or liability of, an electric generating facility under that Act; (3)requires a change in, affects, or limits any State law that regulates electric utility rates or charges, including prudence review under State law; or (4)precludes a State or political subdivision of a State from adopting and enforcing any requirement for the control or abatement of air pollution, except that a State or political subdivision may not adopt or enforce any emission standard or limitation that is less stringent than the requirements imposed under that Act.