506 
(d) PROCESS SOURCES.— 
(1) IN
GENERAL.—The Administrator shall establish a program 
under which the owner or operator of a process source that emits sul-
fur dioxide may elect to designate that source as an affected unit for 
the purpose of receiving allowances under this subdivision. 
(2) REGULATIONS.—The Administrator shall by regulation— 
(A) define the sources that may be designated; 
(B) specify the emission limitation; 
(C) specify the operating, emission baseline, and other data re-
quirements; 
(D) prescribe continuous emission monitoring system or other 
monitoring requirements; and 
(E) promulgate permit, reporting, and any other requirements 
necessary to implement the program under paragraph (1). 
(e) ALLOWANCES AND PERMITS.—The Administrator shall issue allow-
ances to an affected unit under this section in an amount equal to the emis-
sion limitation calculated under subsection (c) or (d), in accordance with 
section 233103 of this title. Such an allowance may be used in accordance 
with, and shall be subject to, section 233103 of this title. An affected source 
under this section shall be subject to the requirements of sections 233103, 
233108, 233110, 233111, 233112, and 233113 of this title. 
(f) LIMITATION.— 
(1) IN GENERAL.—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— 
(A) the reduced utilization or shutdown results from the re-
placement 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 subdivision; and 
(B) the designated unit’s allowances are transferred or carried 
forward for use at the other replacement unit or units. 
(2) NO ALLOWANCES IN AN AMOUNT GREATER THAN THE EMISSIONS 
RESULTING
FROM
OPERATION
OF
THE
SOURCE
IN
FULL
COMPLI-
ANCE.—In no case may the Administrator allocate to a source des-
ignated 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 division. 
(3) NO OPERATION OF UNIT IN VIOLATION OF OTHER REQUIRE-
MENTS.—No such allowances shall authorize operation of a unit in vio-
lation of any other requirements of this division. 
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507 
(g) IMPLEMENTATION.—The Administrator shall issue regulations to im-
plement this section. 
§ 233110. Excess emission penalty; excess emission offset 
(a) EXCESS EMISSIONS PENALTY.— 
(1) IN GENERAL.—The owner or operator of any unit or process 
source subject to the requirements of section 233103, 233105, 233106, 
or 233107 of this title, or designated under section 233109 of this title, 
that emits sulfur dioxide or nitrogen oxides for any calendar year in 
excess of the unit’s emission limitation requirement or, in the case of 
sulfur dioxide, of the allowances that the owner or operator holds for 
use for the unit for that calendar year, shall be liable for the payment 
of an excess emission penalty, except where the emissions are author-
ized pursuant to section 211110(d) of this title. 
(2) BASIS.—A penalty under paragraph (1) shall be calculated on 
the basis of the number of tons emitted in excess of the unit’s emission 
limitation requirement or, in the case of sulfur dioxide, of the allow-
ances the operator holds for use for the unit for that year, multiplied 
by $2,000. 
(3) PAYMENT.—A penalty under paragraph (1) shall be due and 
payable without demand to the Administrator as provided in regula-
tions issued by the Administrator. 
(4) LIABILITY UNDER OTHER SECTIONS.—Any penalty under this 
section shall not diminish the liability of the unit’s owner or operator 
for any fine, penalty, or assessment against a unit for the same viola-
tion under any other section of this division. 
(b) EXCESS EMISSION OFFSET.— 
(1) IN GENERAL.—The owner or operator of any affected source that 
emits sulfur dioxide during any calendar year in excess of the unit’s 
emission limitation requirement or of the allowances held for the unit 
for the calendar year shall be liable to offset the excess emission by 
an equal tonnage amount in the following calendar year, or such longer 
period as the Administrator may prescribe. 
(2) PLAN TO ACHIEVE OFFSETS.—The owner or operator of the 
source shall, within 60 days after the end of the year in which the ex-
cess emission occurred, submit to the Administrator, and to the State 
in which the source is located, a proposed plan to achieve the required 
offsets. On approval of the proposed plan by the Administrator, as sub-
mitted, modified, or conditioned, the plan shall be deemed to be a con-
dition of the operating permit for the unit without further review or 
revision of the permit. 
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(3) DEDUCTION OF ALLOWANCES.—In addition to requiring a plan 
under paragraph (2), the Administrator shall deduct allowances equal 
to the excess tonnage from those allocated for the source for the cal-
endar year, or succeeding years during which offsets are required, fol-
lowing the year in which the excess emission occurred. 
(c) PENALTY ADJUSTMENT.—The Administrator shall annually by regu-
lation adjust the penalty specified in subsection (a) for inflation, based on 
the Consumer Price Index as of November 15, 1990. 
(d) PROHIBITION.—It shall be unlawful for the owner or operator of any 
source liable for a penalty and offset under this section to fail to— 
(1) pay a penalty under subsection (a); 
(2) provide, and thereafter comply with, a compliance plan as re-
quired by subsection (b); or 
(3) offset an excess emission as required by subsection (b). 
(e) SAVINGS PROVISION.—Nothing in this subdivision shall limit or other-
wise affect the application of section 203104, 211113, 211114, or 211119 
of this title except as otherwise explicitly provided in this subdivision. 
§ 233111. Monitoring, reporting, and recordkeeping require-
ments 
(a) APPLICABILITY.— 
(1) IN GENERAL.—The owner or operator of an affected unit at an 
affected source shall— 
(A) install and operate a continuous emission monitoring system 
on each affected unit at the affected source; and 
(B) ensure the quality of the data for sulfur dioxide, nitrogen 
oxides, opacity, and volumetric flow at each affected unit. 
(2) REGULATIONS.— 
(A) IN GENERAL.—The Administrator shall by regulation speci-
fy the requirements for— 
(i) continuous emission monitoring systems; 
(ii) any alternative monitoring system that is demonstrated 
as providing information with the same precision, reliability, 
accessibility, and timeliness as that provided by a continuous 
emission monitoring system; and 
(iii) recordkeeping and reporting of information from sys-
tems described in clauses (i) and (ii). 
(B) CONTENTS.—The regulations may include limitations or the 
use of alternative compliance methods by units equipped with an 
alternative monitoring system as necessary to preserve the orderly 
functioning of the allowance system and ensure the emissions re-
ductions contemplated by this subdivision. 
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(3) SINGLE STACK.—Where 2 or more units utilize a single stack, 
a separate continuous emission monitoring system 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 com-
pliance determinations for each unit. 
(b) REQUIREMENTS.—The owner or operator of each affected unit that 
has not previously met the requirements of subsection (a) and section 
412(b) of the Clean Air Act (42 U.S.C. 7651k(b)) (as in effect before the 
repeal of that section) shall install and operate a continuous emission moni-
toring system, ensure the quality of the data, and keep records and reports 
in accordance with the regulations issued under subsection (a). On com-
mencement of commercial operation of each new utility unit, the unit shall 
comply with the requirements of subsection (a). 
(c) UNAVAILABILITY OF EMISSION DATA.— 
(1) IN GENERAL.—If continuous emission monitoring system data or 
data from an alternative monitoring system approved by the Adminis-
trator under subsection (a) are not available for any affected unit dur-
ing any period of a calendar year in which the data are required under 
this subdivision, and the owner or operator cannot provide information, 
satisfactory to the Administrator, on emissions during that period, the 
Administrator— 
(A) shall deem the unit to be operating in an uncontrolled man-
ner during the entire period for which the data were not available; 
and 
(B) shall by regulation prescribe means to calculate emissions 
for that period. 
(2) EXCESS EMISSION FEES AND OFFSETS.—The owner or operator 
shall be liable for excess emission fees and offsets under section 
233110 of this title in accordance with the regulations. 
(3) LIABILITY UNDER OTHER SECTIONS.—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 division. 
(d) PROHIBITION.—It shall be unlawful for the owner or operator of an 
affected source to operate a source without complying with the requirements 
of this section (including any regulations implementing this section). 
§ 233112. General compliance with other provisions 
Except as expressly provided, compliance with the requirements of this 
subdivision shall not exempt or exclude the owner or operator of an affected 
source from compliance with any other applicable requirements of this divi-
sion. 
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