§77.6 Penalties for excess emissions of sulfur dioxide and nitrogen oxides.

(a)(1) If excess emissions of sulfur dioxide or nitrogen oxide occur at an affected unit during any year, the owners and operators of the affected unit shall pay, without demand, an excess emissions penalty, as calculated under paragraph (b) of this section.

(2) If one or more affected units governed by an approved NOX averaging plan under §76.11 of this chapter fail (after applying §76.11(d)(1)(ii)(C) of this chapter) to meet their respective alternative contemporaneous emission limitations or annual heat input limits, then excess emissions of nitrogen oxides occur during the year at each such unit. The sum of the excess emissions of nitrogen oxides of such units shall equal the amount determined under §76.13(b) of this chapter. The owners and operators of such units shall pay an excess emissions penalty, as calculated under paragraph (b) of this section using the sum of the excess emissions of nitrogen oxides of such units.

(3) Except as otherwise provided in this paragraph (a)(3), payment under paragraphs (a) (1) or (2) of this section shall be submitted to the Administrator by 30 days after the date on which the Administrator serves the designated representative a notice that the process of recordation set forth in §73.34(a) of this chapter is completed or by July 1 of the year after the year in which the excess emissions occurred, whichever date is earlier. Payment under paragraph (a)(1) of this section for any increase in excess emissions of sulfur dioxide determined after adjustments made under §72.91(b) of this chapter shall be submitted to the Administrator by 30 days after the date on which the Administrator serves the designated representative a notice that process set forth in §72.91(b) of this chapter is completed.

(b) Penalty formula. (1) The following formulas shall be used to determine the excess emissions penalty:

Penalty for excess emissions of sulfur dioxide = $2000/ton × annual adjustment factor × tons of excess emissions of sulfur dioxide.

Penalty for excess emissions of nitrogen oxides = $2000/ton × annual adjustment factor × tons of excess emissions of nitrogen oxides.

(i) The annual adjustment factor will be calculated as follows:

Annual adjustment factor = 1 + {[CPI(year) − CPI(1990)] / CPI(1990)}

where:

(A) "CPI(year)" is the Consumer Price Index as defined in §72.2 of this chapter and "year" is the year in which the unit had excess emissions.

(B) "CPI(1990)" is the Consumer Price Index for 1990, as defined in §72.2 of this chapter.

(ii) The Administrator will publish the annual adjustment factor in the FEDERAL REGISTER by October 15 of each year beginning in 1995.

(2) The penalty may be rounded to the nearest dollar after completing the calculation in paragraph (b)(1)(i) of this section.

(3) The penalty for excess emissions of sulfur dioxide shall be paid separately from the payment for excess emissions of nitrogen oxides. Each payment shall be accompanied by a document, in a format prescribed by the Administrator, indicating the unit for which the payment is made, whether the payment is for excess emissions of sulfur dioxide or nitrogen oxides, the number of tons of excess emissions, the penalty amount, and the check or money order number of the payment.

(c) If an excess emissions penalty due under this part is not paid on or before the applicable deadline under paragraph (a) of this section, the penalty shall be subject to interest charges in accordance with the Debt Collection Act (31 U.S.C. 3717). Interest shall begin to accrue on the date on which the Administrator mails, to the designated representative of the unit with excess emissions, a demand notice for the payment.

(d)(1) Except for wire transfers made in accordance with paragraph (d)(2) of this section, payments of penalties shall be made by money order, cashier's check, certified check, or U.S. Treasury check made payable to the "U.S. EPA."

(2) Payments made under paragraph (c)(1) of this section shall be mailed to the following address, unless the Administrator has notified the designated representative of a different address: U.S. EPA: Headquarters Accounting Operations Branch, Acid Rain Excess Emissions Penalties, P.O. Box 952491, St. Louis, MO 63195-2491.

(3) Payments of penalties of $25,000 or more may be made by wire transfer to the U.S. Treasury at the Federal Reserve Bank of New York.

(e) If the Administrator determines that overpayment has been made, he or she will refund the overpayment without interest, as promptly as administratively possible.

(f) Excess emissions in any year resulting directly from an order issued in that year under section 110(f) of the Act shall not be subject to the penalty payment requirements of this section; provided that the designated representative of any unit subject to such order shall advise the Administrator within 30 days of issuance of the order that the order will result in such excess emissions.

[58 FR 3757, Jan. 11, 1993, as amended at 60 FR 17131, Apr. 4, 1995; 62 FR 55487, Oct. 24, 1997]