06- 096 C.M.R. ch. 157, § 2

Current through 2024-51, December 18, 2024

Section 096-157-2 - Temporary Waiver of Enforcement

A.Authority to Temporarily Waive Enforcement. The Commissioner intends to exercise her inherent enforcement discretion to waive enforcement of violations of the CO₂ Budget Trading Program, 06-096 CMR Chapter 156, if the Commissioner finds that a CO₂ budget unit would have suffered immediate and irreparable harm, as defined in this Chapter, by complying with the CO₂ Budget Trading Program, and that such harm would have been the direct result of the CO₂ allowance price. Nothing in this Chapter limits the inherent enforcement discretion of the Commissioner

B.Process to Request A Temporary Waiver of Enforcement

(1) A CO₂ budget unit, also referred to in this chapter as the applicant, requesting a temporary waiver of enforcement shall submit the request in writing to the commissioner.

(2) The written request must provide the following:

(a) the name, location and relevant contact information sufficient for the Department to make immediate electronic or telephonic contact with the authorized representative and other representatives of the CO₂ budget unit;

(b) the specific time period for which the waiver is requested and a detailed justification for the requested time;

(c) evidence to demonstrate:

(i) that compliance with the provisions of Section 5 of CO₂ Budget Trading Program, 06-096 CMR Chapter 156, would have caused immediate and irreparable harm to the CO₂ budget unit's operations;

(ii) that such immediate and irreparable harm would have been a direct consequence of the price of allowances during a specified control period;

(iii) that the immediate and irreparable harm was beyond the control of the owner of a CO₂ budget unit;

(iv) that the immediate and irreparable harm to the CO₂ budget unit's operations would not have occurred but for the allowance price levels in effect during the control period;

(v) such other circumstances as the Commissioner deems relevant to the request; and

(vi) the authenticity and relevance of all information submitted by the applicant in support of its request.

(d) a detailed compliance plan indicating specifically the steps that will be taken by the CO₂ budget unit to achieve compliance as soon as practicable with Section 5 of CO₂ Budget Trading Program, 06-096 CMR Chapter 156, and the time required to complete each step.

(3) The Commissioner may request additional information from the applicant if necessary to review the request for a temporary waiver.

(4) If the written application demonstrates to the satisfaction of the Commissioner that a temporary waiver of enforcement is justified, the Commissioner may inform the applicant that he intends to waive enforcement of violations of the CO₂ Budget Trading Program that occurred during a specified period.

(5) If the time period for the requested waiver of enforcement exceeds 30 days, the Department will issue a notice for a 21-day public comment period to the major newspapers in the state.

(6) A decision of the Commissioner, in consultation with the State Attorney General and the chair of the Maine Public Utilities Commission, on a request for temporary waiver of enforcement under this Chapter is an exercise of the Commissioner's inherent enforcement discretion and is not subject to administrative or judicial review.

06- 096 C.M.R. ch. 157, § 2