W. Va. Code R. § 45-28-15

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 45-28-15 - Enforcement

15.1. Notwithstanding another person's liability, negligence, or false representation, a person who owns or operates a source, process, or process equipment and who participates in the generation, use, or trading of emission reduction credits under this rule shall be solely responsible to assure that any affected source, process, or process equipment under his or her ownership or control is in compliance with all applicable requirements.

15.2. A person who, without being notified by the director, discovers and provides a written notice of insufficient emissions reductions to the director stating that the overall emission reductions achieved by the emission reduction credits generated and registered, used, or traded by the person are not real, surplus, enforceable, permanent, and quantifiable may be provided a reconciliation period of not more than thirty (30) days, if all of the following conditions are met and the director determines that the person has acted in good faith:

15.2.a. The circumstances causing the emission reductions not to be real, surplus, enforceable, permanent, or quantifiable have not occurred before.

15.2.b. The notice of insufficient reductions is provided to the director within thirty (30) days of the discovery that the emission reductions are not real, surplus, enforceable, permanent, or quantifiable.

15.2.c. The notice of insufficient reductions shall include all of the following information:

15.2.c.1. A detailed description of how, and the date when, the insufficient reductions were discovered.

15.2.c.2. An explanation of the cause of the insufficient reductions.

15.2.c.3. A statement of the necessary corrective actions taken or to be taken and the time when the actions were completed or a schedule describing when the actions will be taken and completed.

15.2.c.4. A revised notice and certification of emission reduction credit generation.

15.2.c.5. Certification by a responsible official that, to the best of the responsible official=s knowledge, the information in the notice of insufficient reductions is true, accurate, and complete.

15.2.d. Upon submitting the notice of insufficient reductions, the person submitting the notice shall do one of the following, as applicable:

15.2.d.1. If emission reduction credits were or are being used or traded, then the person submitting the notice shall, within thirty (30) days, either implement and register emission reductions or obtain emission reduction credits sufficient to compensate for the number of emission reduction credits that were not real, surplus, enforceable, permanent, and quantifiable. Reconciliation of emission reduction credits shall be on the same basis, either tons per year or tons per ozone season, as credits found not to be real, surplus, enforceable, permanent, and quantifiable.

15.2.d.2. If emission reductions have been registered but the associated emission reduction credits have not been used or traded, then the person submitting the notice shall, concurrent with the submittal of the notice of insufficient reductions, submit a revised notice of emission reduction credit generation or written request for the director to withdraw the emission reduction credits from the emission trading registry.

15.3. If the director finds, without being provided a notice pursuant to subsection 15.2, that a person has registered emission reductions for the generation of emission reduction credits that are not real, surplus, enforceable, permanent, and quantifiable and the emission reduction credits have been or are being used or traded, then the person who generated and registered the insufficient emission reductions shall generate, or obtain, and donate emission reduction credits to the director in an amount equal to treble the number of emission reductions or emission reduction credits that were not real, surplus, enforceable, permanent, and quantifiable. If the director finds, after having been provided notice under subsection 15.2, that a person has registered emission reductions for the generation of emission reduction credits that are not real, surplus, enforceable, permanent, and quantifiable and the emission reduction credits have been or are being used or traded, the person who generated and registered the insufficient emission reductions may be required to generate, or obtain, and donate emission reduction credits to the director in an amount up to treble the number of emission reductions or emission reduction credits that were not real, surplus, enforceable, permanent, and quantifiable. Reconciliation of emission reduction credits shall be on the same basis, either tons per year or tons per ozone season, as credits found not to be real, surplus, enforceable, permanent, and quantifiable. Emission reduction credits donated to the director under this subsection shall be retired to assure realization of an air quality benefit and maintenance and attainment of national ambient air quality standards. A donation of emission reduction credits under this subsection shall not be considered to be a civil or criminal penalty. In addition to providing a donation under this rule, a person may be subject to civil and criminal enforcement actions, penalties, and imprisonment as provided under the Code.

15.4. Upon reconciliation of the emission reduction credits pursuant to subsection 15.2., the credits shall be considered real, surplus, enforceable, permanent and quantifiable.

15.5. The granting of a reconciliation period by the director under subsection 15.2 may be considered as a mitigating factor in the imposition or assessment of penalties by the director in any enforcement action, including the determination whether to require the generator to donate additional credits under subsection 15.3.

15.6. Emission reduction credits must be held prior to being used or traded. A person who fails to hold sufficient emission reduction credits to maintain compliance with the applicable requirement or requirements identified in the notice of emission reduction credit use shall be in violation of this rule.

15.7. If the director determines that a person has violated the provisions of the Code or this rule, then the director may take appropriate enforcement action as provided under the Code and this rule. In an enforcement proceeding, a person who generates and registers emission reductions shall have the burden of proof that the emission reductions generated and registered are real, surplus, enforceable, permanent, and quantifiable. A person who uses emission reduction credits shall have the burden of proof of due diligence with respect to verification of the validity and accuracy of the emission reduction credits used to comply with applicable emission requirements and the provisions of this rule.

W. Va. Code R. § 45-28-15