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Title 40 Part 97

Title 40 → Chapter I → Subchapter C → Part 97

Electronic Code of Federal Regulations e-CFR

Title 40 Part 97

e-CFR data is current as of December 10, 2019

Title 40Chapter ISubchapter C → Part 97


Title 40: Protection of Environment


PART 97—FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2 TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2 TRADING PROGRAM


Contents

Subpart AAAAA—CSAPR NOX Annual Trading Program

§97.401   Purpose.
§97.402   Definitions.
§97.403   Measurements, abbreviations, and acronyms.
§97.404   Applicability.
§97.405   Retired unit exemption.
§97.406   Standard requirements.
§97.407   Computation of time.
§97.408   Administrative appeal procedures.
§97.409   [Reserved]
§97.410   State NOX Annual trading budgets, new unit set-asides, Indian country new unit set-asides, and variability limits.
§97.411   Timing requirements for CSAPR NOX Annual allowance allocations.
§97.412   CSAPR NOX Annual allowance allocations to new units.
§97.413   Authorization of designated representative and alternate designated representative.
§97.414   Responsibilities of designated representative and alternate designated representative.
§97.415   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.416   Certificate of representation.
§97.417   Objections concerning designated representative and alternate designated representative.
§97.418   Delegation by designated representative and alternate designated representative.
§97.419   [Reserved]
§97.420   Establishment of compliance accounts, assurance accounts, and general accounts.
§97.421   Recordation of CSAPR NOX Annual allowance allocations and auction results.
§97.422   Submission of CSAPR NOX Annual allowance transfers.
§97.423   Recordation of CSAPR NOX Annual allowance transfers.
§97.424   Compliance with CSAPR NOX Annual emissions limitation.
§97.425   Compliance with CSAPR NOX Annual assurance provisions.
§97.426   Banking.
§97.427   Account error.
§97.428   Administrator's action on submissions.
§97.429   [Reserved]
§97.430   General monitoring, recordkeeping, and reporting requirements.
§97.431   Initial monitoring system certification and recertification procedures.
§97.432   Monitoring system out-of-control periods.
§97.433   Notifications concerning monitoring.
§97.434   Recordkeeping and reporting.
§97.435   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Subpart BBBBB—CSAPR NOX Ozone Season Group 1 Trading Program

§97.501   Purpose.
§97.502   Definitions.
§97.503   Measurements, abbreviations, and acronyms.
§97.504   Applicability.
§97.505   Retired unit exemption.
§97.506   Standard requirements.
§97.507   Computation of time.
§97.508   Administrative appeal procedures.
§97.509   [Reserved]
§97.510   State NOX Ozone Season Group 1 trading budgets, new unit set-asides, Indian country new unit set-asides, and variability limits.
§97.511   Timing requirements for CSAPR NOX Ozone Season Group 1 allowance allocations.
§97.512   CSAPR NOX Ozone Season Group 1 allowance allocations to new units.
§97.513   Authorization of designated representative and alternate designated representative.
§97.514   Responsibilities of designated representative and alternate designated representative.
§97.515   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.516   Certificate of representation.
§97.517   Objections concerning designated representative and alternate designated representative.
§97.518   Delegation by designated representative and alternate designated representative.
§97.519   [Reserved]
§97.520   Establishment of compliance accounts, assurance accounts, and general accounts.
§97.521   Recordation of CSAPR NOX Ozone Season Group 1 allowance allocations and auction results.
§97.522   Submission of CSAPR NOX Ozone Season Group 1 allowance transfers.
§97.523   Recordation of CSAPR NOX Ozone Season Group 1 allowance transfers.
§97.524   Compliance with CSAPR NOX Ozone Season Group 1 emissions limitation.
§97.525   Compliance with CSAPR NOX Ozone Season Group 1 assurance provisions.
§97.526   Banking.
§97.527   Account error.
§97.528   Administrator's action on submissions.
§97.529   [Reserved]
§97.530   General monitoring, recordkeeping, and reporting requirements.
§97.531   Initial monitoring system certification and recertification procedures.
§97.532   Monitoring system out-of-control periods.
§97.533   Notifications concerning monitoring.
§97.534   Recordkeeping and reporting.
§97.535   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Subpart CCCCC—CSAPR SO2 Group 1 Trading Program

§97.601   Purpose.
§97.602   Definitions.
§97.603   Measurements, abbreviations, and acronyms.
§97.604   Applicability.
§97.605   Retired unit exemption.
§97.606   Standard requirements.
§97.607   Computation of time.
§97.608   Administrative appeal procedures.
§97.609   [Reserved]
§97.610   State SO2 Group 1 trading budgets, new unit set-asides, Indian country new unit set-asides, and variability limits.
§97.611   Timing requirements for CSAPR SO2 Group 1 allowance allocations.
§97.612   CSAPR SO2 Group 1 allowance allocations to new units.
§97.613   Authorization of designated representative and alternate designated representative.
§97.614   Responsibilities of designated representative and alternate designated representative.
§97.615   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.616   Certificate of representation.
§97.617   Objections concerning designated representative and alternate designated representative.
§97.618   Delegation by designated representative and alternate designated representative.
§97.619   [Reserved]
§97.620   Establishment of compliance accounts, assurance accounts, and general accounts.
§97.621   Recordation of CSAPR SO2 Group 1 allowance allocations and auction results.
§97.622   Submission of CSAPR SO2 Group 1 allowance transfers.
§97.623   Recordation of CSAPR SO2 Group 1 allowance transfers.
§97.624   Compliance with CSAPR SO2 Group 1 emissions limitation.
§97.625   Compliance with CSAPR SO2 Group 1 assurance provisions.
§97.626   Banking.
§97.627   Account error.
§97.628   Administrator's action on submissions.
§97.629   [Reserved]
§97.630   General monitoring, recordkeeping, and reporting requirements.
§97.631   Initial monitoring system certification and recertification procedures.
§97.632   Monitoring system out-of-control periods.
§97.633   Notifications concerning monitoring.
§97.634   Recordkeeping and reporting.
§97.635   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Subpart DDDDD—CSAPR SO2 Group 2 Trading Program

§97.701   Purpose.
§97.702   Definitions.
§97.703   Measurements, abbreviations, and acronyms.
§97.704   Applicability.
§97.705   Retired unit exemption.
§97.706   Standard requirements.
§97.707   Computation of time.
§97.708   Administrative appeal procedures.
§97.709   [Reserved]
§97.710   State SO2 Group 2 trading budgets, new unit set-asides, Indian country new unit set-asides, and variability limits.
§97.711   Timing requirements for CSAPR SO2 Group 2 allowance allocations.
§97.712   CSAPR SO2 Group 2 allowance allocations to new units.
§97.713   Authorization of designated representative and alternate designated representative.
§97.714   Responsibilities of designated representative and alternate designated representative.
§97.715   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.716   Certificate of representation.
§97.717   Objections concerning designated representative and alternate designated representative.
§97.718   Delegation by designated representative and alternate designated representative.
§97.719   [Reserved]
§97.720   Establishment of compliance accounts, assurance accounts, and general accounts.
§97.721   Recordation of CSAPR SO2 Group 2 allowance allocations and auction results.
§97.722   Submission of CSAPR SO2 Group 2 allowance transfers.
§97.723   Recordation of CSAPR SO2 Group 2 allowance transfers.
§97.724   Compliance with CSAPR SO2 Group 2 emissions limitation.
§97.725   Compliance with CSAPR SO2 Group 2 assurance provisions.
§97.726   Banking.
§97.727   Account error.
§97.728   Administrator's action on submissions.
§97.729   [Reserved]
§97.730   General monitoring, recordkeeping, and reporting requirements.
§97.731   Initial monitoring system certification and recertification procedures.
§97.732   Monitoring system out-of-control periods.
§97.733   Notifications concerning monitoring.
§97.734   Recordkeeping and reporting.
§97.735   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Subpart EEEEE—CSAPR NOX Ozone Season Group 2 Trading Program

§97.801   Purpose.
§97.802   Definitions.
§97.803   Measurements, abbreviations, and acronyms.
§97.804   Applicability.
§97.805   Retired unit exemption.
§97.806   Standard requirements.
§97.807   Computation of time.
§97.808   Administrative appeal procedures.
§97.809   [Reserved]
§97.810   State NOX Ozone Season Group 2 trading budgets, new unit set-asides, Indian country new unit set-asides, and variability limits.
§97.811   Timing requirements for CSAPR NOX Ozone Season Group 2 allowance allocations.
§97.812   CSAPR NOX Ozone Season Group 2 allowance allocations to new units.
§97.813   Authorization of designated representative and alternate designated representative.
§97.814   Responsibilities of designated representative and alternate designated representative.
§97.815   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.816   Certificate of representation.
§97.817   Objections concerning designated representative and alternate designated representative.
§97.818   Delegation by designated representative and alternate designated representative.
§97.819   [Reserved]
§97.820   Establishment of compliance accounts, assurance accounts, and general accounts.
§97.821   Recordation of CSAPR NOX Ozone Season Group 2 allowance allocations and auction results.
§97.822   Submission of CSAPR NOX Ozone Season Group 2 allowance transfers.
§97.823   Recordation of CSAPR NOX Ozone Season Group 2 allowance transfers.
§97.824   Compliance with CSAPR NOX Ozone Season Group 2 emissions limitation.
§97.825   Compliance with CSAPR NOX Ozone Season Group 2 assurance provisions.
§97.826   Banking.
§97.827   Account error.
§97.828   Administrator's action on submissions.
§97.829   [Reserved]
§97.830   General monitoring, recordkeeping, and reporting requirements.
§97.831   Initial monitoring system certification and recertification procedures.
§97.832   Monitoring system out-of-control periods.
§97.833   Notifications concerning monitoring.
§97.834   Recordkeeping and reporting.
§97.835   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Subpart FFFFF—Texas SO2 Trading Program

§97.901   Purpose.
§97.902   Definitions.
§97.903   Measurements, abbreviations, and acronyms.
§97.904   Applicability.
§97.905   Retired unit exemptions.
§97.906   General provisions.
§97.907   Computation of time.
§97.908   Administrative appeal procedures.
§97.909   [Reserved]
§97.910   Texas SO2 Trading Program and Supplemental Allowance Pool Budgets.
§97.911   Texas SO2 Trading Program allowance allocations.
§97.912   Texas SO2 Trading Program Supplemental Allowance Pool.
§97.913   Authorization of designated representative and alternate designated representative.
§97.914   Responsibilities of designated representative and alternate designated representative.
§97.915   Changing designated representative and alternate designated representative; changes in owners and operators; changes in units at the source.
§97.916   Certificate of representation.
§97.917   Objections concerning designated representative and alternate designated representative.
§97.918   Delegation by designated representative and alternate designated representative.
§97.919   [Reserved]
§97.920   Establishment of compliance accounts and general accounts.
§97.921   Recordation of Texas SO2 Trading Program allowance allocations.
§97.922   Submission of Texas SO2 Trading Program allowance transfers.
§97.923   Recordation of Texas SO2 Trading Program allowance transfers.
§97.924   Compliance with Texas SO2 Trading Program emissions limitations.
§97.925   [Reserved]
§97.926   Banking.
§97.927   Account error.
§97.928   Administrator's action on submissions.
§97.929   [Reserved]
§97.930   General monitoring, recordkeeping, and reporting requirements.
§97.931   Initial monitoring system certification and recertification procedures.
§97.932   Monitoring system out-of-control periods.
§97.933   Notifications concerning monitoring.
§97.934   Recordkeeping and reporting.
§97.935   Petitions for alternatives to monitoring, recordkeeping, or reporting requirements.

Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et seq.

Source: 65 FR 2727, Jan. 18, 2000, unless otherwise noted. 71 FR 25396, 25422, and 25443, Apr. 28, 2006

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Subpart A—NOX Budget Trading Program General Provisions

§97.1   Purpose.

This part establishes general provisions and the applicability, permitting, allowance, excess emissions, monitoring, and opt-in provisions for the federal NOX Budget Trading Program, under section 126 of the CAA and §52.34 of this chapter, as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.

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§97.2   Definitions.

The terms used in this part shall have the meanings set forth in this section as follows:

Account number means the identification number given by the Administrator to each NOX Allowance Tracking System account.

Acid Rain emissions limitation means, as defined in §72.2 of this chapter, a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program under title IV of the Clean Air Act.

Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.

Allocate or allocation means, with regard to NOX allowances, the determination by the Administrator of the number of NOX allowances to be initially credited to a NOX Budget unit or an allocation set-aside.

Automated data acquisition and handling system or DAHS means that component of the CEMS, or other emissions monitoring system approved for use under subpart H of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by subpart H of this part.

Boiler means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.

Combined cycle system means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.

Combustion turbine means an enclosed fossil or other fuel-fired device that is comprised of a compressor, a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

Commence commercial operation means, with regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation. Except as provided in §97.4(b), §97.5, or subpart I of this part, for a unit that is a NOX Budget unit under §97.4(a) on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in §97.4(b), §97.5, or subpart I of this part, for a unit that is not a NOX Budget unit under §97.4(a) on the date the unit commences commercial operation, the date the unit becomes a NOX Budget unit under §97.4(a) shall be the unit's date of commencement of commercial operation.

Commence operation means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. Except as provided in §97.4(b), §97.5, or subpart I of this part for a unit that is a NOX Budget unit under §97.4(a) on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in §97.4(b), §97.5, or subpart I of this part, for a unit that is not a NOX Budget unit under §97.4(a) on the date of commencement of operation, the date the unit becomes a NOX Budget unit under §97.4(a) shall be the unit's date of commencement of operation.

Common stack means a single flue through which emissions from two or more units are exhausted.

Compliance account means a NOX Allowance Tracking System account, established by the Administrator for a NOX Budget unit under subpart F of this part, in which the NOX allowance allocations for the unit are initially recorded and in which are held NOX allowances available for use by the unit for a control period for the purpose of meeting the unit's NOX Budget emissions limitation.

Continuous emission monitoring system or CEMS means the equipment required under subpart H of this part to sample, analyze, measure, and provide, by means of readings taken at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides (NOX) emissions, stack gas volumetric flow rate or stack gas moisture content (as applicable), in a manner consistent with part 75 of this chapter. The following are the principal types of continuous emission monitoring systems required under subpart H of this part:

(1) A flow monitoring system, consisting of a stack flow rate monitor and an automated DAHS. A flow monitoring system provides a permanent, continuous record of stack gas volumetric flow rate, in units of standard cubic feet per hour (scfh);

(2) A nitrogen oxides concentration monitoring system, consisting of a NOX pollutant concentration monitor and an automated DAHS. A NOX concentration monitoring system provides a permanent, continuous record of NOX emissions in units of parts per million (ppm);

(3) A nitrogen oxides emission rate (or NOX-diluent) monitoring system, consisting of a NOX pollutant concentration monitor, a diluent gas (CO2 or O2) monitor, and an automated DAHS. A NOX concentration monitoring system provides a permanent, continuous record of: NOX concentration in units of parts per million (ppm), diluent gas concentration in units of percent O2 or CO2 (percent O2 or CO2), and NOX emission rate in units of pounds per million British thermal units (lb/mmBtu); and

(4) A moisture monitoring system, as defined in §75.11(b)(2) of this chapter. A moisture monitoring system provides a permanent, continuous record of the stack gas moisture content, in units of percent H2O (percent H2O).

Control period means the period beginning May 1 of a year and ending on September 30 of the same year, inclusive.

Electricity for sale under firm contract to the grid means electricity for sale where the capacity involved is intended to be available at all times during the period covered by a guaranteed commitment to deliver, even under adverse conditions.

Emissions means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the NOX authorized account representative and as determined by the Administrator in accordance with subpart H of this part.

Energy Information Administration means the Energy Information Administration of the United States Department of Energy.

Excess emissions means any tonnage of nitrogen oxides emitted by a NOX Budget unit during a control period that exceeds the NOX Budget emissions limitation for the unit.

Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil fuel fired means, with regard to a unit:

(1) For units that commenced operation before January 1, 1996, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1995, or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995;

(2) For units that commenced operation on or after January 1, 1996 and before January 1, 1997, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1996; or

(3) For units that commence operation on or after January 1, 1997:

(i) The combination of fossil fuel, alone or in combustion with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year; or

(ii) The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year, provided that the unit shall be “fossil fuel-fired” as of the date, during such year, on which the unit begins combusting fossil fuel.

General account means a NOX Allowance Tracking System account, established under subpart F of this part, that is not a compliance account or an overdraft account.

Generator means a device that produces electricity.

Heat input means, with regard to a specified period to time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the Administrator by the NOX authorized account representative and as determined by the Administrator in accordance with subpart H of this part. Heat input does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

Heat input rate means the amount of heat input (in mmBtu) divided by unit operating time (in hr) or, with regard to a specific fuel, the amount of heat input attributed to the fuel (in mmBtu) divided by the unit operating time (in hr) during which the unit combusts the fuel.

Life-of-the-unit, firm power contractual arrangement means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy from any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

(1) For the life of the unit;

(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

(3) For a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

Maximum design heat input means the ability of a unit to combust a stated maximum amount of fuel per hour (in mmBtu/hr) on a steady state basis, as determined by the physical design and physical characteristics of the unit.

Maximum potential hourly heat input means an hourly heat input (in mmBtu/hr) used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use appendix D of part 75 of this chapter to report heat input, this value should be calculated, in accordance with part 75 of this chapter, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with part 75 of this chapter, using the maximum potential flowrate and either the maximum carbon dioxide concentration (in percent CO2) or the minimum oxygen concentration (in percent O2).

Maximum potential NOX emission rate means the emission rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with section 3 of appendix F of part 75 of this chapter, using the maximum potential concentration of NOX under section 2 of appendix A of part 75 of this chapter, and either the maximum oxygen concentration (in percent O2) or the minimum carbon dioxide concentration (in percent CO2), under all operating conditions of the unit except for unit start up, shutdown, and upsets.

Maximum rated hourly heat input means a unit specific maximum hourly heat input (in mmBtu/hr) which is the higher of the manufacturer's maximum rated hourly heat input or the highest observed hourly heat input.

Monitoring system means any monitoring system that meets the requirements of subpart H of this part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.

Most stringent State or Federal NOX emissions limitation means the lowest NOX emissions limitation (in lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.

Nameplate capacity means the maximum electrical generating output (in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the United States Department of Energy standards.

Non-title V permit means a federally enforceable permit administered by the permitting authority pursuant to the Clean Air Act and regulatory authority under the Clean Air Act, other than title V of the Clean Air Act and part 70 or 71 of this chapter.

NOX allowance means a limited authorization by the Administrator under the NOX Budget Trading Program to emit up to one ton of nitrogen oxides during the control period of the specified year or of any year thereafter, except as provided under §97.54(f). No provision of the NOX Budget Trading Program, the NOX Budget permit application, the NOX Budget permit, or an exemption under §97.4(b) or §97.5 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization, which does not constitute a property right. For purposes of all sections of this part except §97.40, §97.41, §97.42, §97.43, or §97.88, “NOX allowance” also includes an authorization to emit up to one ton of nitrogen oxides during the control period of the specified year or of any year thereafter by the permitting authority or the Administrator in accordance with a State NOX Budget Trading Program established, and approved and administered by the Administrator, pursuant to §51.121 of this chapter.

NOX allowance deduction or deduct NOX allowances means the permanent withdrawal of NOX allowances by the Administrator from a NOX Allowance Tracking System compliance account or overdraft account to account for the number of tons of NOX emissions from a NOX Budget unit for a control period, determined in accordance with subparts H and F of this part, or for any other NOX allowance withdrawal requirement under this part.

NOX Allowance Tracking System means the system by which the Administrator records allocations, deductions, and transfers of NOX allowances under the NOX Budget Trading Program.

NOX Allowance Tracking System account means an account in the NOX Allowance Tracking System established by the Administrator for purposes of recording the allocation, holding, transferring, or deducting of NOX allowances.

NOX allowance transfer deadline means midnight of November 30 or, if November 30 is not a business day, midnight of the first business day thereafter and is the deadline by which NOX allowances must be submitted for recordation in a NOX Budget unit's compliance account, or the overdraft account of the source where the unit is located, in order to meet the unit's NOX Budget emissions limitation for the control period immediately preceding such deadline.

NOX allowances held or hold NOX allowances means the NOX allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with subparts F and G of this part, in a NOX Allowance Tracking System account.

NOX authorized account representative means, for a NOX Budget source or NOX Budget unit at the source, the natural person who is authorized by the owners and operators of the source and all NOX Budget units at the source, in accordance with subpart B of this part, to represent and legally bind each owner and operator in matters pertaining to the NOX Budget Trading Program or, for a general account, the natural person who is authorized, in accordance with subpart F of this part, to transfer or otherwise dispose of NOX allowances held in the general account.

NOX Budget emissions limitation means, for a NOX Budget unit, the tonnage equivalent of the NOX allowances available for compliance deduction for the unit under §97.54(a), (b), (e), and (f) in a control period adjusted by deductions of such NOX allowances to account for actual heat input under §97.42(e) for the control period or to account for excess emissions for a prior control period under §97.54(d) or to account for withdrawal from the NOX Budget Trading Program, or for a change in regulatory status, of a NOX Budget opt-in unit under §97.86 or §97.87.

NOX Budget opt-in permit means a NOX Budget permit covering a NOX Budget opt-in unit.

NOX Budget opt-in unit means a unit that has been elected to become a NOX Budget unit under the NOX Budget Trading Program and whose NOX Budget opt-in permit has been issued and is in effect under subpart I of this part.

NOX Budget permit means the legally binding and federally enforceable written document, or portion of such document, issued by the permitting authority under this part, including any permit revisions, specifying the NOX Budget Trading Program requirements applicable to a NOX Budget source, to each NOX Budget unit at the NOX Budget source, and to the owners and operators and the NOX authorized account representative of the NOX Budget source and each NOX Budget unit.

NOX Budget source means a source that includes one or more NOX Budget units.

NOX Budget Trading Program means a multistate nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with this part and pursuant to §52.34 of this chapter, as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.

NOX Budget unit means a unit that is subject to the NOX Budget emissions limitation under §97.4(a) or §97.80.

Operating means, with regard to a unit under §§97.22(d)(2) and 97.80, having documented heat input for more than 876 hours in the 6 months immediately preceding the submission of an application for an initial NOX Budget permit under §97.83(a). The unit's documented heat input will be determined in accordance with part 75 of this chapter if the unit was otherwise subject to the requirements of part 75 of this chapter during that 6-month period or will be based on the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of part 75 of this chapter during that 6-month period.

Operator means any person who operates, controls, or supervises a NOX Budget unit, a NOX Budget source, or a unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted and not denied or withdrawn and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

Opt-in means to be elected to become a NOX Budget unit under the NOX Budget Trading Program through a final, effective NOX Budget opt-in permit under subpart I of this part.

Overdraft account means the NOX Allowance Tracking System account, established by the Administrator under subpart F of this part, for each NOX Budget source where there are two or more NOX Budget units.

Owner means any of the following persons:

(1) Any holder of any portion of the legal or equitable title in a NOX Budget unit or in a unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted and not denied or withdrawn; or

(2) Any holder of a leasehold interest in a NOX Budget unit or in a unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted and not denied or withdrawn; or

(3) Any purchaser of power from a NOX Budget unit or from a unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted and not denied or withdrawn under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the NOX Budget unit or the unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted and not denied or withdrawn; or

(4) With respect to any general account, any person who has an ownership interest with respect to the NOX allowances held in the general account and who is subject to the binding agreement for the NOX authorized account representative to represent that person's ownership interest with respect to the NOX allowances.

Percent monitor data availability means, for purposes of §97.43 (a)(1) and §97.84(b), total unit operating hours for which quality-assured data were recorded under subpart H of this part in a control period, divided by the total number of unit operating hours in the control period, and multiplied by 100 percent.

Permitting authority means the State air pollution control agency, local agency, other State agency, or other agency authorized by the Administrator to issue or revise permits to meet the requirements of the NOX Budget Trading Program in accordance with subpart C of this part.

Potential electrical output capacity means 33 percent of a unit's maximum design heat input.

Receive or receipt of means, when referring to the permitting authority or the Administrator, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the permitting authority or the Administrator in the regular course of business.

Recordation, record, or recorded means, with regard to NOX allowances, the movement of NOX allowances by the Administrator from one NOX Allowance Tracking System account to another, for purposes of allocation, transfer, or deduction.

Reference method means any direct test method of sampling and analyzing for an air pollutant as specified in appendix A of part 60 of this chapter.

Serial number means, when referring to NOX allowances, the unique identification number assigned to each NOX allowance by the Administrator, under §97.53(c).

Source means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any regulated air pollutant under the Clean Air Act. For purposes of section 502(c) of the Clean Air Act, a “source,” including a “source” with multiple units, shall be considered a single “facility.”

State means one of the 48 contiguous States or a portion thereof or the District of Columbia that is specified in §52.34 of this chapter and in which are located units for which the Administrator makes an effective finding under §52.34 of this chapter.

Submit or serve means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

(1) In person;

(2) By United States Postal Service; or

(3) By other means of dispatch or transmission and delivery. Compliance with any “submission,” “service,” or “mailing” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

Title V operating permit means a permit issued under title V of the Clean Air Act and part 70 or part 71 of this chapter.

Title V operating permit regulations means the regulations that the Administrator has approved or issued as meeting the requirements of title V of the Clean Air Act and part 70 or 71 of this chapter.

Ton or tonnage means any “short ton” (i.e., 2,000 pounds). For the purpose of determining compliance with the NOX Budget emissions limitation, total tons for a control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with subpart H of this part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons.

Unit means a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

Unit operating day means a calendar day in which a unit combusts any fuel.

Unit operating hour or hour of unit operation means any hour (or fraction of an hour) during which a unit combusts any fuel.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21645, Apr. 21, 2004]

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§97.3   Measurements, abbreviations, and acronyms.

Measurements, abbreviations, and acronyms used in this part are defined as follows:

Btu-British thermal unit.

CO2-carbon dioxide.

hr-hour.

kW-kilowatt electrical.

kWh-kilowatt hour.

lb-pounds.

mmBtu-million Btu.

MWe-megawatt electrical.

NOX-nitrogen oxides.

O2-oxygen.

ton-2000 pounds.

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§97.4   Applicability.

(a) The following units in a State shall be a NOX Budget unit, and any source that includes one or more such units shall be a NOX Budget source, subject to the requirements of this part:

(1)(i) For units other than cogeneration units—

(A) For units commencing operation before January 1, 1997, a unit serving during 1995 or 1996 a generator—

(1) With a nameplate capacity greater than 25 MWe and

(2) Producing electricity for sale under a firm contract to the electric grid.

(B) For units commencing operation in 1997 or 1998, a unit serving during 1997 or 1998 a generator—

(1) With a nameplate capacity greater than 25 MWe and

(2) Producing electricity for sale under a firm contract to the electric grid.

(C) For units commencing operation on or after January 1, 1999, a unit serving at any time a generator—

(1) With a nameplate capacity greater than 25 MWe and

(2) Producing electricity for sale.

(ii) For cogeneration units—

(A) For units commencing operation before January 1, 1997, a unit serving during 1995 or 1996 a generator with a nameplate capacity greater than 25 MWe and failing to qualify as an unaffected unit under §72.6(b)(4) of this chapter for 1995 or 1996 under the Acid Rain Program.

(B) For units commencing operation in 1997 or 1998, a unit serving during 1997 or 1998 a generator with a nameplate capacity grater than 25 MWe and failing to qualify as an unaffected unit under §72.6(b)(4) of this chapter for 1997 or 1998 under the Acid Rain Program.

(C) For units commencing operation on or after January 1, 1999, a unit serving at any time a generator with a nameplate capacity greater than 25 MWe and failing to qualify as an unaffected unit under §72.6(b)(4) of this chapter under the Acid Rain Program for any year.

(2)(i) For units other than cogeneration units—

(A) For units commencing operation before January 1, 1997, a unit—

(1) With a maximum design heat input greater than 250 mmBtu/hr and

(2) Not serving during 1995 or 1996 a generator producing electricity for sale under a firm contract to the electric grid.

(B) For units commencing operation in 1997 or 1998, a unit—

(1) With a maximum design heat input greater than 250 mmBtu/hr and

(2) Not serving during 1997 or 1998 a generator producing electricity for sale under a firm contract to the electric grid.

(C) For units commencing on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr:

(1) At no time serving a generator producing electricity for sale; or

(2) At any time serving a generator with a nameplate capacity of 25 MWe or less producing electricity for sale and with the potential to use no more than 50 percent of the potential electrical output capacity of the unit.

(ii) For cogeneration units—

(A) For units commencing operation before January 1, 1997, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under §72.6(b)(4) of this chapter under the Acid Rain Program for 1995 and 1996.

(B) For units commencing operation in 1997 or 1998, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under §72.6(b)(4) under the Acid Rain Program for 1997 and 1998.

(C) For units commencing on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under §72.6(b)(4) of this chapter under the Acid Rain Program for each year.

(b)(1) Notwithstanding paragraph (a) of this section, a unit under paragraph (a)(1) or (a)(2) of this section that has a federally enforceable permit that restricts the unit to combusting only natural gas or fuel oil (as defined in §75.2 of this chapter) during a control period includes a NOX emission limitation restricting NOX emissions during a control period to 25 tons or less, and includes the special provisions in paragraph (b)(4) of this section shall be exempt from the requirements of the NOX Budget Trading Program, except for the provisions of this paragraph (b), §97.2, §97.3, §97.4(a), §97.7, and subparts E, F, and G of this part. The NOX emission limitation under this paragraph (b)(1) shall restrict NOX emissions during the control period by limiting unit operating hours. The restriction on unit operating hours shall be calculated by dividing 25 tons by the unit's maximum potential hourly NOX mass emissions, which shall equal the unit's maximum rated hourly heat input multiplied by the highest default NOX emission rate otherwise applicable to the unit under §75.19 of this chapter.

(2) The exemption under paragraph (b)(1) of this section shall become effective as follows:

(i) The exemption shall become effective on the date on which the NOX emission limitation and the special provisions in the permit under paragraph (b)(1) of this section become final; or

(ii) If the NOX emission limitation and the special provisions in the permit under paragraph (b)(1) of this section become final during a control period and after the first date on which the unit operates during such control period, then the exemption shall become effective on May 1 of such control period, provided that such NOX emission limitation and the special provisions apply to the unit as of such first date of operation. If such NOX emission limitation and special provisions do not apply to the unit as of such first date of operation, then the exemption under paragraph (b)(1) of this section shall become effective on October 1 of the year during which such NOX emission limitation and the special provisions become final.

(3) The permitting authority that issues a federally enforceable permit under paragraph (b)(1) of this section for a unit under paragraph (a)(1) or (a)(2) of this section will provide the Administrator written notice of the issuance of such permit and, upon request, a copy of the permit.

(4) Special provisions. (i) A unit exempt under paragraph (b)(1) of this section shall comply with the restriction on fuel use and unit operating hours described in paragraph (b)(1) of this section during the control period in each year.

(ii) The Administrator will allocate NOX allowances to the unit under §§97.41(a) through (c) and 97.42(a) through (c). For each control period for which the unit is allocated NOX allowances under §§97.41(a) through (c) and 97.42(a) through (c):

(A) The owners and operators of the unit must specify a general account, in which the Administrator will record the NOX allowances; and

(B) After the Administrator records a NOX allowance allocations under §§97.41(a) through (c) and 97.42(a) through (c), the Administrator will deduct, from the general account under paragraph (b)(4)(ii)(A) of this section, NOX allowances that are allocated for the same or a prior control period as the NOX allowances allocated to the unit under §§97.41(a) through (c) and 97.42(a) through (c) and that equal the NOX emission limitation (in tons of NOX) on which the unit's exemption under paragraph (b)(1) of this section is based. The NOX authorized account representative shall ensure that such general account contains the NOX allowances necessary for completion of such deduction.

(iii) A unit exempt under this paragraph (b) shall report hours of unit operation during the control period in each year to the permitting authority by November 1 of that year.

(iv) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (b)(1) of this section shall retain, at the source that includes the unit, records demonstrating that the conditions of the federally enforceable permit under paragraph (b)(1) of this section were met, including the restriction on fuel use or unit operating hours. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit met the restriction on fuel use or unit operating hours.

(v) The owners and operators and, to the extent applicable, the NOX authorized account representative of a unit exempt under paragraph (b)(1) of this section shall comply with the requirements of the NOX Budget Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

(vi) On the earlier of the following dates, a unit exempt under paragraph (b)(1) of this section shall lose its exemption:

(A) The date on which the restriction on fuel use or unit operating hours described in paragraph (b)(1) of this section is removed from the unit's federally enforceable permit or otherwise becomes no longer applicable to any control period starting in 2004; or

(B) The first date on which the unit fails to comply, or with regard to which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on fuel use or unit operating hours described in paragraph (b)(1) of this section during any control period starting in 2004.

(vii) A unit that loses its exemption in accordance with paragraph (b)(4)(vi) of this section shall be subject to the requirements of this part. For the purpose of applying permitting requirements under subpart C of this part, allocating allowances under subpart E of this part, and applying monitoring requirements under subpart H of this part, the unit shall be treated as commencing operation and, if the unit is covered by paragraph (a)(1) of this section, commencing commercial operation on the date the unit loses its exemption.

(viii) A unit that is exempt under paragraph (b)(1) of this section is not eligible to be a NOX Budget opt-in unit under subpart I of this part.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002; 69 FR 21645, Apr. 21, 2004]

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§97.5   Retired unit exemption.

(a) This section applies to any NOX Budget unit, other than a NOX Budget opt-in unit, that is permanently retired.

(b)(1) Any NOX Budget unit, other than a NOX Budget opt-in unit, that is permanently retired shall be exempt from the NOX Budget Trading Program, except for the provisions of this section, §97.2, §97.3, §97.4, §97.7, and subparts E, F, and G of this part.

(2) The exemption under paragraph (b)(1) of this section shall become effective the day on which the unit is permanently retired. Within 30 days of permanent retirement, the NOX authorized account representative (authorized in accordance with subpart B of this part) shall submit a statement to the permitting authority otherwise responsible for administering any NOX Budget permit for the unit. The NOX authorized account representative shall submit a copy of the statement to the Administrator. The statement shall state, in a format prescribed by the permitting authority, that the unit is permanently retired and will comply with the requirements of paragraph (c) of this section.

(3) After receipt of the notice under paragraph (b)(2) of this section, the permitting authority will amend any permit covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraphs (b)(1) and (c) of this section.

(c) Special provisions. (1) A unit exempt under this section shall not emit any nitrogen oxides, starting on the date that the exemption takes effect.

(2) The Administrator will allocate NOX allowances under subpart E of this part to a unit exempt under this section. For each control period for which the unit is allocated one or more NOX allowances, the owners and operators of the unit shall specify a general account, in which the Administrator will record such NOX allowances.

(3) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

(4) The owners and operators and, to the extent applicable, the NOX authorized account representative of a unit exempt under this section shall comply with the requirements of the NOX Budget Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

(5)(i) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the NOX authorized account representative of the source submits a complete NOX Budget permit application under §97.22 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the unit resumes operation.

(ii) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a non-title V permit shall not resume operation unless the NOX authorized account representative of the source submits a complete NOX Budget permit application under §97.22 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the unit is to first resume operation.

(6) On the earlier of the following dates, a unit exempt under paragraph (b) of this section shall lose its exemption:

(i) The date on which the NOX authorized account representative submits a NOX Budget permit application under paragraph (c)(5) of this section;

(ii) The date on which the NOX authorized account representative is required under paragraph (c)(5) of this section to submit a NOX Budget permit application; or

(iii) The date on which the unit resumes operation, if the unit is not required to submit a NOX permit application.

(7) For the purpose of applying monitoring requirements under subpart H of this part, a unit that loses its exemption under this section shall be treated as a unit that commences operation or commercial operation on the first date on which the unit resumes operation.

(8) A unit that is exempt under this section is not eligible to be a NOX Budget opt-in unit under subpart I of this part.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002; 69 FR 21646, Apr. 21, 2004]

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§97.6   Standard requirements.

(a) Permit requirements. (1) The NOX authorized account representative of each NOX Budget source required to have a federally enforceable permit and each NOX Budget unit required to have a federally enforceable permit at the source shall:

(i) Submit to the permitting authority a complete NOX Budget permit application under §97.22 in accordance with the deadlines specified in §97.21(b) and (c);

(ii) Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a NOX Budget permit application and issue or deny a NOX Budget permit.

(2) The owners and operators of each NOX Budget source required to have a federally enforceable permit and each NOX Budget unit required to have a federally enforceable permit at the source shall have a NOX Budget permit issued by the permitting authority and operate the unit in compliance with such NOX Budget permit.

(3) The owners and operators of a NOX Budget source that is not otherwise required to have a federally enforceable permit are not required to submit a NOX Budget permit application, and to have a NOX Budget permit, under subpart C of this part for such NOX Budget source.

(b) Monitoring requirements. (1) The owners and operators and, to the extent applicable, the NOX authorized account representative of each NOX Budget source and each NOX Budget unit at the source shall comply with the monitoring requirements of subpart H of this part.

(2) The emissions measurements recorded and reported in accordance with subpart H of this part shall be used to determine compliance by the unit with the NOX Budget emissions limitation under paragraph (c) of this section.

(c) Nitrogen oxides requirements. (1) The owners and operators of each NOX Budget source and each NOX Budget unit at the source shall hold NOX allowances available for compliance deductions under §97.54(a), (b), (e), or (f) as of the NOX allowance transfer deadline, in the unit's compliance account and the source's overdraft account in an amount not less than the total NOX emissions for the control period from the unit, as determined in accordance with subpart H of this part, plus any amount necessary to account for actual heat input under §97.42(e) for the control period or to account for excess emissions for a prior control period under §97.54(d) or to account for withdrawal from the NOX Budget Trading Program, or a change in regulatory status, of a NOX Budget opt-in unit under §97.86 or §97.87.

(2) Each ton of nitrogen oxides emitted in excess of the NOX Budget emissions limitation shall constitute a separate violation of this part, the Clean Air Act, and applicable State law.

(3) A NOX Budget unit shall be subject to the requirements under paragraph (c)(1) of this section starting on the later of May 31, 2004 or the date on which the unit commences operation.

(4) NOX allowances shall be held in, deducted from, or transferred among NOX Allowance Tracking System accounts in accordance with subparts E, F, G, and I of this part.

(5) A NOX allowance shall not be deducted, in order to comply with the requirements under paragraph (c)(1) of this section, for a control period in a year prior to the year for which the NOX allowance was allocated.

(6) A NOX allowance allocated by the Administrator under the NOX Budget Trading Program is a limited authorization to emit one ton of nitrogen oxides in accordance with the NOX Budget Trading Program. No provision of the NOX Budget Trading Program, the NOX Budget permit application, the NOX Budget permit, or an exemption under §97.4(b) or §97.5 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.

(7) A NOX allowance allocated by the Administrator under the NOX Budget Trading Program does not constitute a property right.

(8) Upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of a NOX allowance to or from a NOX Budget unit's compliance account or the overdraft account of the source where the unit is located is incorporated automatically in any NOX Budget permit of the NOX Budget unit.

(d) Excess emissions requirements. (1) The owners and operators of a NOX Budget unit that has excess emissions in any control period shall:

(i) Surrender the NOX allowances required for deduction under §97.54(d)(1); and

(ii) Pay any fine, penalty, or assessment or comply with any other remedy imposed under §97.54(d)(3).

(e) Recordkeeping and reporting requirements. (1) Unless otherwise provided, the owners and operators of the NOX Budget source and each NOX Budget unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 5 years, in writing by the permitting authority or the Administrator.

(i) The account certificate of representation under §97.13 for the NOX authorized account representative for the source and each NOX Budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation; provided that the certificate and documents shall be retained on site at the source beyond such 5-year period until such documents are superseded because of the submission of a new account certificate of representation under §97.13 changing the NOX authorized account representative.

(ii) All emissions monitoring information, in accordance with subpart H of this part; provided that to the extent that subpart H of this part provides for a 3-year period for recordkeeping, the 3-year period shall apply.

(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the NOX Budget Trading Program.

(iv) Copies of all documents used to complete a NOX Budget permit application and any other submission under the NOX Budget Trading Program or to demonstrate compliance with the requirements of the NOX Budget Trading Program.

(2) The NOX authorized account representative of a NOX Budget source and each NOX Budget unit at the source shall submit the reports and compliance certifications required under the NOX Budget Trading Program, including those under subpart D, H, or I of this part.

(f) Liability. (1) Any person who knowingly violates any requirement or prohibition of the NOX Budget Trading Program, a NOX Budget permit, or an exemption under §97.4(b) or §97.5 shall be subject to enforcement pursuant to applicable State or Federal law.

(2) Any person who knowingly makes a false material statement in any record, submission, or report under the NOX Budget Trading Program shall be subject to criminal enforcement pursuant to the applicable State or Federal law.

(3) No permit revision shall excuse any violation of the requirements of the NOX Budget Trading Program that occurs prior to the date that the revision takes effect.

(4) Each NOX Budget source and each NOX Budget unit shall meet the requirements of the NOX Budget Trading Program.

(5) Any provision of the NOX Budget Trading Program that applies to a NOX Budget source or the NOX authorized account representative of a NOX Budget source shall also apply to the owners and operators of such source and of the NOX Budget units at the source.

(6) Any provision of the NOX Budget Trading Program that applies to a NOX Budget unit or the NOX authorized account representative of a NOX budget unit shall also apply to the owners and operators of such unit. Except with regard to the requirements applicable to units with a common stack under subpart H of this part, the owners and operators and the NOX authorized account representative of one NOX Budget unit shall not be liable for any violation by any other NOX Budget unit of which they are not owners or operators or the NOX authorized account representative and that is located at a source of which they are not owners or operators or the NOX authorized account representative.

(g) Effect on other authorities. No provision of the NOX Budget Trading Program, a NOX Budget permit application, a NOX Budget permit, or an exemption under §97.4(b) or §97.5 shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the NOX authorized account representative of a NOX Budget source or NOX Budget unit from compliance with any other provision of the applicable, approved State implementation plan, a federally enforceable permit, or the Clean Air Act.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002]

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§97.7   Computation of time.

(a) Unless otherwise stated, any time period scheduled, under the NOX Budget Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

(b) Unless otherwise stated, any time period scheduled, under the NOX Budget Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

(c) Unless otherwise stated, if the final day of any time period, under the NOX Budget Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.

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Subpart B—NOX Authorized Account Representative for NOX Budget Sources

§97.10   Authorization and responsibilities of NOX authorized account representative.

(a) Except as provided under §97.11, each NOX Budget source, including all NOX Budget units at the source, shall have one and only one NOX authorized account representative, with regard to all matters under the NOX Budget Trading Program concerning the source or any NOX Budget unit at the source.

(b) The NOX authorized account representative of the NOX Budget source shall be selected by an agreement binding on the owners and operators of the source and all NOX Budget units at the source.

(c) Upon receipt by the Administrator of a complete account certificate of representation under §97.13, the NOX authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the NOX Budget source represented and each NOX Budget unit at the source in all matters pertaining to the NOX Budget Trading Program, not withstanding any agreement between the NOX authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the NOX authorized account representative by the permitting authority, the Administrator, or a court regarding the source or unit.

(d) No NOX Budget permit shall be issued, and no NOX Allowance Tracking System account shall be established for a NOX Budget unit at a source, until the Administrator has received a complete account certificate of representation under §97.13 for a NOX authorized account representative of the source and the NOX Budget units at the source.

(e) (1) Each submission under the NOX Budget Trading Program shall be submitted, signed, and certified by the NOX authorized account representative for each NOX Budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the NOX authorized account representative: “I am authorized to make this submission on behalf of the owners and operators of the NOX Budget sources or NOX Budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(2) The permitting authority and the Administrator will accept or act on a submission made on behalf of owner or operators of a NOX Budget source or a NOX Budget unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.

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§97.11   Alternate NOX authorized account representative.

(a) An account certificate of representation may designate one and only one alternate NOX authorized account representative who may act on behalf of the NOX authorized account representative. The agreement by which the alternate NOX authorized account representative is selected shall include a procedure for authorizing the alternate NOX authorized account representative to act in lieu of the NOX authorized account representative.

(b) Upon receipt by the Administrator of a complete account certificate of representation under §97.13, any representation, action, inaction, or submission by the alternate NOX authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NOX authorized account representative.

(c) Except in this section and §§97.10(a), 97.12, 97.13, and 97.51, whenever the term “NOX authorized account representative” is used in this part, the term shall be construed to include the alternate NOX authorized account representative.

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§97.12   Changing NOX authorized account representative and alternate NOX authorized account representative; changes in owners and operators.

(a) Changing NOX authorized account representative. The NOX authorized account representative may be changed at any time upon receipt by the Administrator of a superseding complete account certificate of representation under §97.13. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NOX authorized account representative prior to the time and date when the Administrator receives the superseding account certificate of representation shall be binding on the new NOX authorized account representative and the owners and operators of the NOX Budget source and the NOX Budget units at the source.

(b) Changing alternate NOX authorized account representative. The alternate NOX authorized account representative may be changed at any time upon receipt by the Administrator of a superseding complete account certificate of representation under §97.13. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate NOX authorized account representative prior to the time and date when the Administrator receives the superseding account certificate of representation shall be binding on the new alternate NOX authorized account representative and the owners and operators of the NOX Budget source and the NOX Budget units at the source.

(c) Changes in owners and operators. (1) In the event a new owner or operator of a NOX Budget source or a NOX Budget unit is not included in the list of owners and operators submitted in the account certificate of representation under §97.13, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the NOX authorized account representative and any alternate NOX authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the permitting authority or the Administrator, as if the new owner or operator were included in such list.

(2) Within 30 days following any change in the owners and operators of a NOX Budget source or a NOX Budget unit, including the addition of a new owner or operator, the NOX authorized account representative or alternate NOX authorized account representative shall submit a revision to the account certificate of representation under §97.13 amending the list of owners and operators to include the change.

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§97.13   Account certificate of representation.

(a) A complete account certificate of representation for a NOX authorized account representative or an alternate NOX authorized account representative shall include the following elements in a format prescribed by the Administrator:

(1) Identification of the NOX Budget source and each NOX Budget unit at the source for which the account certificate of representation is submitted.

(2) The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NOX authorized account representative and any alternate NOX authorized account representative.

(3) A list of the owners and operators of the NOX Budget source and of each NOX Budget unit at the source.

(4) The following certification statement by the NOX authorized account representative and any alternate NOX authorized account representative: “I certify that I was selected as the NOX authorized account representative or alternate NOX authorized account representative, as applicable, by an agreement binding on the owners and operators of the NOX Budget source and each NOX Budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NOX Budget Trading Program on behalf of the owners and operators of the NOX Budget source and of each NOX Budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the permitting authority, the Administrator, or a court regarding the source or unit.”

(5) The signature of the NOX authorized account representative and any alternate NOX authorized account representative and the dates signed.

(b) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the account certificate of representation shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

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§97.14   Objections concerning NOX authorized account representative.

(a) Once a complete account certificate of representation under §97.13 has been submitted and received, the permitting authority and the Administrator will rely on the account certificate of representation unless and until a superseding complete account certificate of representation under §97.13 is received by the Administrator.

(b) Except as provided in §97.12 (a) or (b), no objection or other communication submitted to the permitting authority or the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NOX authorized account representative shall affect any representation, action, inaction, or submission of the NOX authorized account representative or the finality of any decision or order by the permitting authority or the Administrator under the NOX Budget Trading Program.

(c) Neither the permitting authority nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any NOX authorized account representative, including private legal disputes concerning the proceeds of NOX allowance transfers.

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Subpart C—Permits

§97.20   General NOX Budget Trading Program permit requirements.

(a) For each NOX Budget source required to have a federally enforceable permit, such permit shall include a NOX Budget permit administered by the permitting authority for the federally enforceable permit.

(1) For NOX Budget sources required to have a title V operating permit, the NOX Budget portion of the title V permit shall be administered in accordance with the permitting authority's title V operating permits regulations promulgated under part 70 or 71 of this chapter, except as provided otherwise by this subpart or subpart I of this part.

(2) For NOX Budget sources required to have a non-title V permit, the NOX Budget portion of the non-title V permit shall be administered in accordance with the permitting authority's regulations promulgated to administer non-title V permits, except as provided otherwise by this subpart or subpart I of this part.

(b) Each NOX Budget permit shall contain all applicable NOX Budget Trading Program requirements and shall be a complete and segregable portion of the permit under paragraph (a) of this section.

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§97.21   Submission of NOX Budget permit applications.

(a) Duty to apply. The NOX authorized account representative of any NOX Budget source required to have a federally enforceable permit shall submit to the permitting authority a complete NOX Budget permit application under §97.22 by the applicable deadline in paragraph (b) of this section.

(b)(1) For NOX Budget sources required to have a title V operating permit:

(i) For any source, with one or more NOX Budget units under §97.4(a) that commence operation before January 1, 2001, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 covering such NOX Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.

(ii) For any source, with any NOX Budget unit under §97.4(a) that commences operation on or after January 1, 2001, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 covering such NOX Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the NOX Budget unit commences operation.

(2) For NOX Budget sources required to have a non-title V permit:

(i) For any source, with one or more NOX Budget units under §97.4(a) that commence operation before January 1, 2001, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 covering such NOX Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.

(ii) For any source, with any NOX Budget unit under §97.4(a) that commences operation on or after January 1, 2001, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 covering such NOX Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the NOX Budget unit commences operation.

(c) Duty to reapply. (1) For a NOX Budget source required to have a title V operating permit, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 for the NOX Budget source covering the NOX Budget units at the source in accordance with the permitting authority's title V operating permits regulations addressing operating permit renewal.

(2) For a NOX Budget source required to have a non-title V permit, the NOX authorized account representative shall submit a complete NOX Budget permit application under §97.22 for the NOX Budget source covering the NOX Budget units at the source in accordance with the permitting authority's non-title V permits regulations addressing permit renewal.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002]

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§97.22   Information requirements for NOX Budget permit applications.

A complete NOX Budget permit application shall include the following elements concerning the NOX Budget source for which the application is submitted, in a format prescribed by the permitting authority:

(a) Identification of the NOX Budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration, if applicable;

(b) Identification of each NOX Budget unit at the NOX Budget source and whether it is a NOX Budget unit under §97.4(a) or under subpart I of this part;

(c) The standard requirements under §97.6; and

(d) For each NOX Budget opt-in unit at the NOX Budget source, the following certification statements by the NOX authorized account representative:

(1) “I certify that each unit for which this permit application is submitted under subpart I of this part is not a NOX Budget unit under 40 CFR 97.4(a) and is not covered by an exemption under 40 CFR 97.4(b) or 97.5 that is in effect.”

(2) If the application is for an initial NOX Budget opt-in permit, “I certify that each unit for which this permit application is submitted under subpart I of 40 CFR part 97 is operating, as that term is defined under 40 CFR 97.2.”

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§97.23   NOX Budget permit contents.

(a) Each NOX Budget permit will contain, in a format prescribed by the permitting authority, all elements required for a complete NOX Budget permit application under §97.22.

(b) Each NOX Budget permit is deemed to incorporate automatically the definitions of terms under §97.2 and, upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of a NOX allowance to or from the compliance accounts of the NOX Budget units covered by the permit or the overdraft account of the NOX Budget source covered by the permit.

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§97.24   NOX Budget permit revisions.

(a) For a NOX Budget source with a title V operating permit, except as provided in §97.23(b), the permitting authority will revise the NOX Budget permit, as necessary, in accordance with the permitting authority's title V operating permits regulations addressing permit revisions.

(b) For a NOX Budget source with a non-title V permit, except as provided in §97.23(b), the permitting authority will revise the NOX Budget permit, as necessary, in accordance with the permitting authority's non-title V permits regulations addressing permit revisions.

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Subpart D—Compliance Certification

§97.30   Compliance certification report.

(a) Applicability and deadline. For each control period in which one or more NOX Budget units at a source are subject to the NOX Budget emissions limitation, the NOX authorized account representative of the source shall submit to the permitting authority and the Administrator by November 30 of that year, a compliance certification report for each source covering all such units.

(b) Contents of report. The NOX authorized account representative shall include in the compliance certification report under paragraph (a) of this section the following elements, in a format prescribed by the Administrator, concerning each unit at the source and subject to the NOX Budget emissions limitation for the control period covered by the report:

(1) Identification of each NOX Budget unit;

(2) At the NOX authorized account representative's option, the serial numbers of the NOX allowances that are to be deducted from each unit's compliance account under §97.54 for the control period;

(3) At the NOX authorized account representative's option, for units sharing a common stack and having NOX emissions that are not monitored separately or apportioned in accordance with subpart H of this part, the percentage of allowances that is to be deducted from each unit's compliance account under §97.54(e); and

(4) The compliance certification under paragraph (c) of this section.

(c) Compliance certification. In the compliance certification report under paragraph (a) of this section, the NOX authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the NOX Budget units at the source in compliance with the NOX Budget Trading Program, whether each NOX Budget unit for which the compliance certification is submitted was operated during the calendar year covered by the report in compliance with the requirements of the NOX Budget Trading Program applicable to the unit, including:

(1) Whether the unit was operated in compliance with the NOX Budget emissions limitation;

(2) Whether the monitoring plan that governs the unit has been maintained to reflect the actual operation and monitoring of the unit and contains all information necessary to attribute NOX emissions to the unit, in accordance with subpart H of this part;

(3) Whether all the NOX emissions from the unit, or a group of units (including the unit) using a common stack, were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including whether conditional data were reported in the quarterly reports in accordance with subpart H of this part. If conditional data were reported, the owner or operator shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;

(4) Whether the facts that form the basis for certification under subpart H of this part of each monitor at the unit or a group of units (including the unit) using a common stack, or for using an excepted monitoring method or alternative monitoring method approved under subpart H of this part, if any, have changed; and

(5) If a change is required to be reported under paragraph (c)(4) of this section, specify the nature of the change, the reason for the change, when the change occurred, and how the unit's compliance status was determined subsequent to the change, including what method was used to determine emissions when a change mandated the need for monitor recertification.

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§97.31   Administrator's action on compliance certifications.

(a) The Administrator may review and conduct independent audits concerning any compliance certification or any other submission under the NOX Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.

(b) The Administrator may deduct NOX allowances from or transfer NOX allowances to a unit's compliance account or a source's overdraft account based on the information in the compliance certifications or other submissions, as adjusted under paragraph (a) of this section.

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Subpart E—NOX Allowance Allocations

§97.40   Trading program budget.

In accordance with §§97.41 and 97.42, the Administrator will allocate to the NOX Budget units under §97.4(a) in a State, for each control period specified in §97.41, a total number of NOX allowances equal to the trading budget for the State, as set forth in appendix C to this subpart, less the sum of the NOX emission limitations (in tons) for each unit exempt under §97.4(b) that is not allocated any NOX allowances under §97.42 (b) or (c) for the control period and whose NOX emission limitation (in tons of NOX) is not included in the amount calculated under §97.42(d)(5)(ii)(B) for the control period.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21646, Apr. 21, 2004; 81 FR 74604, Oct., 2016]

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§97.41   Timing requirements for NOX allowance allocations.

(a) The NOX allowance allocations, determined in accordance with §§97.42(a) through (c), for the control periods in 2004 through 2007 are set forth in appendices A and B to this subpart.

(b) By April 1, 2005, the Administrator will determine by order the NOX allowance allocations, in accordance with §§97.42 (a) through (c), for the control periods in 2008 through 2012.

(c) By April 1, 2010, by April 1 of 2015, and thereafter by April 1 of the year that is 5 years after the last year for which NOX allowances allocations are determined, the Administrator will determine by order the NOX allowance allocations, in accordance with §§97.42(a) through (c), for the control periods in the years that are 3, 4, 5, 6, and 7 years after the applicable deadline under this paragraph (c).

(d) By April 1, 2004 and April 1 of each year thereafter, the Administrator will determine by order the NOX allowance allocations, in accordance with §97.42(d), for the control period in the year of the applicable deadline under this paragraph (d).

(e) The Administrator will make available to the public each determination of NOX allowance allocations under paragraph (b), (c), or (d) of this section and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with §97.42. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with §97.42.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002; 81 FR 74604, Oct. 26, 2016]

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§97.42   NOX allowance allocations.

(a)(1) The heat input (in mmBtu) used for calculating NOX allowance allocations for each NOX Budget unit under §97.4(a) will be:

(i) For a NOX allowance allocation under §97.41(a):

(A) For a unit under §97.4(a)(1), the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998; or

(B) For a unit under §97.4(a)(2), the control period in 1995 or, if the Administrator determines that reasonably reliable data are available for control periods in 1996 through 1998, the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998.

(ii) For a NOX allowance allocation under §97.41(b), the unit's average heat input for the control periods in 2002 through 2004.

(iii) For a NOX allowance allocation under §97.41(c), the unit's average heat input for the control period in the years that are 4, 5, 6, 7, and 8 years before the first year for which the allocation is being calculated.

(2) The unit's heat input for the control period in each year specified under paragraph (a)(1) of this section will be determined in accordance with part 75 of this chapter. Notwithstanding the first sentence of this paragraph (a)(2):

(i) For a NOX allowance allocation under §97.41(a), such heat input will be determined using the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of part 75 of this chapter for the control period.

(ii) For a NOX allowance allocation under §97.41(b) or (c) for a unit exempt under §97.4(b), such heat input shall be treated as zero if the unit is exempt under §97.4(b) during the control period.

(b) For each group of control periods specified in §97.41(a) through (c), the Administrator will allocate to all NOX Budget units in a given State under §97.4(a)(1) that commenced operation before May 1, 1997 for allocations under §97.41(a), May 1, 2003 for allocations under §97.41(b), and May 1 of the year 5 years before the first year for which the allocation under §97.41(c) is being calculated, a total number of NOX allowances equal to 95 percent of the portion of the State's trading program budget under §97.40 covering such units. The Administrator will allocate in accordance with the following procedures:

(1) The Administrator will allocate NOX allowances to each NOX Budget unit under §97.4(a)(1) for each control period in an amount equaling 0.15 lb/mmBtu multiplied by the heat input determined under paragraph (a) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate.

(2) If the initial total number of NOX allowances allocated to all NOX Budget units under §97.4(a)(1) in the State for a control period under paragraph (b)(1) of this section does not equal 95 percent of the portion of the State's trading program budget under §97.40 covering such units, the Administrator will adjust the total number of NOX allowances allocated to all such NOX Budget units for the control period under paragraph (b)(1) of this section so that the total number of NOX allowances allocated equals 95 percent of such portion of the State's trading program budget. This adjustment will be made by: multiplying each unit's allocation by 95 percent of such portion of the State's trading program budget; dividing by the total number of NOX allowances allocated under paragraph (b)(1) of this section for the control period; and rounding to the nearest whole number of NOX allowances as appropriate.

(c) For each group of control periods specified in §97.41(a) through (c), the Administrator will allocate to all NOX Budget units in a given State under §97.4(a)(2) that commenced operation before May 1, 1997 for allocations under §97.41(a), May 1, 2003 for allocations under §97.41(b), and May 1 of the year 5 years before the first year for which the allocation under §97.41(c) is being calculated, a total number of NOX allowances equal to 95 percent of the portion of the State's trading program budget under §97.40 covering such units. The Administrator will allocate in accordance with the following procedures:

(1) The Administrator will allocate NOX allowances to each NOX Budget unit under §97.4(a)(2) for each control period in an amount equaling 0.17 lb/mmBtu multiplied by the heat input determined under paragraph (a) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate.

(2) If the initial total number of NOX allowances allocated to all NOX Budget units under §97.4(a)(2) in the State for a control period under paragraph (c)(1) of this section does not equal 95 percent of the portion of the State's trading program budget under §97.40 covering such units, the Administrator will adjust the total number of NOX allowances allocated to all such NOX Budget units for the control period under paragraph (a)(1) of this section so that the total number of NOX allowances allocated equals 95 percent of the portion of the State's trading program budget under §97.40 covering such units. This adjustment will be made by: multiplying each unit's allocation by 95 percent of the portion of the State's trading program budget under §97.40 covering such units; dividing by the total number of NOX allowances allocated under paragraph (c)(1) of this section for the control period; and rounding to the nearest whole number of NOX allowances as appropriate.

(d) For each control period specified in §97.41(d), the Administrator will allocate NOX allowances to NOX Budget units in a given State under §97.4(a) (except for units exempt under §97.4(b)) that commence operation, or are projected to commence operation, on or after: May 1, 1997 (for control periods under §97.41(a)); May 1, 2003, (for control periods under §97.41(b)); and May 1 of the year 5 years before the beginning of the group of 5 years that includes the control period (for control periods under §97.41(c)). The Administrator will make the allocations under this paragraph (d) in accordance with the following procedures:

(1) The Administrator will establish one allocation set-aside for each control period. Each allocation set-aside will be allocated NOX allowances equal to 5 percent of the tons of NOX emission in the State's trading program budget under §97.40, rounded to the nearest whole number of NOX allowances as appropriate.

(2) The NOX authorized account representative of a NOX Budget unit specified in this paragraph (d) may submit to the Administrator a request, in a format specified by the Administrator, to be allocated NOX allowances for the control period. The NOX allowance allocation request must be received by the Administrator on or after the date on which the State permitting authority issues a permit to construct the unit and by January 1 before the control period for which NOX allowances are requested.

(3) In a NOX allowance allocation request under paragraph (d)(2) of this section, the NOX authorized account representative for a NOX Budget unit under §97.4(a)(1) may request for the control period NOX allowances in an amount that does not exceed the lesser of:

(i) 0.15 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate; or

(ii) The unit's most stringent State or Federal NOX emission limitation multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate.

(4) In a NOX allowance allocation request under paragraph (d)(2) of this section, the NOX authorized account representative for a NOX Budget unit under §97.4(a)(2) may request for the control period NOX allowances in an amount that does not exceed the lesser of:

(i) 0.17 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate; or

(ii) The unit's most stringent State or Federal NOX emission limitation multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate.

(5) The Administrator will review each NOX allowance allocation request submitted in accordance with paragraph (d)(2) of this section and will allocate NOX allowances pursuant to such request as follows:

(i) Upon receipt of the NOX allowance allocation request, the Administrator will make any necessary adjustments to the request to ensure that the requirements of paragraphs (d) introductory text, (d)(2), (d)(3), and (d)(4) are met.

(ii) The Administrator will determine the following amounts:

(A) The sum of the NOX allowances requested (as adjusted under paragraph (d)(5)(i) of this section) in all NOX allowance allocation requests under paragraph (d)(2) of this section for the control period; and

(B) For units exempt under §97.4(b) in the State that commenced operation, or are projected to commence operation, on or after May 1, 1997 (for control periods under §97.41(a)); May 1, 2003, (for control periods under §97.41(b)); and May 1 of the year 5 years before beginning of the group of 5 years that includes the control period (for control periods under §97.41(c)), the sum of the NOX emission limitations (in tons of NOX) on which each unit's exemption under §97.4(b) is based.

(iii) If the number of NOX allowances in the allocation set-aside for the control period less the amount under paragraph (d)(5)(ii)(B) of this section is not less than the amount determined under paragraph (d)(5)(ii)(A) of this section, the Administrator will allocate the amount of the NOX allowances requested (as adjusted under paragraph (d)(5)(i) of this section) to the NOX Budget unit for which the allocation request was submitted.

(iv) If the number of NOX allowances in the allocation set-aside for the control period less the amount under paragraph (d)(5)(ii)(B) of this section is less than the amount determined under paragraph (d)(5)(ii)(A) of this section, the Administrator will allocate, to the NOX Budget unit for which the allocation request was submitted, the amount of NOX allowances requested (as adjusted under paragraph (d)(5)(i) of this section) multiplied by the number of NOX allowances in the allocation set-aside for the control period less the amount determined under paragraph (d)(5)(ii)(B) of this section, divided by the amount determined under paragraph (d)(5)(ii)(A) of this section, and rounded to the nearest whole number of NOX allowances as appropriate.

(e)(1) For a NOX Budget unit that is allocated NOX allowances under paragraph (d) of this section for a control period, the Administrator will deduct NOX allowances under §97.54(b), (e), or (f) to account for the actual heat input of the unit during the control period. The Administrator will calculate the number of NOX allowances to be deducted to account for the unit's actual heat input using the following formulas and rounding to the nearest whole number of NOX allowance as appropriate, provided that the number of NOX allowances to be deducted shall be zero if the number calculated is less than zero:

NOX allowances deducted for actual heat input for a unit under §97.4(a)(1) = Unit's NOX allowances allocated for control period−(Unit's actual control period heat input × the lesser of 0.15 lb/mmBtu the unit's most stringent State or Federal emission limitation × 2,000 lb/ton); and NOX allowances deducted for actual heat input for a unit under §97.4(a)(2) = Unit's NOX allowances allocated for control period−(Unit's actual control period heat input × the lesser of 0.17 lb/mmBtu the unit's most stringent State or Federal emission limitation × 2,000 lb/ton)

Where:

“Unit's NOX allowances allocated for control period” is the number of NOX allowances allocated to the unit for the control period under paragraph (d) of this section; and

“Unit's actual control period heat input” is the heat input (in mmBtu) of the unit during the control period.

(2) The Administrator will transfer any NOX allowances deducted under paragraph (e)(1) of this section to the allocation set-aside for the control period for which they were allocated.

(f) After making the deductions for compliance under §97.54(b), (e), or (f) for a control period, the Administrator will determine whether any NOX allowances remain in the allocation set-aside for the control period. The Administrator will allocate any such NOX allowances to the NOX Budget units in the State using the following formula and rounding to the nearest whole number of NOX allowances as appropriate:

Unit's share of NOX allowances remaining in allocation set-aside = Total NOX allowances remaining in allocation set-aside × (Unit's NOX allowance allocation ÷ State's trading program budget excluding allocation set-aside)

Where:

“Total NOX allowances remaining in allocation set-aside” is the total number of NOX allowances remaining in the allocation set-aside for the control period;

“Unit's NOX allowance allocation” is the number of NOX allowances allocated under paragraph (b) or (c) of this section to the unit for the control period to which the allocation set-aside applies; and

“State's trading program budget excluding allocation set-aside” is the State's trading program budget under §97.40 for the control period to which the allocation set-aside applies multiplied by 95 percent, rounded to the nearest whole number of NOX allowances as appropriate.

(g) If the Administrator determines that NOX allowances were allocated under paragraph (b), (c), or (d) of this section for a control period and the recipient of the allocation is not actually a NOX Budget unit under §97.4(a), the Administrator will notify the NOX authorized account representative and then will act in accordance with the following procedures:

(1)(i) The Administrator will not record such NOX allowances for the control period in an account under §97.53;

(ii) If the Administrator already recorded such NOX allowances for the control period in an account under §97.53 and if the Administrator makes such determination before making all deductions pursuant to §97.54 (except deductions pursuant to §97.54(d)(2)) for the control period, then the Administrator will deduct from the account NOX allowances equal in number to and allocated for the same or a prior control period as the NOX allowances allocated to such recipient for the control period. The NOX authorized account representative shall ensure that the account contains the NOX allowances necessary for completion of such deduction. If account does not contain the necessary NOX allowances, the Administrator will deduct the required number of NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in the account; or

(iii) If the Administrator already recorded such NOX allowances for the control period in an account under §97.53 and if the Administrator makes such determination after making all deductions pursuant to §97.54 (except deductions pursuant to §97.54(d)(2)) for the control period, then the Administrator will apply paragraph (g)(1)(ii) of this section to any subsequent control period for which NOX allowances were allocated to such recipient.

(2) The Administrator will transfer the NOX allowances that are not recorded, or that are deducted, pursuant to paragraph (g)(1) of this section to an allocation set-aside for the State in which such source is located.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002; 69 FR 21646, Apr. 21, 2004]

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§97.43   Compliance Supplement Pool.

(a) For any NOX Budget unit that reduces its NOX emission rate in the 2001 through 2003 control period, the owners and operators may request early reduction credits in accordance with the following requirements:

(1) Each NOX Budget unit for which the owners and operators intend to request, or request, any early reduction credits in accordance with paragraph (a)(4) of this section shall monitor and report NOX emissions in accordance with subpart H of this part starting in the 2000 control period and for each control period for which such early reduction credits are requested. The unit's percent monitor data availability shall not be less than 90 percent during the 2000 control period, and the unit must be in full compliance with any applicable State or Federal NOX emission control requirements during 2000 through 2002.

(2) NOX emission rate and heat input under paragraphs (a)(3) and (4) of this section shall be determined in accordance with subpart H of this part.

(3) Each NOX Budget unit for which the owners and operators intend to request, or request, any early reduction credits under paragraph (a)(4) of this section shall reduce its NOX emission rate, for each control period for which early reduction credits are requested, to less than both 0.25 lb/mmBtu and 80 percent of the unit's NOX emission rate in the 2000 control period.

(4) The NOX authorized account representative of a NOX Budget unit that meets the requirements of paragraphs (a) (1) and (3) of this section may submit to the Administrator a request for early reduction credits for the unit based on NOX emission rate reductions made by the unit in the control period for 2001 through 2003.

(i) In the early reduction credit request, the NOX authorized account may request early reduction credits for such control period in an amount equal to the unit's heat input for such control period multiplied by the difference between 0.25 lb/mmBtu and the unit's NOX emission rate for such control period, divided by 2000 lb/ton, and rounded to the nearest whole number of tons.

(ii) The early reduction credit request must be submitted, in a format specified by the Administrator, by February 1, 2004.

(b) For any NOX Budget unit that is subject to the Ozone Transport Commission NOX Budget Program under title I of the Clean Air Act, the owners and operators may request early reduction credits in accordance with the following requirements:

(1) The NOX authorized account representative of the unit may submit to the Administrator a request for early reduction credits in an amount equal to the amount of banked allowances under the Ozone Transport Commission NOX Budget Program that were allocated for the control period in 2001 through 2003 and are held by the unit, in accordance with the Ozone Transport Commission NOX Budget Program, as of the date of submission of the request. During the entire control period in 2001 through 2003 for which the allowances were allocated, the unit must have monitored and reported NOX emissions in accordance with part 75 (except for subpart H) of this chapter and the Guidance for Implementation of Emission Monitoring Requirements for the NOX Budget Program (January 28, 1997).

(2) The early reduction credit request under paragraph (b)(1) must be submitted, in a format specified by the Administrator, by February 1, 2004.

(3) The NOX authorized account representative of the unit shall not submit a request for early reduction credits under paragraph (b)(1) of this section for banked allowances under the Ozone Transport Commission NOX Budget Program that were allocated for any control period during which the unit made NOX emission reductions for which he or she submits a request for early reduction credits under paragraph (a) of this section for the unit.

(c) The Administrator will review each early reduction credit request submitted in accordance with paragraph (a) or (b) of this section and will allocate NOX allowances to NOX Budget units in a given State and covered by such request as follows:

(1) Upon receipt of each early reduction credit request, the Administrator will make any necessary adjustments to the request to ensure that the amount of the early reduction credits requested meets the requirements of paragraph (a) or (b) of this section.

(2) After February 1, 2004, the Administrator will make available to the public a statement of the total number of early reduction credits requested by NOX Budget units in the State.

(3) If the State's compliance supplement pool set forth in appendix D to this subpart has a number of NOX allowances not less than the amount of early reduction credits in all early reduction credit requests under paragraph (a) or (b) of this section for 2001 through 2003 (as adjusted under paragraph (c)(1) of this section) submitted by February 1, 2004, the Administrator will allocate to each NOX Budget unit covered by such requests one allowance for each early reduction credit requested (as adjusted under paragraph (c)(1) of this section).

(4) If the State's compliance supplement pool set forth in appendix D to this subpart has a smaller number of NOX allowances than the amount of early reduction credits in all early reduction credit requests under paragraph (a) or (b) of this section for 2001 through 2003 (as adjusted under paragraph (c)(1) of this section) submitted by February 1, 2004, the Administrator will allocate NOX allowances to each NOX Budget unit covered by such requests according to the following formula and rounding to the nearest whole number of NOX allowances as appropriate:

Unit's allocation for early reduction credits = Unit's adjusted early reduction credits × (State's compliance supplement pool ÷ Total adjusted early reduction credits for all units)

Where:

“Unit's allocation for early reduction credits” is the number of NOX allowances allocated to the unit for early reduction credits.

“Unit's adjusted early reduction credits” is the amount of early reduction credits requested for the unit for 2001 and 2002 in early reduction credit requests under paragraph (a) or (b) of this section, as adjusted under paragraph (c)(1) of this section.

“State's compliance supplement pool” is the number of NOX allowances in the State's compliance supplement pool set forth in appendix D to this subpart.

“Total adjusted early reduction credits for all units” is the amount of early reduction credits requested for all units for 2001 and 2002 in early reduction credit requests under paragraph (a) or (b) of this section, as adjusted under paragraph (c)(1) of this section.

(5) By April 1, 2004, the Administrator will determine by order the allocations under paragraph (c)(3) or (4) of this section. The Administrator will make available to the public each determination of NOX allowance allocations and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with paragraph (c)(1), (3), or (4) of this section. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with paragraph (c)(1), (3), or (4) of this section.

(6) By May 1, 2004, the Administrator will record the allocations under paragraph (c)(3) or (4) of this section.

(7) NOX allowances recorded under paragraph (c)(6) of this section may be deducted for compliance under §97.54 for the control period in 2004 or 2005. Notwithstanding §97.55(a), the Administrator will deduct as retired any NOX allowance that is recorded under paragraph (c)(6) of this section and that is not deducted for compliance under §97.54 for the control period in 2003 or 2004.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21529, Apr. 30, 2002; 69 FR 21646, Apr. 21, 2004; 81 FR 74604, Oct. 26, 2016]

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Appendix A to Subpart E of Part 97—Final Section 126 Rule: EGU Allocations, 2004-2007

ST Plant Plant__id Point__id NOX allocation for EGUs
DCBENNING6031580
DCBENNING60316117
DECHRISTIANA SUB591115
DECHRISTIANA SUB591145
DEDELAWARE CITY52193B4141
DEDELAWARE CITY52193ST__ 1155
DEDELAWARE CITY52193ST__ 2159
DEDELAWARE CITY52193ST__ 3158
DEEDGE MOOR5933234
DEEDGE MOOR5934401
DEEDGE MOOR5935602
DEHAY ROAD7153**3184
DEHAY ROAD7153—1235
DEHAY ROAD7153—2207
DEINDIAN RIVER5941187
DEINDIAN RIVER5942194
DEINDIAN RIVER5943369
DEINDIAN RIVER5944729
DEMCKEE RUN5993119
DEVAN SANT STATION7318**117
INANDERSON7336—ACT15
INANDERSON7336—ACT25
INCLIFTY CREEK9831558
INCLIFTY CREEK9832543
INCLIFTY CREEK9833564
INCLIFTY CREEK9834525
INCLIFTY CREEK9835561
INCLIFTY CREEK9836509
INCONNERSVILLE100211
INCONNERSVILLE100221
INGALLAGHER10081290
INGALLAGHER10082276
INGALLAGHER10083347
INGALLAGHER10084329
INNOBLESVILLE1007148
INNOBLESVILLE1007245
INNOBLESVILLE1007345
INRICHMOND7335—RCT15
INRICHMOND7335—RCT25
INTANNERS CREEK988U1297
INTANNERS CREEK988U2235
INTANNERS CREEK988U3387
INTANNERS CREEK988U4906
INWHITEWATER VALLEY1040174
INWHITEWATER VALLEY10402173
KYBIG SANDY1353BSU1565
KYBIG SANDY1353BSU21,741
KYCANE RUN13634397
KYCANE RUN13635332
KYCANE RUN13636430
KYCOOPER13841183
KYCOOPER13842367
KYDALE13853161
KYDALE13854158
KYE W BROWN13551193
KYE W BROWN13551037
KYE W BROWN13552317
KYE W BROWN13553863
KYE W BROWN1355834
KYE W BROWN1355934
KYE.W. BROWN13551121
KYEAST BEND601821,413
KYGHENT135611,232
KYGHENT135621,081
KYGHENT135631,104
KYGHENT135641,132
KYH L SPURLOCK60411697
KYH L SPURLOCK604121,589
KYMILL CREEK13641528
KYMILL CREEK13642600
KYMILL CREEK13643941
KYMILL CREEK136441,096
KYPADDY'S RUN1366128
KYPINEVILLE1360367
KYTRIMBLE COUNTY607111,221
KYTYRONE136113
KYTYRONE136123
KYTYRONE136133
KYTYRONE136143
KYTYRONE13615117
MDBRANDON SHORES60211,827
MDBRANDON SHORES60221,713
MDC P CRANE15521434
MDC P CRANE15522463
MDCHALK POINT1571—GT21
MDCHALK POINT1571—GT336
MDCHALK POINT1571—GT439
MDCHALK POINT1571—GT555
MDCHALK POINT1571—GT660
MDCHALK POINT1571—SGT124
MDCHALK POINT15711833
MDCHALK POINT15712861
MDCHALK POINT15713585
MDCHALK POINT15714522
MDDICKERSON1572—GT236
MDDICKERSON1572—GT366
MDDICKERSON15721447
MDDICKERSON15722441
MDDICKERSON15723481
MDGOULD STREET1553381
MDHERBERT A WAGNER15541134
MDHERBERT A WAGNER15542399
MDHERBERT A WAGNER15543723
MDHERBERT A WAGNER15544301
MDMORGANTOWN1573—GT39
MDMORGANTOWN1573—GT49
MDMORGANTOWN1573—GT59
MDMORGANTOWN1573—GT68
MDMORGANTOWN157311,151
MDMORGANTOWN157321,375
MDPANDA BRANDYWINE54832195
MDPANDA BRANDYWINE54832284
MDPERRYMAN1556**5156
MDPERRYMAN1556—GT18
MDPERRYMAN1556—GT29
MDPERRYMAN1556—GT36
MDPERRYMAN1556—GT410
MDR P SMITH157011143
MDR P SMITH1570911
MDRIVERSIDE1559—GT611
MDRIVERSIDE1559440
MDVIENNA15648169
MDWESTPORT1560—GT528
MIADA COGEN LTD10819CA__Ltd23
MIBELLE RIVER603411,589
MIBELLE RIVER603421,672
MIDAN E KARN17021552
MIDAN E KARN17022530
MIDAN E KARN17023288
MIDAN E KARN17024310
MIECKERT STATION1831152
MIECKERT STATION1831247
MIECKERT STATION1831365
MIECKERT STATION18314116
MIECKERT STATION18315154
MIECKERT STATION18316131
MIENDICOTT GENERATING STATION4259198
MIERICKSON18321381
MIGREENWOOD60351373
MIHANCOCK173053
MIHANCOCK173063
MIHARBOR BEACH1731197
MIJ C WEADOCK17207346
MIJ C WEADOCK17208342
MIJ R WHITING17231225
MIJ R WHITING17232204
MIJ R WHITING17233249
MIJAMES DE YOUNG1830569
MIMARYSVILLE17321022
MIMARYSVILLE17321116
MIMARYSVILLE17321217
MIMARYSVILLE1732917
MIMIDLAND COGENERATION VENTURE10745003269
MIMIDLAND COGENERATION VENTURE10745004276
MIMIDLAND COGENERATION VENTURE10745005271
MIMIDLAND COGENERATION VENTURE10745006273
MIMIDLAND COGENERATION VENTURE10745007280
MIMIDLAND COGENERATION VENTURE10745008277
MIMIDLAND COGENERATION VENTURE10745009273
MIMIDLAND COGENERATION VENTURE10745010271
MIMIDLAND COGENERATION VENTURE10745011274
MIMIDLAND COGENERATION VENTURE10745012269
MIMIDLAND COGENERATION VENTURE10745013275
MIMIDLAND COGENERATION VENTURE10745014269
MIMISTERSKY1822533
MIMISTERSKY18226155
MIMISTERSKY1822798
MIMONROE173311,902
MIMONROE173321,555
MIMONROE173331,574
MIMONROE173341,822
MIRIVER ROUGE174010
MIRIVER ROUGE17402627
MIRIVER ROUGE17403652
MIROUGE POWERHOUSE #1102721232
MIST CLAIR17431339
MIST CLAIR17432304
MIST CLAIR17433351
MIST CLAIR17434349
MIST CLAIR174350
MIST CLAIR17436646
MIST CLAIR17437733
MITRENTON CHANNEL174516132
MITRENTON CHANNEL174517124
MITRENTON CHANNEL174518130
MITRENTON CHANNEL174519126
MITRENTON CHANNEL17459A968
MIWYANDOTTE186658
MIWYANDOTTE1866781
MIWYANDOTTE1866836
NCASHEVILLE27061491
NCASHEVILLE27062479
NCBELEWS CREEK804212,306
NCBELEWS CREEK804222,688
NCBUCK2720559
NCBUCK2720665
NCBUCK2720769
NCBUCK27208284
NCBUCK27209300
NCBUTLER WARNER GEN PL1016—140
NCBUTLER WARNER GEN PL1016—240
NCBUTLER WARNER GEN PL1016—340
NCBUTLER WARNER GEN PL1016—642
NCBUTLER WARNER GEN PL1016—740
NCBUTLER WARNER GEN PL1016—840
NCBUTLER WARNER GEN PL1016—9103
NCCAPE FEAR27085255
NCCAPE FEAR27086361
NCCLIFFSIDE2721167
NCCLIFFSIDE2721273
NCCLIFFSIDE2721395
NCCLIFFSIDE27214107
NCCLIFFSIDE272151,180
NCCOGENTRIX-ROCKY MOUNT50468ST__unt303
NCCOGENTRIX ELIZABETHTOWN10380ST__OWN111
NCCOGENTRIX KENANSVILLE10381ST__LLE102
NCCOGENTRIX LUMBERTON10382ST__TON111
NCCOGENTRIX ROXBORO10379ST__ORO166
NCCOGENTRIX SOUTHPORT10378ST__ORT335
NCDAN RIVER27231117
NCDAN RIVER27232128
NCDAN RIVER27233271
NCG G ALLEN27181311
NCG G ALLEN27182316
NCG G ALLEN27183525
NCG G ALLEN27184470
NCG G ALLEN27185514
NCL V SUTTON27131162
NCL V SUTTON27132176
NCL V SUTTON27133717
NCL V SUTTON2713CT2B2
NCLEE27091129
NCLEE27092142
NCLEE27093414
NCLEE2709CT41
NCLINCOLN7277133
NCLINCOLN72771031
NCLINCOLN72771133
NCLINCOLN72771231
NCLINCOLN72771326
NCLINCOLN72771426
NCLINCOLN72771525
NCLINCOLN72771625
NCLINCOLN7277233
NCLINCOLN7277331
NCLINCOLN7277431
NCLINCOLN7277529
NCLINCOLN7277630
NCLINCOLN7277724
NCLINCOLN7277825
NCLINCOLN7277932
NCMARSHALL27271899
NCMARSHALL27272940
NCMARSHALL272731,588
NCMARSHALL272741,570
NCMAYO62501A893
NCMAYO62501B875
NCPANDA-ROSEMARY50555CT__ary62
NCPANDA-ROSEMARY50555CW__ary47
NCRIVERBEND273210266
NCRIVERBEND27327193
NCRIVERBEND27328200
NCRIVERBEND27329253
NCROANOKE VALLEY502541440
NCROANOKE VALLEY502542140
NCROXBORO27121766
NCROXBORO271221,426
NCROXBORO27123A792
NCROXBORO27123B785
NCROXBORO27124A778
NCROXBORO27124B733
NCTOBACCOVILLE50221153
NCTOBACCOVILLE50221253
NCTOBACCOVILLE50221353
NCTOBACCOVILLE50221453
NCUNC—CHAPEL HILL54276ST__ill14
NCW H WEATHERSPOON2716176
NCW H WEATHERSPOON2716286
NCW H WEATHERSPOON27163161
NCW H WEATHERSPOON2716CT-14
NCW H WEATHERSPOON2716CT-23
NCW H WEATHERSPOON2716CT-32
NCW H WEATHERSPOON2716CT-44
NJB L ENGLAND23781353
NJB L ENGLAND23782417
NJB L ENGLAND23783114
NJBAYONNE504971139
NJBAYONNE504972143
NJBAYONNE504973140
NJBERGEN23981101152
NJBERGEN23981201157
NJBERGEN23981301155
NJBERGEN23981401152
NJBURLINGTON239910130
NJBURLINGTON239910234
NJBURLINGTON239910339
NJBURLINGTON239910447
NJBURLINGTON239911-12
NJBURLINGTON239911-22
NJBURLINGTON239911-32
NJBURLINGTON239911-42
NJBURLINGTON2399717
NJBURLINGTON23999-14
NJBURLINGTON23999-24
NJBURLINGTON23999-34
NJBURLINGTON23999-44
NJCAMDEN107511378
NJCARLL'S CORNER STATION237912
NJCARLL'S CORNER STATION2379216
NJCARNEYS POINT (CCLP) NUG10566ST__NUG527
NJCEDAR STATION23801E&W5
NJCUMBERLAND5083—GT140
NJDEEPWATER2384149
NJDEEPWATER238445
NJDEEPWATER2384642
NJDEEPWATER23848195
NJEDISON24001-1A&B3
NJEDISON24001-2A&B3
NJEDISON24001-3A&B3
NJEDISON24001-4A&B3
NJEDISON24002-1A&B7
NJEDISON24002-2A&B7
NJEDISON24002-3A&B7
NJEDISON24002-4A&B7
NJEDISON24003-1A&B7
NJEDISON24003-2A&B7
NJEDISON24003-3A&B7
NJEDISON24003-4A&B7
NJESSEX240110-1A&B10
NJESSEX240110-2A&B10
NJESSEX240110-3A&B10
NJESSEX240110-4A&B10
NJESSEX240111-1A&B11
NJESSEX240111-2A&B11
NJESSEX240111-3A&B11
NJESSEX240111-4A&B11
NJESSEX240112-1A&B13
NJESSEX240112-2A&B13
NJESSEX240112-3A&B13
NJESSEX240112-4A&B13
NJESSEX2401966
NJFORKED RIVER7138—117
NJFORKED RIVER7138—217
NJGILBERT23930347
NJGILBERT23930464
NJGILBERT23930563
NJGILBERT23930661
NJGILBERT23930763
NJGILBERT239314
NJGILBERT239324
NJGILBERT2393CT-961
NJHUDSON24031175
NJHUDSON24032884
NJHUDSON240333
NJKEARNY24041026
NJKEARNY24041134
NJKEARNY240412-18
NJKEARNY240412-28
NJKEARNY240412-38
NJKEARNY240412-48
NJKEARNY2404735
NJKEARNY2404816
NJLINDEN24061116
NJLINDEN24061211
NJLINDEN24061320
NJLINDEN2406252
NJLINDEN240662
NJLINDEN2406760
NJLINDEN2406870
NJLINDEN COGEN50006100276
NJLINDEN COGEN50006200280
NJLINDEN COGEN50006300274
NJLINDEN COGEN50006400272
NJLINDEN COGEN50006500278
NJLOGAN GENERATING PLANT100431424
NJMERCER24081489
NJMERCER24082558
NJMICKELTON8008128
NJMIDDLE ST238234
NJMILFORD POWER LP10616144
NJMOBIL NUGn114CT__NUG40
NJNEWARK BAY COGEN5038519
NJNEWARK BAY COGEN5038529
NJNORTH JERSEY ENERGY ASSOCIATES10308119
NJNORTH JERSEY ENERGY ASSOCIATES10308219
NJO'BRIEN (NEWARK) COGENERATION, INC.5079718
NJO'BRIEN (PARLIN) COGENERATION, INC.5079918
NJO'BRIEN (PARLIN) COGENERATION, INC.5079928
NJPEDRICKTOWN COGEN10099113
NJPRIME ENERGY LP508521178
NJSALEM24103A&B3
NJSAYREVILLE23900740
NJSAYREVILLE23900851
NJSAYREVILLE2390C-116
NJSAYREVILLE2390C-213
NJSAYREVILLE2390C-311
NJSAYREVILLE2390C-413
NJSEWAREN2411142
NJSEWAREN2411245
NJSEWAREN2411358
NJSEWAREN2411491
NJSEWAREN241162
NJSHERMAN7288CT-137
NJVINELAND VCLP NUG54807GT__NUG40
NJWERNER23850414
NJWERNER2385C-17
NJWERNER2385C-26
NJWERNER2385C-37
NJWERNER2385C-47
NJWEST STAT6776110
NY59TH STREET250311441
NY59TH STREET250311532
NY74TH STREET250412070
NY74TH STREET250412180
NY74TH STREET250412265
NYARTHUR KILL249020524
NYARTHUR KILL249030380
NYASTORIA890630557
NYASTORIA890640505
NYASTORIA890650561
NYASTORIA8906GT2-19
NYASTORIA8906GT2-29
NYASTORIA8906GT2-39
NYASTORIA8906GT2-49
NYASTORIA8906GT3-19
NYASTORIA8906GT3-29
NYASTORIA8906GT3-39
NYASTORIA8906GT3-49
NYASTORIA8906GT4-19
NYASTORIA8906GT4-29
NYASTORIA8906GT4-39
NYASTORIA8906GT4-49
NYBOWLINE POINT26251749
NYBOWLINE POINT26252566
NYBROOKLYN NAVY YARD549141239
NYBROOKLYN NAVY YARD549142220
NYCHARLES POLETTI2491001883
NYDANSKAMMER2480134
NYDANSKAMMER2480245
NYDANSKAMMER24803229
NYDANSKAMMER24804449
NYEF BARRETT251110285
NYEF BARRETT251120287
NYEAST RIVER24935033
NYEAST RIVER249360319
NYEAST RIVER249370113
NYFAR ROCKAWAY251340138
NYGLENWOOD251440151
NYGLENWOOD251450124
NYGLENWOOD2514U000201
NYGLENWOOD2514U000211
NYHUDSON AVENUE2496100162
NYLOVETT2629374
NYLOVETT26294304
NYLOVETT26295380
NYNISSEQUOGUE COGEN PARTNERS4931186
NYNORTHPORT25161343
NYNORTHPORT25162533
NYNORTHPORT25163375
NYNORTHPORT25164582
NYO&R HILLBURN GT262812
NYO&R SHOEMAKER GT2632110
NYPORT JEFFERSON25173270
NYPORT JEFFERSON25174253
NYRAVENSWOOD250010299
NYRAVENSWOOD250020363
NYRAVENSWOOD2500301,360
NYRAVENSWOOD2500GT2-13
NYRAVENSWOOD2500GT2-23
NYRAVENSWOOD2500GT2-33
NYRAVENSWOOD2500GT2-43
NYRAVENSWOOD2500GT3-13
NYRAVENSWOOD2500GT3-23
NYRAVENSWOOD2500GT3-33
NYRAVENSWOOD2500GT3-43
NYRICHARD M FLYNN7314NA1246
NYRICHARD M FLYNN7314NA225
NYROSETON80061479
NYROSETON80062595
NYTRIGEN-NDEC520564105
NYWADING RIVER714618
NYWADING RIVER714628
NYWADING RIVER714638
NYWADING RIVER7146UGT0131
NYWATERSIDE25026184
NYWATERSIDE25026291
NYWATERSIDE250280208
NYWATERSIDE250290208
NYWEST BABYLON252112
OHASHTABULA28351075
OHASHTABULA28351180
OHASHTABULA28357333
OHASHTABULA2835870
OHASHTABULA2835966
OHAVON LAKE283610139
OHAVON LAKE2836121,040
OHAVON LAKE2836941
OHAVON LAKE2836CT103
OHBAY SHORE28781208
OHBAY SHORE28782229
OHBAY SHORE28783213
OHBAY SHORE28784330
OHCARDINAL282811,030
OHCARDINAL282821,083
OHCARDINAL282831,079
OHCONESVILLE28401214
OHCONESVILLE28402203
OHCONESVILLE28403212
OHCONESVILLE284041,119
OHCONESVILLE28405731
OHCONESVILLE28406736
OHDICKS CREEK283117
OHEASTLAKE28371214
OHEASTLAKE28372230
OHEASTLAKE28373251
OHEASTLAKE28374371
OHEASTLAKE28375974
OHEASTLAKE283761
OHEDGEWATER28571365
OHEDGEWATER2857A1
OHEDGEWATER2857B1
OHFRANK M TAIT2847GT123
OHFRANK M TAIT2847GT225
OHGEN J M GAVIN810212,744
OHGEN J M GAVIN810222,981
OHHAMILTON29179110
OHJ M STUART285011,054
OHJ M STUART285021,228
OHJ M STUART285031,074
OHJ M STUART285041,106
OHKILLEN STATION603121,706
OHKYGER CREEK28761471
OHKYGER CREEK28762471
OHKYGER CREEK28763478
OHKYGER CREEK28764465
OHKYGER CREEK28765455
OHLAKE SHORE283818195
OHMAD RIVER2860A2
OHMAD RIVER2860B2
OHMIAMI FORT28325-135
OHMIAMI FORT28325-235
OHMIAMI FORT28326398
OHMIAMI FORT283271,044
OHMIAMI FORT283281,015
OHMIAMI FORT2832CT21
OHMUSKINGUM RIVER28721309
OHMUSKINGUM RIVER28722316
OHMUSKINGUM RIVER28723347
OHMUSKINGUM RIVER28724349
OHMUSKINGUM RIVER287251,105
OHNILES28611212
OHNILES28612160
OHNILES2861A2
OHO H HUTCHINGS2848H-124
OHO H HUTCHING2848H-237
OHO H HUTCHINGS2848H-364
OHO H HUTCHINGS2848H-468
OHO H HUTCHINGS2848H-562
OHO H HUTCHINGS2848H-669
OHO H HUTCHINGS2848H-71
OHPICWAY28439141
OHR E BURGER286410
OHR E BURGER286420
OHR E BURGER286430
OHR E BURGER286440
OHR E BURGER2864514
OHR E BURGER2864613
OHR E BURGER28647337
OHR E BURGER28648274
OHRICHARD GORSUCH72861146
OHRICHARD GORSUCH72862138
OHRICHARD GORSUCH72863144
OHRICHARD GORSUCH72864146
OHW H SAMMIS28661402
OHW H SAMMIS28662418
OHW H SAMMIS28663400
OHW H SAMMIS28664415
OHW H SAMMIS28665631
OHW H SAMMIS286661,221
OHW H SAMMIS286671,259
OHW H ZIMMER601912,918
OHWALTER C BECKJORD28301167
OHWALTER C BECKJORD28302198
OHWALTER C BECKJORD28303281
OHWALTER C BECKJORD28304347
OHWALTER C BECKJORD28305481
OHWALTER C BECKJORD28306850
OHWALTER C BECKJORD2830CT13
OHWALTER C BECKJORD2830CT23
OHWALTER C BECKJORD2830CT34
OHWALTER C BECKJORD2830CT42
OHWEST LORAIN28691A0
OHWEST LORAIN28691B0
OHWOODSDALE7158—GT130
OHWOODSDALE7158—GT230
OHWOODSDALE7158—GT339
OHWOODSDALE7158—GT437
OHWOODSDALE7158—GT540
OHWOODSDALE7158—GT639
PAAES BEAVER VALLEY10676032144
PAAES BEAVER VALLEY10676033131
PAAES BEAVER VALLEY10676034133
PAAES BEAVER VALLEY1067603567
PAARMSTRONG31781363
PAARMSTRONG31782383
PABRUCE MANSFIELD609411,657
PABRUCE MANSFIELD609421,672
PABRUCE MANSFIELD609431,636
PABRUNNER ISLAND31401568
PABRUNNER ISLAND31402718
PABRUNNER ISLAND314031,539
PABRUNOT ISLAND30962A0
PABRUNOT ISLAND30962B0
PABRUNOT ISLAND309630
PACAMBRIA COGEN106411155
PACAMBRIA COGEN106412161
PACHESWICK822611,119
PACOLVER POWER PROJECT101431291
PACONEMAUGH311812,167
PACONEMAUGH311821,995
PACROMBY31591377
PACROMBY31592201
PADELAWARE31607161
PADELAWARE31608156
PAEBENSBURG POWER106031191
PAEDDYSTONE31611565
PAEDDYSTONE31612636
PAEDDYSTONE31613207
PAEDDYSTONE31614237
PAELRAMA30981214
PAELRAMA30982209
PAELRAMA30983208
PAELRAMA30984428
PAFOSTER WHEELER MT. CARMEL10343AB__NUG152
PAGILBERTON POWER NUG010113AB__NUG273
PAGPU GENCO WAYNE313418
PAHATFIELD'S FERRY317911,155
PAHATFIELD'S FERRY317921,029
PAHATFIELD'S FERRY317931,087
PAHOLTWOOD314517246
PAHOMER CITY312211,471
PAHOMER CITY312221,553
PAHOMER CITY312231,437
PAHUNLOCK PWR STATION31766131
PAKEYSTONE313612,154
PAKEYSTONE313622,133
PAKIMBERLY-CLARK315710211
PAMARTINS CREEK31481314
PAMARTINS CREEK31482293
PAMARTINS CREEK31483543
PAMARTINS CREEK31484500
PAMITCHELL3181110
PAMITCHELL318126
PAMITCHELL318139
PAMITCHELL318133556
PAMONTOUR314911,560
PAMONTOUR314921,673
PAMOUNTAIN311115
PAMOUNTAIN311125
PANEW CASTLE31383190
PANEW CASTLE31384195
PANEW CASTLE31385245
PANORCON POWER PARTNERS LP545711103
PANORCON POWER PARTNERS LP545712109
PANORTHAMPTION GENERATING508881291
PANORTHEASTERN POWER50039188
PAPANTHER CREEK507761134
PAPANTHER CREEK507762130
PAPECO ENERGY CROYDEN80121111
PAPECO ENERGY CROYDEN8012129
PAPECO ENERGY CROYDEN8012215
PAPECO ENERGY CROYDEN80122211
PAPECO ENERGY CROYDEN80123113
PAPECO ENERGY CROYDEN8012326
PAPECO ENERGY CROYDEN80124111
PAPECO ENERGY CROYDEN8012429
PAPECO ENERGY RICHMOND31689110
PAPECO ENERGY RICHMOND3168929
PAPHILLIPS POWER STATION309930
PAPHILLIPS POWER STATION309940
PAPHILLIPS POWER STATION309950
PAPHILLIPS POWER STATION309960
PAPINEY CREEK541441102
PAPORTLAND3113—548
PAPORTLAND31131266
PAPORTLAND31132412
PASCHUYLKILL3169184
PASCHUYLKILL ENERGY RESOURCES8800101289
PASCHUYLKILL STATION (TURBI50607AB__NUG701
PASCRUBGRASS GENERATING PLANT509741124
PASCRUBGRASS GENERATING PLANT509742123
PASEWARD31301264
PASEWARD31301472
PASEWARD313015355
PASHAWVILLE31311295
PASHAWVILLE31312294
PASHAWVILLE31313380
PASHAWVILLE31314392
PASUNBURY31521A134
PASUNBURY31521B122
PASUNBURY31522A130
PASUNBURY31522B134
PASUNBURY31523263
PASUNBURY31524302
PATITUS31151161
PATITUS31152152
PATITUS31153151
PATOLNA311613
PATOLNA311624
PATRIGEN ENERGY SANSOM880006112
PATRIGEN ENERGY SANSOM880006210
PATRIGEN ENERGY SANSOM88000635
PATRIGEN ENERGY SANSOM88000646
PAWARREN3132147
PAWARREN3132232
PAWARREN3132340
PAWARREN3132442
PAWARREN3132CT114
PAWESTWOOD ENERGY PROPERTIE5061103198
PAWHEELABRATOR FRACKVILLE E50879GEN1161
PAWILLIAMS GEN—HAZELTON10870HRSG16
PAWILLIAMS GEN—HAZELTON10870TURBN141
VABELLMEADE7696176
VABELLMEADE7696288
VABREMO BLUFF37963137
VABREMO BLUFF37964386
VACHESAPEAKE38031298
VACHESAPEAKE38032308
VACHESAPEAKE38033370
VACHESAPEAKE38034571
VACHESAPEAKE CORP.10017ST__rp.59
VACHESTERFIELD3797—8263
VACHESTERFIELD37973232
VACHESTERFIELD37974389
VACHESTERFIELD37975769
VACHESTERFIELD379761,348
VACHESTERFIELD37977316
VACLINCH RIVER37751548
VACLINCH RIVER37752520
VACLINCH RIVER37753575
VACLOVER721311,033
VACLOVER721321,118
VACOGENTRIX—HOPEWELL10377ST__ell327
VACOGENTRIX—PORTSMOUTH10071ST__uth356
VACOGENTRIX RICHMOND 154081ST__d 1299
VACOGENTRIX RICHMOND 254081ST__d 2209
VACOMMONWEALTH ATLANTIC LP52087GT__LP35
VADARBYTOWN7212—129
VADARBYTOWN7212—228
VADARBYTOWN7212—330
VADARBYTOWN7212—429
VADOSWELL #152019CA__#146
VADOSWELL #152019CT__#194
VADOSWELL #252019CA__#246
VADOSWELL #252019CT__#294
VAGLEN LYN377651101
VAGLEN LYN377652110
VAGLEN LYN37766487
VAGORDONSVILLE 154844CA__e 116
VAGORDONSVILLE 154844CT__e 133
VAGORDONSVILLE 254844CA__Xe 217
VAGORDONSVILLE 254844CT__e 234
VAGRAVEL NECK7032—321
VAGRAVEL NECK7032—X424
VAGRAVEL NECK7032—514
VAGRAVEL NECK7032—618
VAHOPEWELL COGEN, INC.10633CT__nc.102
VAHOPEWELL COGEN, INC.10633CW__nc.53
VALG&E-WESTMORELAND ALTAVISTA10773118
VALG&E-WESTMORELAND ALTAVISTA10773218
VALG&E-WESTMORELAND HOPEWELL10771117
VALG&E-WESTMORELAND HOPEWELL10771216
VALG&E-WESTMORELAND SOUTHAMPTON10774123
VALG&E-WESTMORELAND SOUTHAMPTON10774229
VAMECKLENBURG52007ST__urg234
VAPOSSUM POINT38043221
VAPOSSUM POINT38044528
VAPOSSUM POINT38045322
VAPOTOMAC RIVER37881203
VAPOTOMAC RIVER37882139
VAPOTOMAC RIVER37883232
VAPOTOMAC RIVER37884223
VAPOTOMAC RIVER37885222
VASEI BIRCHWOOD121305
VATASLEY3785106
VAYORKTOWN38091386
VAYORKTOWN38092419
VAYORKTOWN38093764
WVALBRIGHT3942176
WVALBRIGHT3942271
WVALBRIGHT39423241
WVFORT MARTIN39431887
WVFORT MARTIN39432868
WVGRANT TOWN10151ST__own156
WVHARRISON394411,385
WVHARRISON394421,444
WVHARRISON394431,505
WVJOHN E AMOS393511,254
WVJOHN E AMOS393521,198
WVJOHN E AMOS393531,859
WVKAMMER39471399
WVKAMMER39472418
WVKAMMER39473447
WVKANAWHA RIVER39361336
WVKANAWHA RIVER39362323
WVMITCHELL394811,288
WVMITCHELL394821,191
WVMORGANTOWN ENERGY ASSOCIATES27180
WVMORGANTOWN ENERGY ASSOCIATES27280
WVMOUNTAINEER (1301)626411,952
WVMT STORM395411,048
WVMT STORM395421,127
WVMT STORM395431,236
WVNORTH BRANCH75371A51
WVNORTH BRANCH75371B53
WVPHIL SPORN393811239
WVPHIL SPORN393821215
WVPHIL SPORN393831239
WVPHIL SPORN393841230
WVPHIL SPORN393851708
WVPLEASANTS600411,296
WVPLEASANTS600421,165
WVRIVESVILLE3945738
WVRIVESVILLE3945888
WVWILLOW ISLAND3946179
WVWILLOW ISLAND39462246

[65 FR 2727, Jan. 18, 2000, as amended at 66 FR 48575, Sept. 21, 2001. Redesignated at 81 FR 74650, Oct. 26, 2016]

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Appendix B to Subpart E of Part 97—Final Section 126 Rule: Non-EGU Allocations, 2004-2007

StateCounty Plant Plant ID Point ID NOX allocation for non-EGUs
DCWashingtonGSA CENTRAL HEATING PLANT00250030
DCWashingtonGSA CENTRAL HEATING PLANT00250040
DCWashingtonGSA CENTRAL HEATING PLANT00250050
DCWashingtonGSA CENTRAL HEATING PLANT00250060
DCWashingtonGSA WEST HEATING PLANT002400313
DCWashingtonGSA WEST HEATING PLANT002400512
DEKentKRAFT FOODS INC00070010
DENew CastleMOTIVA ENTERPRISES (FORMERLY STAR ENTERPRISE, DELAWARE CITY PLANT)0016002102
DENew CastleMOTIVA ENTERPRISES (FORMERLY STAR ENTERPRISE, DELAWARE CITY PLANT)0016012118
KYBoydASHLAND OIL INC000406123
KYLawrenceKENTUCKY POWER CO00030040
MDBaltimoreBETHLEHEM STEEL014701675
MDBaltimoreBETHLEHEM STEEL014701775
MDBaltimoreBETHLEHEM STEEL014701875
MDBaltimoreBETHLEHEM STEEL014701975
MDAlleganyWESTVACO0011001289
MDAlleganyWESTVACO0011002373
MIWayneDETROIT EDISON COB2810000331
MIMidlandDOW CHEMICAL USAA403304016
MIMidlandDOW CHEMICAL USAA403304020
MIWayneDSC LTDB3680000630
MIGeneseeGENERAL MOTORS CORPA1178050163
MIGeneseeGENERAL MOTORS CORPA1178050247
MIOaklandGENERAL MOTORS CORPB4031050622
MIGeneseeGENERAL MOTORS CORPA1178050720
MIOaklandGENERAL MOTORS CORPB403205104
MIKalamazooGEORGIA PACIFIC CORPB420900056
MIKalamazooJAMES RIVER PAPER CO INCB1678000390
MIWayneMARATHON OIL COMPANYA98310001109
MIAlleganMENASHA CORPA0023002471
MIAlleganMENASHA CORPA0023002569
MIInghamMICHIGAN STATE UNIVERSITYK32490053110
MIInghamMICHIGAN STATE UNIVERSITYK32490054118
MIInghamMICHIGAN STATE UNIVERSITYK3249005577
MIInghamMICHIGAN STATE UNIVERSITYK3249005673
MIWashtenawTHE REGENTS OF THE UNIVERSITY OF MICHIGANM0675000140
MIWashtenawTHE REGENTS OF THE UNIVERSITY OF MICHIGANM0675000237
MIOaklandWILLIAM BEAUMONT HOSPITALG506700100
MIOaklandWILLIAM BEAUMONT HOSPITALG506700110
NCHaywoodBLUE RIDGE PAPER PRODUCTS INC0159005129
NCHaywoodCHAMPION INT CORP015900198
NCHaywoodCHAMPION INT CORP015900288
NCHaywoodCHAMPION INT CORP0159003200
NCHaywoodCHAMPION INT CORP0159004176
NCHalifaxCHAMPION INTERNATIONAL CORP. ROANOKE RAP0007001340
NCGuilfordCONE MILLS CORP—WHITE OAK PLANT086300450
NCCabarrusFIELDCREST—CANNON PLT 1 KANNAPOLIS000600177
NCColumbusINTERNATIONAL PAPER: RIEGELWOOD003600390
NCColumbusINTERNATIONAL PAPER: RIEGELWOOD0036004228
NCMartinWEYERHAEUSER PAPER CO. PLYMOUTH0069001265
NCCravenWEYERHAUSER COMPANY NEW BERN MILL0104005205
NCCravenWEYERHAEUSER COMPANY NEW BERN MILL010400672
NCMartinWEYERHAEUSER COMPANY PLYMOUTH006900925
NJMiddlesexBALL—INCON GLASS PACKAGING1503500146
NJHudsonBEST FOODS CPC INTERNATIONAL I1000300327
NJMiddlesexCHEVRON U.S.A., INC1502300117
NJMiddlesexCHEVRON U.S.A., INC1502304355
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN550040013
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN5500403811
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN5500403911
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN5500404011
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN5500406438
NJGloucesterCOASTAL EAGLE POINT OIL COMPAN5500412337
NJMiddlesexDEGUSSA CORPORATION-METZ DIVIS1530500915
NJUnionEXXON CORPORATION4000300157
NJUnionEXXON CORPORATION4000300722
NJUnionEXXON CORPORATION4000301498
NJUnionEXXON CORPORATION4000301514
NJMiddlesexHERCULES INCORPORATED1501700138
NJMiddlesexHERCULES INCORPORATED1501700237
NJWarrenHOFFMAN LAROCHE INC8501003445
NJMercerHOMASCTE COMPANY60018001290
NJMercerHOMASCTE COMPANY60018002312
NJPassaicINTERNATIONAL VEILING CORPORAT3009800122
NJBergenMALT PRODUCTS CORPORATION0032200127
NJAtlanticMARINA ASSOCIATES70009001330
NJAtlanticMARINA ASSOCIATES70009002329
NJAtlanticMARINA ASSOCIATES70009003990
NJUnionMERCK & CO., INC4000900166
NJUnionMERCK & CO., INC4000900261
NJUnionMERCK & CO., INC4000900356
NJUnionMERCK & CO., INC4000900475
NJUnionMERCK & CO., INC4000900589
NJUnionMERCK & CO., INC40009006103
NJGloucesterMOBIL OIL CORPORATION5500600154
NJGloucesterMOBIL OIL CORPORATION5500600254
NJGloucesterMOBIL OIL CORPORATION5500600354
NJGloucesterMOBIL OIL CORPORATION5500600449
NJGloucesterMOBIL OIL CORPORATION5500600516
NJGloucesterMOBIL OIL CORPORATION55006006105
NJGloucesterMOBIL OIL CORPORATION550060270
NJGloucesterMOBIL OIL CORPORATION5500627014
NJMonmouthNESTLE CO., INC., THE2000400613
NJMonmouthNESTLE CO., INC., THE2000400713
NJMiddlesexNEW JERSEY STEEL CORPORATION1507600118
NJGloucesterPETROLEUM RECYCLING, INC55180020169
NJAtlanticSCOTT PAPER COMPANY7001100289
NJAtlanticSCOTT PAPER COMPANY7001100375
NJAtlanticSCOTT PAPER COMPANY7001100499
NJMercerSTONY BROOK REGIONAL SEWERAGE6024800155
NJMercerSTONY BROOK REGIONAL SEWERAGE6024800255
NYKingsHUDSON AVENUE2496B7119
NYKingsHUDSON AVENUE2496B7219
NYKingsHUDSON AVENUE2496B8119
NYKingsHUDSON AVENUE2496B8219
NYQueensRAVENSWOOD-A-HOUSECE03B0115
NYQueensRAVENSWOOD-A-HOUSECE03B0215
NYQueensRAVENSWOOD-A-HOUSECE03B0321
NYQueensRAVENSWOOD-A-HOUSECE03B0421
OHButlerAK STEEL (FORMERLY ARMCO STEEL CO.)1409010006P00966
OHButlerAK STEEL (FORMERLY ARMCO STEEL CO.)1409010006P01066
OHButlerAK STEEL (FORMERLY ARMCO STEEL CO.)1409010006P01166
OHButlerAK STEEL (FORMERLY ARMCO STEEL CO.)1409010006P01266
OHStarkASHLAND PETROLEUM COMPANY1576000301B01518
OHLucasBP OIL COMPANY, TOLEDO REFINERY0448020007B00439
OHLucasBP OIL COMPANY, TOLEDO REFINERY0448020007B020102
OHMontgomeryCARGILL INCORPORATED0857041124B004133
OHMontgomeryCARGILL INCORPORATED0857041124B0061
OHButlerCHAMPION INTERNATIONAL CORP1409040212B010267
OHSummitGOODYEAR TIRE & RUBBER COMPANY1677010193B001101
OHSummitGOODYEAR TIRE & RUBBER COMPANY1677010193B002108
OHHamiltonHENKEL CORP.—EMERY GROUP1431070035B027209
OHCuyahogaLTV STEEL COMPANY, INC1318001613B001139
OHCuyahogaLTV STEEL COMPANY, INC1318001613B002150
OHCuyahogaLTV STEEL COMPANY, INC1318001613B003159
OHCuyahogaLTV STEEL COMPANY, INC1318001613B004158
OHCuyahogaLTV STEEL COMPANY, INC1318001613B007155
OHCuyahogaLTV STEEL COMPANY, INC1318001613B90514
OHRossMEAD CORPORATION0671010028B001185
OHRossMEAD CORPORATION0671010028B002208
OHRossMEAD CORPORATION0671010028B003251
OHSciotoNEW BOSTON COKE CORP0773010004B00820
OHSciotoNEW BOSTON COKE CORP0773010004B00915
OHHamiltonPROCTER & GAMBLE CO1431390903B02172
OHHamiltonPROCTER & GAMBLE CO1431390903B022296
OHLorainREPUBLIC ENGINEERED STEELS, INC. (FORMERLY USS/KOBE STEEL—LORAIN WORKS)0247080229B013159
OHLawrenceSOUTH POINT ETHANOL0744000009B003107
OHLawrenceSOUTH POINT ETHANOL0744000009B004107
OHLawrenceSOUTH POINT ETHANOL0744000009B007107
OHLucasSUN REFINING & MARKETING CO, TOLEDO REF0448010246B04447
OHLucasSUN REFINING & MARKETING CO, TOLEDO REF0448010246B04634
OHLucasSUN REFINING & MARKETING CO, TOLEDO REF0448010246B04718
OHTrumbullW C I STEEL, INC0278000463B001113
OHTrumbullW C I STEEL, INC0278000463B004142
PANorthamptonBETHLEHEM STEEL CORP0048041100
PANorthamptonBETHLEHEM STEEL CORP004804266
PANorthamptonBETHLEHEM STEEL CORP0048067165
PAArmstrongBMG ASPHALT CO00041010
PAErieGENERAL ELECTRIC000903216
PAYorkGLATFELTER, P. H. CO00160310
PAYorkGLATFELTER, P. H. CO0016034137
PAYorkGLATFELTER, P. H. CO0016035112
PAYorkGLATFELTER, P. H. CO0016036211
PAClintonINTERNATIONAL PAPER: LOCKHAVEN0008033101
PAClintonINTERNATIONAL PAPER: LOCKHAVEN000803490
PADelawareKIMBERLY CLARK (FORMERLY SCOTT PAPER CO.)00160341
PADelawareKIMBERLY CLARK (FORMERLY SCOTT PAPER CO.)0016035345
PAAlleghenyLTV STEEL COMPANY—PITTSBURGH WORKS002201525
PAAlleghenyLTV STEEL COMPANY—PITTSBURGH WORKS002201715
PAAlleghenyLTV STEEL COMPANY—PITTSBURGH WORKS002201929
PAAlleghenyLTV STEEL COMPANY—PITTSBURGH WORKS002202155
PAMontgomeryMERCK SHARP & DOHME0028039126
PAWestmorelandMONESSEN INC00070310
PABucksPECO005504315
PABucksPECO005504532
PABucksPECO005504477
PAWyomingPROCTER & GAMBLE CO0009035187
PAAlleghenySHENANGO IRON & COKE WORKS005000618
PAAlleghenySHENANGO IRON & COKE WORKS005000915
PADelawareSUN REFINING & MARKETING CO0025089102
PADelawareSUN REFINING & MARKETING CO0025090163
PAPhiladelphiaSUN REFINING AND MARKETING 1 O150102049
PAPhiladelphiaSUN REFINING AND MARKETING 1 O150102183
PAPhiladelphiaSUN REFINING AND MARKETING 1 O1501022105
PAPhiladelphiaSUN REFINING AND MARKETING 1 O1501023127
PAPhiladelphiaSUNOCO (FORMERLY ALLIED CHEMICAL CORP)155105286
PAPerryTEXAS EASTERN GAS PIPELINE COMPANY00010310
PABerksTEXAS EASTERN GAS PIPELINE COMPANY008703198
PADelawareTOSCO REFINING (FORMERLY BP OIL, INC.)003003271
PADelawareTOSCO REFINING (FORMERLY BP OIL, INC.)003003380
PAPhiladelphiaU.S. NAVAL BASE97020160
PAPhiladelphiaU.S. NAVAL BASE97020171
PAPhiladelphiaU.S. NAVAL BASE97020980
PAPhiladelphiaU.S. NAVAL BASE97020990
PAElkWILLAMETTE INDUSTRIES (FORMERLY PENNTECH PAPERS, INC000504090
PAElkWILLAMETTE INDUSTRIES (FORMERLY PENNTECH PAPERS, INC000504189
PABeaverZINC CORPORATION OF AMERICA0032034176
PABeaverZINC CORPORATION OF AMERICA0032035180
VAHopewellALLIED-SIGNAL INC0026002499
VAYorkAMOCO OIL CO000400125
VAGilesCELANESE ACETATE LLC (FORMERLY HOECHST CELANESE CORP)0004007148
VAGilesCELANESE ACETATE LLC (FORMERLY HOECHST CELANESE CORP)000401456
VAPittsylvaniaDAN RIVER INC. (SCHOOLFIELD DIV)000200349
VABedfordGEORGIA-PACIFIC—BIG ISLAND MILL000300286
VAIsle Of WightINTERNATIONAL PAPER—FRANKLIN (FORMERLY UNION CAMP CORP/FINE PAPER DIV)0006003272
VAHopewellJAMES RIVER COGENERATION (COGE0055001511
VAHopewellJAMES RIVER COGENERATION (COGE0055002512
VAKing WilliamST. LAURENT PAPER PRODUCTS CORP.0001003253
VAAlleghanyWESTVACO CORP0003001253
VAAlleghanyWESTVACO CORP0003002130
VAAlleghanyWESTVACO CORP0003003195
VAAlleghanyWESTVACO CORP0003004373
VAAlleghanyWESTVACO CORP0003005170
VAAlleghanyWESTVACO CORP0003011105
WVKanawhaAVENTIS CROPSCIENCE00007010113
WVKanawhaAVENTIS CROPSCIENCE00007011102
WVKanawhaAVENTIS CROPSCIENCE00007012105
WVKanawhaDUPONT—BELLE0000161254
WVFayetteELKEM METALS COMPANY L.P.—ALLOY P PLANT00001006116
WVMarshallPPG INDUSTRIES, INC00002001195
WVMarshallPPG INDUSTRIES, INC00002003419
WVKanawhaRHONE-POLUENC000070708
WVKanawhaRHONE-POLUENC0000707173
WVKanawhaRHONE-POLUENC000070807
WVKanawhaRHONE-POLUENC0000708166
WVKanawhaRHONE-POLUENC000070908
WVKanawhaRHONE-POLUENC0000709168
WVKanawhaUNION CARBIDE—SOUTH CHARLESTON PLANT000030B666
WVKanawhaUNION CARBIDE—SOUTH CHARLESTON PLANT00030B692
WVKanawhaUNION CARBIDE—SOUTH CHARLESTON PLANT00030B745
WVHancockWEIRTON STEEL CORPORATION0000103031
WVHancockWEIRTON STEEL CORPORATION0000108830
WVHancockWEIRTON STEEL CORPORATION000010892
WVHancockWEIRTON STEEL CORPORATION00001090110
WVHancockWEIRTON STEEL CORPORATION00001091253
WVHancockWEIRTON STEEL CORPORATION00001092208
WVHancockWEIRTON STEEL CORPORATION00001093200

[65 FR 2727, Jan. 18, 2000, as amended at 66 FR 48576, Sept. 21, 2001. Redesignated at 81 FR 74650, Oct. 26, 2016]

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Appendix C to Subpart E of Part 97—Final Section 126 Rule: Trading Budget

ST F126-EGU F126-NEGU Total
DC20726233
DE4,3062324,538
IN7,088827,170
KY19,6545319,707
MD14,5191,01315,532
MI25,6892,16627,855
NC31,2122,32933,541
NJ9,7164,83814,554
NY16,08115616,237
OH45,4324,10349,535
PA47,2243,61950,843
VA17,0914,10421,195
WV26,8592,18429,043
Total265,07824,905289,983

[65 FR 2727, Jan. 18, 2000. Redesignated at 81 FR 74650, Oct. 26, 2016.]

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Appendix D to Subpart E of Part 97—Final Section 126 Rule: State Compliance supplement pools for the Section 126 Final Rule (Tons)

State Compliance supplement pool
Delaware168
District of Columbia0
Indiana2,454
Kentucky7,314
Maryland3,882
Michigan9,398
New Jersey1,550
New York1,379
North Carolina10,737
Ohio22,301
Pennsylvania15,763
Virginia5,504
West Virginia16,709
Total97,159

[65 FR 2727, Jan. 18, 2000. Redesignated at 81 FR 74650, Oct. 26, 2016.]

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Subpart F—NOX Allowance Tracking System

§97.50   NOX Allowance Tracking System accounts.

(a) Nature and function of compliance accounts and overdraft accounts. Consistent with §97.51(a), the Administrator will establish one compliance account for each NOX Budget unit and one overdraft account for each source with two or more NOX Budget units. Allocations of NOX allowances pursuant to subpart E of this part or §97.88, and deductions or transfers of NOX allowances pursuant to §97.31, §96.54, §96.56, subpart G of this part, or subpart I of this part will be recorded in compliance accounts or overdraft accounts in accordance with this subpart.

(b) Nature and function of general accounts. Consistent with §97.51(b), the Administrator will establish, upon request, a general account for any person. Allocations of NOX allowances pursuant to §97.4(b)(4)(ii) or §97.5(c)(2) and transfers of allowances pursuant to subpart G of this part will be recorded in general accounts in accordance with this subpart.

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§97.51   Establishment of accounts.

(a) Compliance accounts and overdraft accounts. Upon receipt of a complete account certificate of representation under §97.13, the Administrator will establish:

(1) A compliance account for each NOX Budget unit for which the account certificate of representation was submitted; and

(2) An overdraft account for each source for which the account certificate of representation was submitted and that has two or more NOX Budget units.

(b) General accounts—(1) Application for general account. (i) Any person may apply to open a general account for the purpose of holding and transferring allowances. An application for a general account may designate one and only one NOX authorized account representative and one and only one alternate NOX authorized account representative who may act on behalf of the NOX authorized account representative. The agreement by which the alternate NOX authorized account representative is selected shall include a procedure for authorizing the alternate NOX authorized account representative to act in lieu of the NOX authorized account representative. A complete application for a general account shall be submitted to the Administrator and shall include the following elements in a format prescribed by the Administrator:

(A) Name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NOX authorized account representative and any alternate NOX authorized account representative;

(B) At the option of the NOX authorized account representative, organization name and type of organization;

(C) A list of all persons subject to a binding agreement for the NOX authorized account representative and any alternate NOX authorized account representative to represent their ownership interest with respect to the allowances held in the general account;

(D) The following certification statement by the NOX authorized account representative and any alternate NOX authorized account representative: “I certify that I was selected as the NOX authorized account representative or the NOX alternate authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to NOX allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NOX Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account.;”

(E) The signature of the NOX authorized account representative and any alternate NOX authorized account representative and the dates signed.

(ii) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

(2) Authorization of NOX authorized account representative. Upon receipt by the Administrator of a complete application for a general account under paragraph (b)(1) of this section:

(i) The Administrator will establish a general account for the person or persons for whom the application is submitted.

(ii) The NOX authorized account representative and any alternate NOX authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to NOX allowances held in the general account in all matters pertaining to the NOX Budget Trading Program, not withstanding any agreement between the NOX authorized account representative or any alternate NOX authorized account representative and such person. Any such person shall be bound by any order or decision issued to the NOX authorized account representative or any alternate NOX authorized account representative by the Administrator or a court regarding the general account.

(iii) Any representation, action, inaction, or submission by any alternate NOX authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NOX authorized account representative.

(iv) Each submission concerning the general account shall be submitted, signed, and certified by the NOX authorized account representative or any alternate NOX authorized account representative for the persons having an ownership interest with respect to NOX allowances held in the general account. Each such submission shall include the following certification statement by the NOX authorized account representative or any alternate NOX authorizing account representative: “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the NOX allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(v) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with paragraph (b)(2)(iv) of this section.

(3) Changing NOX authorized account representative and alternate NOX authorized account representative; changes in persons with ownership interest. (i) The NOX authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NOX authorized account representative prior to the time and date when the Administrator receives the superseding application for a general account shall be binding on the new NOX authorized account representative and the persons with an ownership interest with respect to the NOX allowances in the general account.

(ii) The alternate NOX authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate NOX authorized account representative prior to the time and date when the Administrator receives the superseding application for a general account shall be binding on the new alternate NOX authorized account representative and the persons with an ownership interest with respect to the NOX allowances in the general account.

(iii)(A) In the event a new person having an ownership interest with respect to NOX allowances in the general account is not included in the list of such persons in the account certificate of representation, such new person shall be deemed to be subject to and bound by the account certificate of representation, the representation, actions, inactions, and submissions of the NOX authorized account representative and any alternate NOX authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the Administrator, as if the new person were included in such list.

(B) Within 30 days following any change in the persons having an ownership interest with respect to NOX allowances in the general account, including the addition of persons, the NOX authorized account representative or any alternate NOX authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the NOX allowances in the general account to include the change.

(4) Objections concerning NOX authorized account representative. (i) Once a complete application for a general account under paragraph (b)(1) of this section has been submitted and received, the Administrator will rely on the application unless and until a superseding complete application for a general account under paragraph (b)(1) of this section is received by the Administrator.

(ii) Except as provided in paragraph (b)(3)(i) or (ii) of this section, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NOX authorized account representative or any alternative NOX authorized account representative for a general account shall affect any representation, action, inaction, or submission of the NOX authorized account representative or any alternative NOX authorized account representative or the finality of any decision or order by the Administrator under the NOX Budget Trading Program.

(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the NOX authorized account representative or any alternative NOX authorized account representative for a general account, including private legal disputes concerning the proceeds of NOX allowance transfers.

(c) Account identification. The Administrator will assign a unique identifying number to each account established under paragraph (a) or (b) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21646, Apr. 21, 2004]

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§97.52   NOX Allowance Tracking System responsibilities of NOX authorized account representative.

(a) Following the establishment of a NOX Allowance Tracking System account, all submissions to the Administrator pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of NOX allowances in the account, shall be made only by the NOX authorized account representative for the account.

(b) Authorized account representative identification. The Administrator will assign a unique identifying number to each NOX authorized account representative.

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§97.53   Recordation of NOX allowance allocations.

(a) The Administrator will record the NOX allowances for 2004 for a NOX Budget unit allocated under subpart E of this part in the unit's compliance account, except for NOX allowances under §97.4(b)(4)(ii) or §97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NOX allowances for 2004 for a NOX Budget opt-in unit in the unit's compliance account as allocated under §97.88(a).

(b) By May 1, 2003, the Administrator will record the NOX allowances for 2005 for a NOX Budget unit allocated under subpart E of this part in the unit's compliance account, except for NOX allowances under §97.4(b)(4)(ii) or §97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NOX allowances for 2005 for a NOX Budget opt-in unit in the unit's compliance account as allocated under §97.88(a).

(c) By May 1, 2003, the Administrator will record the NOX allowances for 2006 for a NOX Budget unit allocated under subpart E of this part in the unit's compliance account, except for NOX allowances under §97.4(b)(4)(ii) or §97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NOX allowances for 2006 for a NOX Budget opt-in unit in the unit's compliance account as allocated under §97.88(a).

(d) By May 1, 2004, the Administrator will record the NOX allowances for 2007 for a NOX Budget unit allocated under subpart E of this part in the unit's compliance account, except for NOX allowances under §97.4(b)(4)(ii) or §97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NOX allowances for 2007 for a NOX Budget opt-in unit in the unit's compliance account as allocated under §97.88(a).

(e) Each year starting with 2005, after the Administrator has made all deductions from a NOX Budget unit's compliance account and the overdraft account pursuant to §97.54 (except deductions pursuant to §97.54(d)(2)), the Administrator will record:

(1) NOX allowances, in the compliance account, as allocated to the unit under subpart E of this part for the third year after the year of the control period for which such deductions were or could have been made;

(2) NOX allowances, in the general account specified by the owners and operators of the unit, as allocated under §97.4(b)(4)(ii) or §97.5(c)(2) for the third year after the year of the control period for which such deductions are or could have been made; and

(3) NOX allowances, in the compliance account, as allocated to the unit under §97.88(a).

(f) Serial numbers for allocated NOX allowances. When allocating NOX allowances to a NOX Budget unit and recording them in an account, the Administrator will assign each NOX allowance a unique identification number that will include digits identifying the year for which the NOX allowance is allocated.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr. 30, 2002]

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§97.54   Compliance.

(a) NOX allowance transfer deadline. The NOX allowances are available to be deducted for compliance with a unit's NOX Budget emissions limitation for a control period in a given year only if the NOX allowances:

(1) Were allocated for a control period in a prior year or the same year; and

(2) Are held in the unit's compliance account, or the overdraft account of the source where the unit is located, as of the NOX allowance transfer deadline for that control period or are transferred into the compliance account or overdraft account by a NOX allowance transfer correctly submitted for recordation under §97.60 by the NOX allowance transfer deadline for that control period.

(b) Deductions for compliance. (1) Following the recordation, in accordance with §97.61, of NOX allowance transfers submitted for recordation in the unit's compliance account or the overdraft account of the source where the unit is located by the NOX allowance transfer deadline for a control period, the Administrator will deduct NOX allowances available under paragraph (a) of this section to cover the unit's NOX emissions (as determined in accordance with subpart H of this part), or to account for actual heat input under §97.42(e), for the control period:

(i) From the compliance account; and

(ii) Only if no more NOX allowances available under paragraph (a) of this section remain in the compliance account, from the overdraft account. In deducting allowances for units at the source from the overdraft account, the Administrator will begin with the unit having the compliance account with the lowest account number and end with the unit having the compliance account with the highest account number (with account numbers sorted beginning with the left-most character and ending with the right-most character and the letter characters assigned values in alphabetical order and less than all numeric characters).

(2) The Administrator will deduct NOX allowances first under paragraph (b)(1)(i) of this section and then under paragraph (b)(1)(ii) of this section:

(i) Until the number of NOX allowances deducted for the control period equals the number of tons of NOX emissions, determined in accordance with subpart H of this part, from the unit for the control period for which compliance is being determined, plus the number of NOX allowances required for deduction to account for actual heat input under §97.42(e) for the control period; or

(ii) Until no more NOX allowances available under paragraph (a) of this section remain in the respective account.

(c)(1) Identification of NOX allowances by serial number. The NOX authorized account representative for each compliance account may identify by serial number the NOX allowances to be deducted from the unit's compliance account under paragraph (b), (d), (e), or (f) of this section. Such identification shall be made in the compliance certification report submitted in accordance with §97.30.

(2) First-in, first-out. The Administrator will deduct NOX allowances for a control period from the compliance account, in the absence of an identification or in the case of a partial identification of NOX allowances by serial number under paragraph (c)(1) of this section, or the overdraft account on a first-in, first-out (FIFO) accounting basis in the following order:

(i) Those NOX allowances that were allocated for the control period to the unit under subpart E or I of this part;

(ii) Those NOX allowances that were allocated for the control period to any unit and transferred and recorded in the account pursuant to subpart G of this part, in order of their date of recordation;

(iii) Those NOX allowances that were allocated for a prior control period to the unit under subpart E or I of this part; and

(iv) Those NOX allowances that were allocated for a prior control period to any unit and transferred and recorded in the account pursuant to subpart G of this part, in order of their date of recordation.

(d) Deductions for excess emissions. (1) After making the deductions for compliance under paragraph (b) of this section, the Administrator will deduct from the unit's compliance account or the overdraft account of the source where the unit is located a number of NOX allowances, allocated for a control period after the control period in which the unit has excess emissions, equal to three times the number of the unit's excess emissions.

(2) If the compliance account or overdraft account does not contain sufficient NOX allowances, the Administrator will deduct the required number of NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in either account.

(3) Any allowance deduction required under paragraph (d) of this section shall not affect the liability of the owners and operators of the NOX Budget unit for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act or applicable State law. The following guidelines will be followed in assessing fines, penalties or other obligations:

(i) For purposes of determining the number of days of violation, if a NOX Budget unit has excess emissions for a control period, each day in the control period (153 days) constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.

(ii) Each ton of excess emissions is a separate violation.

(e) Deductions for units sharing a common stack. In the case of units sharing a common stack and having emissions that are not separately monitored or apportioned in accordance with subpart H of this part:

(1) The NOX authorized account representative of the units may identify the percentage of NOX allowances to be deducted from each such unit's compliance account to cover the unit's share of NOX emissions from the common stack for a control period. Such identification shall be made in the compliance certification report submitted in accordance with §97.30.

(2) Notwithstanding paragraph (b)(2)(i) of this section, the Administrator will deduct NOX allowances for each such unit until the number of NOX allowances deducted equals the unit's identified percentage under paragraph (e)(1) of this section or, if no percentage is identified, an equal percentage for each unit multiplied by the number of tons of NOX emissions, as determined in accordance with subpart H of this part, from the common stack for the control period for which compliance is being determined. In addition to the deductions under the first sentence of this paragraph (e)(1), the Administrator will deduct NOX allowances for each such unit until the number of NOX allowances deducted equals the number of NOX allowances required to account for actual heat input under §97.42(e) for the unit for the control period.

(f) Deduction of banked allowances. Each year starting in 2006, after the Administrator has completed the designation of banked NOX allowances under §97.55(b) and before May 1 of the year, the Administrator will determine the extent to which banked NOX allowances otherwise available under paragraph (a) of this section are available for compliance in the control period for the current year, as follows. For each State NOX Budget Trading Program that is established, and approved and administered by the Administrator pursuant to §51.121 of this chapter, the terms “compliance account” or “compliance accounts”, “overdraft account” or “overdraft accounts”, “general account” or “general accounts”, “States”, and “trading program budgets under §97.40” in paragraphs (f)(1) through (f)(3) of this section shall be read to include respectively: A compliance account or compliance accounts established under such State NOX Budget Trading Program; an overdraft account or overdraft accounts established under such State NOX Budget Trading Program; a general account or general accounts established under such State NOX Budget Trading Program; the State or portion of a State covered by such State NOX Budget Trading Program; and the trading program budget of the State or portion of a State covered by such State NOX Budget Trading Program.

(1) The Administrator will determine the total number of banked NOX allowances held in compliance accounts, overdraft accounts, or general accounts.

(2) If the total number of banked NOX allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts is less than or equal to 10 percent of the sum of the trading program budgets under §97.40 for all States for the control period, any banked NOX allowance may be deducted for compliance in accordance with paragraphs (a) through (e) of this section.

(3) If the total number of banked NOX allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts exceeds 10 percent of the sum of the trading program budgets under §97.40 for all States for the control period, any banked allowance may be deducted for compliance in accordance with paragraphs (a) through (e) of this section, except as follows:

(i) The Administrator will determine the following ratio: 0.10 multiplied by the sum of the trading program budgets under §97.40 for all States for the control period and divided by the total number of banked NOX allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts.

(ii) The Administrator will multiply the number of banked NOX allowances in each compliance account or overdraft account by the ratio determined under paragraph (f)(3)(i) of this section. The resulting product is the number of banked NOX allowances in the account that may be deducted for compliance in accordance with paragraphs (a) through (e) of this section. Any banked NOX allowances in excess of the resulting product may be deducted for compliance in accordance with paragraphs (a) through (e) of this section, except that, if such NOX allowances are used to make a deduction under paragraph (b) or (e) of this section, two (rather than one) such NOX allowances shall authorize up to one ton of NOX emissions during the control period and must be deducted for each deduction of one NOX allowance required under paragraph (b) or (e) of this section.

(g) Recordation of deductions. The Administrator will record in the appropriate compliance account or overdraft account all deductions from such an account pursuant to paragraph (b), (d), (e), or (f) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr. 30, 2002; 69 FR 21646, Apr. 21, 2004]

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§97.55   Banking.

NOX allowances may be banked for future use or transfer in a compliance account, an overdraft account, or a general account, as follows:

(a) Any NOX allowance that is held in a compliance account, an overdraft account, or a general account will remain in such account unless and until the NOX allowance is deducted or transferred under §97.31, §97.54, §97.56, or subpart G or I of this part.

(b) The Administrator will designate, as a “banked” NOX allowance, any NOX allowance that remains in a compliance account, an overdraft account, or a general account after the Administrator has made all deductions for a given control period from the compliance account or overdraft account pursuant to §97.54 (except deductions pursuant to §97.54(d)(2)) and that was allocated for that control period or a control period in a prior year.

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§97.56   Account error.

The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any NOX Allowance Tracking System account. Within 10 business days of making such correction, the Administrator will notify the NOX authorized account representative for the account.

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§97.57   Closing of general accounts.

(a) The NOX authorized account representative of a general account may instruct the Administrator to close the account by submitting a statement requesting deletion of the account from the NOX Allowance Tracking System and by correctly submitting for recordation under §97.60 an allowance transfer of all NOX allowances in the account to one or more other NOX Allowance Tracking System accounts.

(b) If a general account shows no activity for a period of a year or more and does not contain any NOX allowances, the Administrator may notify the NOX authorized account representative for the account that the account will be closed and deleted from the NOX Allowance Tracking System following 20 business days after the notice is sent. The account will be closed after the 20-day period unless before the end of the 20-day period the Administrator receives a correctly submitted transfer of NOX allowances into the account under §97.60 or a statement submitted by the NOX authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.

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Subpart G—NOX Allowance Transfers

§97.60   Submission of NOX allowance transfers.

The NOX authorized account representatives seeking recordation of a NOX allowance transfer shall submit the transfer to the Administrator. To be considered correctly submitted, the NOX allowance transfer shall include the following elements in a format specified by the Administrator:

(a) The numbers identifying both the transferor and transferee accounts;

(b) A specification by serial number of each NOX allowance to be transferred; and

(c) The printed name and signature of the NOX authorized account representative of the transferor account and the date signed.

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§97.61   EPA recordation.

(a) Within 5 business days of receiving a NOX allowance transfer, except as provided in paragraph (b) of this section, the Administrator will record a NOX allowance transfer by moving each NOX allowance from the transferor account to the transferee account as specified by the request, provided that:

(1) The transfer is correctly submitted under §97.60; and

(2) The transferor account includes each NOX allowance identified by serial number in the transfer.

(b) A NOX allowance transfer that is submitted for recordation following the NOX allowance transfer deadline and that includes any NOX allowances allocated for a control period prior to or the same as the control period to which the NOX allowance transfer deadline applies will not be recorded until after the Administrator completes the recordation of NOX allowance allocations under §97.53 for the control period in the fourth year after the control period to which the NOX allowance transfer deadline applies.

(c) Where a NOX allowance transfer submitted for recordation fails to meet the requirements of paragraph (a) of this section, the Administrator will not record such transfer.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21647, Apr. 21, 2004]

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§97.62   Notification.

(a) Notification of recordation. Within 5 business days of recordation of a NOX allowance transfer under §97.61, the Administrator will notify the NOX authorized account representatives of both the transferor and transferee accounts.

(b) Notification of non-recordation. Within 10 business days of receipt of a NOX allowance transfer that fails to meet the requirements of §97.61(a), the Administrator will notify the NOX authorized account representatives of both accounts subject to the transfer of:

(1) A decision not to record the transfer; and

(2) The reasons for such non-recordation.

(c) Nothing in this section shall preclude the submission of a NOX allowance transfer for recordation following notification of non-recordation.

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Subpart H—Monitoring and Reporting

§97.70   General requirements.

The owners and operators, and to the extent applicable, the NOX authorized account representative of a NOX Budget unit, shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this subpart and in subpart H of part 75 of this chapter. For purposes of complying with such requirements, the definitions in §97.2 and in §72.2 of this chapter shall apply, and the terms “affected unit,” “designated representative,” and “continuous emission monitoring system” (or “CEMS”) in part 75 of this chapter shall be deemed to refer to the terms “NOX Budget unit,” “NOX authorized account representative,” and “continuous emission monitoring system” (or “CEMS”) respectively, as defined in §97.2. The owner or operator of a unit that is not a NOX Budget unit but that is monitored under §75.72(b)(2)(ii) of this chapter shall comply with the monitoring, recordkeeping, and reporting requirements for a NOX Budget unit under this part.

(a) Requirements for installation, certification, and data accounting. The owner or operator of each NOX Budget unit shall meet the following requirements. These provisions shall also apply to a unit for which an application for a NOX Budget opt-in permit is submitted and not denied or withdrawn, as provided in subpart I of this part:

(1) Install all monitoring systems required under this subpart for monitoring NOX mass emissions. This includes all systems required to monitor NOX emission rate, NOX concentration, heat input rate, and stack flow rate, in accordance with §§75.71 and 75.72 of this chapter.

(2) Install all monitoring systems for monitoring heat input rate.

(3) Successfully complete all certification tests required under §97.71 and meet all other requirements of this subpart and part 75 of this chapter applicable to the monitoring systems under paragraphs (a)(1) and (2) of this section.

(4) Record, report, and quality-assure the data from the monitoring systems under paragraphs (a)(1) and (2) of this section.

(b) Compliance deadlines. The owner or operator shall meet the certification and other requirements of paragraphs (a)(1) through (a)(3) of this section on or before the following dates. The owner or operator shall record, report and quality-assure the data from the monitoring systems under paragraphs (a)(1) and (a)(2) of this section on and after the following dates.

(1) For the owner or operator of a NOX Budget unit for which the owner or operator intends to apply for early reduction credits under §97.43, by May 1, 2001. If the owner or operator of a NOX Budget unit fails to meet this deadline, he or she is not eligible to apply for early reduction credits and is subject to the deadline under paragraph (b)(2) of this section.

(2) For the owner or operator of a NOX Budget unit under §97.4(a) that commences operation before January 1, 2003 and that is not subject to or does not meet the deadline under paragraph (b)(1) of this section, by May 1, 2003.

(3) For the owner or operator of a NOX Budget unit under §97.4(a) that commences operation on or after January 1, 2003 and that reports on an annual basis under §97.74(d) by the following dates:

(i) The earlier of 90 unit operating days after the date on which the unit commences commercial operation or 180 calendar days after the date on which the unit commences commercial operation; or

(ii) May 1, 2003, if the compliance date under paragraph (b)(3)(i) of this section is before May 1, 2003.

(4) For the owner or operator of a NOX Budget unit under §97.4(a) that commences operation on or after January 1, 2003 and that reports on a control period basis under §97.74(d)(2)(ii), by the following dates:

(i) The earlier of 90 unit operating days or 180 calendar days after the date on which the unit commences commercial operation, if this compliance date is during a control period; or

(ii) May 1 immediately following the compliance date under paragraph (b)(4)(i) of this section, if such compliance date is not during a control period.

(5) For the owner or operator of a NOX Budget unit that has a new stack or flue or add-on NOX emission controls for which construction is completed after the applicable deadline under paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under subpart I of this part and that reports on an annual basis under §97.74(d), by the earlier of 90 unit operating days or 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NOX emission controls.

(6) For the owner or operator of a NOX Budget unit that has a new stack or flue or add-on NOX emission controls for which construction is completed after the applicable deadline under paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under subpart I of this part and that reports on a control period basis under §97.74(d)(2)(ii), by the following dates:

(i) The earlier of 90 unit operating days or 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NOX emission controls, if this compliance date is during a control period; or

(ii) May 1 immediately following the compliance date under paragraph (b)(6)(i) of this section, if such compliance date is not during a control period.

(7) For the owner or operator of a unit for which an application for a NOX Budget opt-in permit is submitted and not denied or withdrawn, by the date specified under subpart I of this part.

(c) Commencement of data reporting. (1) The owner or operator of NOX Budget units under paragraph (b)(1) or (b)(2) of this section shall determine, record and report NOX mass emissions, heat input rate, and any other values required to determine NOX mass emissions (e.g., NOX emission rate and heat input rate, or NOX concentration and stack flow rate) in accordance with §75.70(g) of this chapter, beginning on the first hour of the applicable compliance deadline in paragraph (b)(1) or (b)(2) of this section.

(2) The owner or operator of a NOX Budget unit under paragraph (b)(3) or (b)(4) of this section shall determine, record and report NOX mass emissions, heat input rate, and any other values required to determine NOX mass emissions (e.g., NOX emission rate and heat input rate, or NOX concentration and stack flow rate) and electric and thermal output in accordance with §75.70(g) of this chapter, beginning on:

(i) The date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is during a control period; or

(ii) The first hour on May 1 of the first control period after the date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is not during a control period.

(3) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this section, the owner or operator may begin reporting NOX mass emission data and heat input data before the date and hour under paragraph (c)(2)(i) or (c)(2)(ii) of this section if the unit reports on an annual basis and if the required monitoring systems are certified before the applicable date and hour under paragraph (c)(1) or (c)(2) of this section.

(d) Prohibitions. (1) No owner or operator of a NOX Budget unit shall use any alternative monitoring system, alternative reference method, or any other alternative for the required continuous emission monitoring system without having obtained prior written approval in accordance with §97.75.

(2) No owner or operator of a NOX Budget unit shall operate the unit so as to discharge, or allow to be discharged, NOX emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this subpart and part 75 of this chapter, except as provided in §75.74 of this chapter.

(3) No owner or operator of a NOX Budget unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording NOX mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this subpart and part 75 of this chapter or except as provided in §75.74 of this chapter.

(4) No owner or operator of a NOX Budget unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved emission monitoring system under this subpart, except under any one of the following circumstances:

(i) During the period that the unit is covered by an exemption under §97.4(b) or §97.5 that is in effect;

(ii) The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this subpart and part 75 of this chapter, by the permitting authority for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

(iii) The NOX authorized account representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with §97.71(b)(2).

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr. 30, 2002; 69 FR 21647, Apr. 21, 2004]

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§97.71   Initial certification and recertification procedures.

(a) The owner or operator of a NOX Budget unit that is subject to an Acid Rain emissions limitation shall comply with the initial certification and recertification procedures of part 75 of this chapter for NOX-diluent CEMS, flow monitors, NOX concentration CEMS, or excepted monitoring systems under appendix E of part 75 of this chapter for NOX. under appendix D for heat input, or under §75.19 for NOX and heat input, except that:

(1) If, prior to January 1, 1998, the Administrator approved a petition under §75.17(a) or (b) of this chapter for apportioning the NOX emission rate measured in a common stack or a petition under §75.66 of this chapter for an alternative to a requirement in §75.17 of this chapter, the NOX authorized account representative shall resubmit the petition to the Administrator under §97.75(a) to determine if the approval applies under the NOX Budget Trading Program.

(2) For any additional CEMS required under the common stack provisions in §75.72 of this chapter or for any NOX concentration CEMS used under the provisions of §75.71(a)(2) of this chapter, the owner or operator shall meet the requirements of paragraph (b) of this section.

(b) The owner or operator of a NOX Budget unit that is not subject to an Acid Rain emissions limitation shall comply with the following initial certification and recertification procedures. The owner or operator of such a unit that qualifies to use the low mass emissions excepted monitoring methodology under §75.19 of this chapter or that qualifies to use an alternative monitoring system under subpart E of part 75 of this chapter shall comply with the following procedures, as modified by paragraph (c) or (d) of this section. The owner or operator of a NOX Budget unit that is subject to an Acid Rain emissions limitation and that requires additional CEMS under the common stack provisions in §75.72 of this chapter or uses a NOX concentration CEMS under §75.71(a)(2) of this chapter shall comply with the following procedures.

(1) Requirements for initial certification. The owner or operator shall ensure that each emission monitoring system required by subpart H of part 75 of this chapter (which includes the automated data acquisition and handling system) successfully completes all of the initial certification testing required under §75.20 of this chapter by the applicable deadline in §97.70(b). In addition, whenever the owner or operator installs an emission monitoring system in order to meet the requirements of this part in a location where no such emission monitoring system was previously installed, initial certification in accordance with §75.20 of this chapter is required.

(2) Requirements for recertification. Whenever the owner or operator makes a replacement, modification, or change in a certified emission monitoring system that may significantly affect the ability of the system to accurately measure or record NOX mass emissions or heat input rate or to meet the requirements of §75.21 of this chapter or appendix B to part 75 of this chapter, the owner or operator shall recertify the emission monitoring system in accordance with §75.20(b) of this chapter. Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify the continuous emissions monitoring system in accordance with §75.20(b) of this chapter. Examples of changes that require recertification include: replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site.

(3) Certification approval process for initial certification and recertification—(i) Notification of certification. The NOX authorized account representative shall submit to the Administrator, the appropriate EPA Regional Office and the permitting authority written notice of the dates of certification in accordance with §97.73.

(ii) Certification application. The NOX authorized account representative shall submit to the Administrator, the appropriate EPA Regional Office and the permitting authority a certification application for each emission monitoring system required under subpart H of part 75 of this chapter. A complete certification application shall include the information specified in subpart H of part 75 of this chapter.

(iii) Except for units using the low mass emission excepted methodology under §75.19 of this chapter, the provisional certification date for a monitor shall be determined in accordance with §75.20(a)(3) of this chapter. A provisionally certified monitor may be used under the NOX Budget Trading Program for a period not to exceed 120 days after receipt by the Administrator of the complete certification application for the monitoring system under paragraph (b)(3)(ii) of this section. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of part 75 of this chapter, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Administrator does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of receipt of the complete certification application by the Administrator.

(iv) Certification application formal approval process. The Administrator will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under paragraph (b)(3)(ii) of this section. In the event the Administrator does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of part 75 of this chapter and is included in the certification application will be deemed certified for use under the NOX Budget Trading Program.

(A) Approval notice. If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of part 75 of this chapter, then the Administrator will issue a written notice of approval of the certification application within 120 days of receipt.

(B) Incomplete application notice. A certification application will be considered complete when all of the applicable information required to be submitted under paragraph (b)(3)(ii) of this section has been received by the Administrator. If the certification application is not complete, then the Administrator will issue a written notice of incompleteness that sets a reasonable date by which the NOX authorized account representative must submit the additional information required to complete the certification application. If the NOX authorized account representative does not comply with the notice of incompleteness by the specified date, then the Administrator may issue a notice of disapproval under paragraph (b)(3)(iv)(C) of this section. The 120-day review period shall not begin prior to receipt of a complete certification application.

(C) Disapproval notice. If the certification application shows that any monitoring system or component thereof does not meet the performance requirements of this part, or if the certification application is incomplete and the requirement for disapproval under paragraph (b)(3)(iv)(B) of this section has been met, then the Administrator will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the Administrator and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification (as defined under §75.20(a)(3) of this chapter). The owner or operator shall follow the procedures for loss of certification in paragraph (b)(3)(v) of this section for each monitoring system that is disapproved for initial certification.

(D) Audit decertification. The Administrator may issue a notice of disapproval of the certification status of a monitor in accordance with §97.72(b).

(v) Procedures for loss of certification. If the Administrator issues a notice of disapproval of a certification application under paragraph (b)(3)(iv)(C) of this section or a notice of disapproval of certification status under paragraph (b)(3)(iv)(D) of this section, then:

(A) The owner or operator shall substitute the following values, for each hour of unit operation during the period of invalid data specified under §75.20(a)(4)(iii), §75.20(b)(5), §75.20(h)(4), or §75.21(e) and continuing until the date and hour specified under §75.20(a)(5)(i) of this chapter:

(1) For units that the owner or operator intends to monitor or monitors for NOX emission rate and heat input rate or intends to determine or determines NOX mass emissions using the low mass emission excepted methodology under §75.19 of this chapter, the maximum potential NOX emission rate and the maximum potential hourly heat input of the unit; and

(2) For units that the owner or operator intends to monitor or monitors for NOX mass emissions using a NOX pollutant concentration monitor and a flow monitor, the maximum potential concentration of NOX and the maximum potential flow rate of the unit under section 2 of appendix A of part 75 of this chapter.

(B) The NOX authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with paragraphs (b)(3)(i) and (ii) of this section.

(C) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Administrator's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.

(c) Initial certification and recertification procedures for low mass emission units using the excepted methodologies under §75.19 of this chapter. The owner or operator of a gas-fired or oil-fired unit using the low mass emissions excepted methodology under §75.19 of this chapter and not subject to an Acid Rain emissions limitation shall meet the applicable general operating requirements of §75.10 of this chapter and the applicable requirements of §75.19 of this chapter. The owner or operator of such a unit shall also meet the applicable certification and recertification procedures of paragraph (b) of this section, except that the excepted methodology shall be deemed provisionally certified for use under the NOX Budget Trading Program as of the date on which a complete certification application is received by the Administrator. The methodology shall be considered to be certified either upon receipt of a written notice of approval from the Administrator or, if such notice is not provided, at the end of the Administrator's 120 day review period. However, a provisionally certified or certified low mass emissions excepted methodology shall not be used to report data under the NOX Budget Trading Program prior to the applicable commencement date specified in §75.19(a)(1)(ii) of this chapter.

(d) Certification/recertification procedures for alternative monitoring systems. The NOX authorized account representative of each unit not subject to an Acid Rain emissions limitation for which the owner or operator intends to use an alternative monitoring system approved by the Administrator under subpart E of part 75 of this chapter shall comply with the applicable certification procedures of paragraph (b) of this section before using the system under the NOX Budget Trading Program. The NOX authorized account representative shall also comply with the applicable recertification procedures of paragraph (b) of this section. Section 75.20(f) of this chapter shall apply to such alternative monitoring system.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21647, Apr. 21, 2004]

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§97.72   Out of control periods.

(a) Whenever any emission monitoring system fails to meet the quality assurance or data validation requirements of part 75 of this chapter, data shall be substituted using the applicable procedures in subpart D, subpart H, appendix D, or appendix E of part 75 of this chapter.

(b) Audit decertification. Whenever both an audit of an emission monitoring system and a review of the initial certification or recertification application reveal that any system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under §97.71 or the applicable provisions of part 75 of this chapter, both at the time of the initial certification or recertification application submission and at the time of the audit, the Administrator will issue a notice of disapproval of the certification status of such system. For the purposes of this paragraph, an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the Administrator. By issuing the notice of disapproval, the Administrator revokes prospectively the certification status of the system. The data measured and recorded by the system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the system. The owner or operator shall follow the initial certification or recertification procedures in §97.71 for each disapproved system.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21648, Apr. 21, 2004]

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§97.73   Notifications.

(a) The NOX authorized account representative for a NOX Budget unit shall submit written notice to the Administrator, the appropriate EPA Regional Office, and the permitting authority in accordance with §75.61 of this chapter.

(b) For any unit that does not have an Acid Rain emissions limitation, the permitting authority may waive the requirement to notify the permitting authority in paragraph (a) of this section.

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§97.74   Recordkeeping and reporting.

(a) General provisions. (1) The NOX authorized account representative shall comply with all recordkeeping and reporting requirements in this section, with the recordkeeping and reporting requirements under §75.73 of this chapter, and with the requirements of §97.10(e)(1).

(2) If the NOX authorized account representative for a NOX Budget unit subject to an Acid Rain emission limitation who signed and certified any submission that is made under subpart F or G of part 75 of this chapter and that includes data and information required under this subpart or subpart H of part 75 of this chapter is not the same person as the designated representative or the alternative designated representative for the unit under part 72 of this chapter, then the submission must also be signed by the designated representative or the alternative designated representative.

(b) Monitoring plans. (1) The owner or operator of a unit subject to an Acid Rain emissions limitation shall comply with requirements of §75.62 of this chapter, except that the monitoring plan shall also include all of the information required by subpart H of part 75 of this chapter.

(2) The owner or operator of a unit that is not subject to an Acid Rain emissions limitation shall comply with requirements of §75.62 of this chapter, except that the monitoring plan is only required to include the information required by subpart H of part 75 of this chapter.

(c) Certification applications. The NOX authorized account representative shall submit an application to the Administrator, the appropriate EPA Regional Office, and the permitting authority within 45 days after completing all initial certification or recertification tests required under §97.71 including the information required under subpart H of part 75 of this chapter.

(d) Quarterly reports. The NOX authorized account representative shall submit quarterly reports, as follows:

(1) If a unit is subject to an Acid Rain emission limitation or if the owner or operator of the NOX budget unit chooses to meet the annual reporting requirements of this subpart H, the NOX authorized account representative shall submit a quarterly report for each calendar quarter beginning with:

(i) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under §97.43, the calendar quarter that covers May 1, 2000 through June 30, 2000. The NOX mass emission data shall be recorded and reported from the first hour on May 1, 2000; or

(ii) For a unit that commences operation before January 1, 2003 and that is not subject to paragraph (d)(1)(i) of this section, the calendar quarter covering May 1, 2003 through June 30, 2003. The NOX mass emission data shall be recorded and reported from the first hour on May 1, 2003; or

(iii) For a unit that commences operation on or after January 1, 2003:

(A) The calendar quarter in which the unit commences operation, if unit operation commences during a control period. The NOX mass emission data shall be recorded and reported from the date and hour when the unit commences operation; or

(B) The calendar quarter which includes May 1 through June 30 of the first control period following the date on which the unit commences operation, if the unit does not commence operation during a control period. The NOX mass emission data shall be recorded and reported from the first hour on May 1 of that control period; or

(iv) A calendar quarter before the quarter specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii)(B) of this section, if the owner or operator elects to begin reporting early under §97.70(c)(3).

(2) If a NOX budget unit is not subject to an Acid Rain emission limitation, then the NOX authorized account representative shall either:

(i) Meet all of the requirements of part 75 related to monitoring and reporting NOX mass emissions during the entire year and meet the deadlines specified in paragraph (d)(1) of this section; or

(ii) Submit quarterly reports, documenting NOX mass emissions from the unit, only for the period from May 1 through September 30 of each year and including the data described in §75.74(c)(6) of this chapter. The NOX authorized account representative shall submit such quarterly reports, beginning with:

(A) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under §97.43, the calendar quarter that covers May 1, 2000 through June 30, 2000. The NOX mass emission data shall be recorded and reported from the first hour on May 1, 2000; or

(B) For a unit that commences operation before January 1, 2003 and that is not subject to paragraph (d)(2)(ii)(A) of this section, the calendar quarter covering May 1, 2003 through June 30, 2003. The NOX mass emission data shall be recorded and reported from the first hour on May 1, 2003; or

(C) For a unit that commences operation on or after January 1, 2003 and during a control period, the calendar quarter in which the unit commences operation. The NOX mass emission data shall be recorded and reported from the date and hour when the unit commences operation; or

(D) For a unit that commences operation on or after January 1, 2003 and not during a control period, the calendar quarter which includes May 1 through June 30 of the first control period following the date on which the unit commences operation. The NOX mass emission data shall be recorded and reported from the first hour on May 1 of that control period.

(3) The NOX authorized account representative shall submit each quarterly report to the Administrator within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in subpart H of part 75 of this chapter and §75.64 of this chapter.

(i) For units subject to an Acid Rain emissions limitation, quarterly reports shall include all of the data and information required in subpart H of part 75 of this chapter for each NOX Budget unit (or group of units using a common stack) and the data and information required in subpart G of part 75 of this chapter.

(ii) For units not subject to an Acid Rain emissions limitation, quarterly reports are only required to include all of the data and information required in subpart H of part 75 of this chapter for each NOX Budget unit (or group of units using a common stack).

(4) Compliance certification. The NOX authorized account representative shall submit to the Administrator a compliance certification in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit's emissions are correctly and fully monitored. The certification shall state that:

(i) The monitoring data submitted were recorded in accordance with the applicable requirements of this subpart and part 75 of this chapter, including the quality assurance procedures and specifications;

(ii) For a unit with add-on NOX emission controls and for all hours where data are substituted in accordance with §75.34(a)(1) of this chapter, the add-on emission controls were operating within the range of parameters listed in the quality assurance/quality control program under appendix B of part 75 of this chapter and the substitute values do not systematically underestimate NOX emissions; and

(iii) For a unit that is reporting on a control period basis under paragraph (d)(2)(ii) of this section, the NOX emission rate and NOX concentration values substituted for missing data under subpart D of part 75 of this chapter are calculated using only values from a control period and do not systematically underestimate NOX emissions.

[65 FR 2727, Jan. 18, 2000, as amended at 67 FR 21530, Apr. 30, 2002; 69 FR 21648, Apr. 21, 2004]

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§97.75   Petitions.

(a) The NOX authorized account representative of a NOX Budget unit may submit a petition under §75.66 of this chapter to the Administrator requesting approval to apply an alternative to any requirement of this subpart.

(b) Application of an alternative to any requirement of this subpart is in accordance with this subpart only to the extent that the petition is approved by the Administrator under §75.66 of this chapter.

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§97.76   Additional requirements to provide heat input data.

The owner or operator of a NOX Budget unit that monitors and reports NOX mass emissions using a NOX concentration system and a flow system shall also monitor and report heat input rate at the unit level using the procedures set forth in part 75 of this chapter.

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Subpart I—Individual Unit Opt-ins

§97.80   Applicability.

A unit that is in a State (as defined in §97.2), is not a NOX Budget unit under §97.4(a), is not a unit exempt under §97.4(b), vents all of its emissions to a stack, and is operating, may qualify to be a NOX Budget opt-in unit under this subpart. A unit that is a NOX Budget unit under §97.4(a), is covered by an exemption under §97.4(b) or §97.5 that is in effect, or is not operating is not eligible to be a NOX Budget opt-in unit.

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§97.81   General.

Except otherwise as provided in this part, a NOX Budget opt-in unit shall be treated as a NOX Budget unit for purposes of applying subparts A through H of this part.

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§97.82   NOX authorized account representative.

A unit for which an application for a NOX Budget opt-in permit is submitted, or a NOX Budget opt-in unit, located at the same source as one or more NOX Budget units, shall have the same NOX authorized account representative as such NOX Budget units.

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§97.83   Applying for NOX Budget opt-in permit.

(a) Applying for initial NOX Budget opt-in permit. In order to apply for an initial NOX Budget opt-in permit, the NOX authorized account representative of a unit qualified under §97.80 may submit to the Administrator and the permitting authority at any time, except as provided under §97.86(g):

(1) A complete NOX Budget permit application under §97.22;

(2) A monitoring plan submitted in accordance with subpart H of this part; and

(3) A complete account certificate of representation under §97.13, if no NOX authorized account representative has been previously designated for the unit.

(b) Duty to reapply. Unless the NOX Budget opt-in permit is terminated or revised under §97.86(e) or §97.87(b)(1)(i), the NOX authorized account representative of a NOX Budget opt-in unit shall submit to the Administrator and permitting authority a complete NOX Budget permit application under §97.22 to renew the NOX Budget opt-in permit in accordance with §97.21(c) and, if applicable, an updated monitoring plan in accordance with subpart H of this part.

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§97.84   Opt-in process.

The permitting authority will issue or deny an initial NOX Budget opt-in permit for a unit for which an application for a NOX Budget opt-in permit under §97.83 is submitted, in accordance with §97.20 and the following:

(a) Interim review of monitoring plan. The Administrator will determine, on an interim basis, the sufficiency of the monitoring plan accompanying the initial application for a NOX Budget opt-in permit under §97.83. A monitoring plan is sufficient, for purposes of interim review, if the plan appears to contain information demonstrating that the NOX emissions rate and heat input rate of the unit are monitored and reported in accordance with subpart H of this part. A determination of sufficiency shall not be construed as acceptance or approval of the unit's monitoring plan.

(b) If the Administrator determines that the unit's monitoring plan is sufficient under paragraph (a) of this section and after completion of monitoring system certification under subpart H of this part, the NOX emissions rate and the heat input of the unit shall be monitored and reported in accordance with subpart H of this part for one full control period during which percent monitor data availability is not less than 90 percent and during which the unit is in full compliance with any applicable State or Federal emissions or emissions-related requirements. Solely for purposes of applying the requirements in the prior sentence, the unit shall be treated as a “NOX Budget unit” prior to issuance of a NOX Budget opt-in permit covering the unit.

(c) Based on the information monitored and reported under paragraph (b) of this section, the Administrator will calculate the unit's baseline heat input, which will equal the unit's total heat input (in mmBtu) for the control period, and the unit's baseline NOX emissions rate, which will equal the unit's total NOX mass emissions (in lb) for the control period divided by the unit's baseline heat input.

(d) Issuance of draft NOX Budget opt-in permit for public comment. The permitting authority will issue a draft NOX Budget opt-in permit for public comment in accordance with §97.20.

(e) Not withstanding paragraphs (a) through (d) of this section, if at any time before issuance of a draft NOX Budget opt-in permit for public comment for the unit, the Administrator or the permitting authority determines that the unit does not qualify as a NOX Budget opt-in unit under §97.80, the permitting authority will issue a draft denial of a NOX Budget opt-in permit for public comment for the unit in accordance with §97.20.

(f) Withdrawal of application for NOX Budget opt-in permit. A NOX authorized account representative of a unit may withdraw its application for an initial NOX Budget opt-in permit under §97.83 at any time prior to the issuance of the initial NOX Budget opt-in permit. Once the application for a NOX Budget opt-in permit is withdrawn, a NOX authorized account representative wanting to reapply must submit a new application for an initial NOX Budget permit under §97.83.

(g) The unit shall be a NOX Budget opt-in unit and a NOX Budget unit starting May 1 of the first control period starting after the issuance of the initial NOX Budget opt-in permit by the permitting authority.

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§97.85   NOX Budget opt-in permit contents.

(a) Each NOX Budget opt-in permit will contain all elements required for a complete NOX Budget opt-in permit application under §97.22.

(b) Each NOX Budget opt-in permit is deemed to incorporate automatically the definitions of terms under §97.2 and, upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of NOX allowances to or from the compliance accounts of each NOX Budget opt-in unit covered by the NOX Budget opt-in permit or the overdraft account of the NOX Budget source where the NOX Budget opt-in unit is located.

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§97.86   Withdrawal from NOX Budget Trading Program.

(a) Requesting withdrawal. To withdraw from the NOX Budget Trading Program, the NOX authorized account representative of a NOX Budget opt-in unit shall submit to the Administrator and the permitting authority a request to withdraw effective as of a specified date prior to May 1 or after September 30. The submission shall be made no later than 90 days prior to the requested effective date of withdrawal.

(b) Conditions for withdrawal. Before a NOX Budget opt-in unit covered by a request under paragraph (a) of this section may withdraw from the NOX Budget Trading Program and the NOX Budget opt-in permit may be terminated under paragraph (e) of this section, the following conditions must be met:

(1) For the control period immediately before the withdrawal is to be effective, the NOX authorized account representative must submit or must have submitted to the Administrator and the permitting authority an annual compliance certification report in accordance with §97.30.

(2) If the NOX Budget opt-in unit has excess emissions for the control period immediately before the withdrawal is to be effective, the Administrator will deduct or has deducted from the NOX Budget opt-in unit's compliance account, or the overdraft account of the NOX Budget source where the NOX Budget opt-in unit is located, the full amount required under §97.54(d) for the control period.

(3) After the requirements for withdrawal under paragraphs (b)(1) and (2) of this section are met, the Administrator will deduct from the NOX Budget opt-in unit's compliance account, or the overdraft account of the NOX Budget source where the NOX Budget opt-in unit is located, NOX allowances equal in number to and allocated for the same or a prior control period as any NOX allowances allocated to that source under §97.88 for any control period for which the withdrawal is to be effective. The Administrator will close the NOX Budget opt-in unit's compliance account and transfer any remaining allowances to a general account specified by the owners and operators of the NOX Budget opt-in unit.

(c) A NOX Budget opt-in unit that withdraws from the NOX Budget Trading Program shall comply with all requirements under the NOX Budget Trading Program concerning all years for which such NOX Budget opt-in unit was a NOX Budget opt-in unit, even if such requirements arise or must be complied with after the withdrawal takes effect.

(d) Notification. (1) After the requirements for withdrawal under paragraphs (a) and (b) of this section are met (including deduction of the full amount of NOX allowances required), the Administrator will issue a notification to the permitting authority and the NOX authorized account representative of the NOX Budget opt-in unit of the acceptance of the withdrawal of the NOX Budget opt-in unit as of a specified effective date that is after such requirements have been met and that is prior to May 1 or after September 30.

(2) If the requirements for withdrawal under paragraphs (a) and (b) of this section are not met, the Administrator will issue a notification to the permitting authority and the NOX authorized account representative of the NOX Budget opt-in unit that the request to withdraw is denied. If the NOX Budget opt-in unit's request to withdraw is denied, the NOX Budget opt-in unit shall remain subject to the requirements for a NOX Budget opt-in unit.

(e) Permit revision. After the Administrator issues a notification under paragraph (d)(1) of this section that the requirements for withdrawal have been met, the permitting authority will revise the NOX Budget permit covering the NOX Budget opt-in unit to terminate the NOX Budget opt-in permit as of the effective date specified under paragraph (d)(1) of this section. A NOX Budget opt-in unit shall continue to be a NOX Budget opt-in unit until the effective date of the termination.

(f) Reapplication upon failure to meet conditions of withdrawal. If the Administrator denies the request to withdraw the NOX Budget opt-in unit, the NOX authorized account representative may submit another request to withdraw in accordance with paragraphs (a) and (b) of this section.

(g) Ability to return to the NOX Budget Trading Program. Once a NOX Budget opt-in unit withdraws from the NOX Budget Trading Program and its NOX Budget opt-in permit is terminated under paragraph (e) of this section, the NOX authorized account representative may not submit another application for a NOX Budget opt-in permit under §97.83 for the unit prior to the date that is 4 years after the date on which the terminated NOX Budget opt-in permit became effective.

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§97.87   Change in regulatory status.

(a) Notification. When a NOX Budget opt-in unit becomes a NOX Budget unit under §97.4(a), the NOX authorized account representative shall notify in writing the permitting authority and the Administrator of such change in the NOX Budget opt-in unit's regulatory status, within 30 days of such change.

(b) Permitting authority's and Administrator's action. (1)(i) When the NOX Budget opt-in unit becomes a NOX Budget unit under §97.4(a), the permitting authority will revise the NOX Budget opt-in unit's NOX Budget opt-in permit to meet the requirements of a NOX Budget permit under §97.23 as of an effective date that is the date on which such NOX Budget opt-in unit becomes a NOX Budget unit under §97.4(a).

(ii)(A) The Administrator will deduct from the compliance account for the NOX Budget unit under paragraph (b)(1)(i) of this section, or the overdraft account of the NOX Budget source where the unit is located, NOX allowances equal in number to and allocated for the same or a prior control period as:

(1) Any NOX allowances allocated to the NOX Budget unit (as a NOX Budget opt-in unit) under §97.88 for any control period after the last control period during which the unit's NOX Budget opt-in permit was effective; and

(2) If the effective date of the NOX Budget permit revision under paragraph (b)(1)(i) of this section is during a control period, the NOX allowances allocated to the NOX Budget unit (as a NOX Budget opt-in unit) under §97.88 for the control period multiplied by the number of days in the control period starting with the effective date of the permit revision under paragraph (b)(1)(i) of this section, divided by the total number of days in the control period, and rounded to the nearest whole number of NOX allowances as appropriate.

(B) The NOX authorized account representative shall ensure that the compliance account of the NOX Budget unit under paragraph (b)(1)(i) of this section, or the overdraft account of the NOX Budget source where the unit is located, contains the NOX allowances necessary for completion of the deduction under paragraph (b)(1)(ii)(A) of this section. If the compliance account or overdraft account does not contain the necessary NOX allowances, the Administrator will deduct the required number of NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in either account.

(iii)(A) For every control period during which the NOX Budget permit revised under paragraph (b)(1)(i) of this section is in effect, the NOX Budget unit under paragraph (b)(1)(i) of this section will be treated, solely for purposes of NOX allowance allocations under §97.42, as a unit that commenced operation on the effective date of the NOX Budget permit revision under paragraph (b)(1)(i) of this section and will be allocated NOX allowances under §97.42. The unit's deadline under §97.84(b) for meeting monitoring requirements in accordance with subpart H of this part shall not be changed by the change in the unit's regulatory status or by the revision of the NOX Budget permit under paragraph (b)(1)(i) of this section.

(B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the effective date of the NOX Budget permit revision under paragraph (b)(1)(i) of this section is during a control period, the following number of NOX allowances will be allocated to the NOX Budget unit under paragraph (b)(1)(i) of this section under §97.42 for the control period: the number of NOX allowances otherwise allocated to the NOX Budget unit under §97.42 for the control period multiplied by the number of days in the control period starting with the effective date of the permit revision under paragraph (b)(1)(i) of this section, divided by the total number of days in the control period, and rounded to the nearest whole number of NOX allowances as appropriate.

(2)(i) When the NOX authorized account representative of a NOX Budget opt-in unit does not renew its NOX Budget opt-in permit under §97.83(b), the Administrator will deduct from the NOX Budget opt-in unit's compliance account, or the overdraft account of the NOX Budget source where the NOX Budget opt-in unit is located, NOX allowances equal in number to and allocated for the same or a prior control period as any NOX allowances allocated to the NOX Budget opt-in unit under §97.88 for any control period after the last control period for which the NOX Budget opt-in permit is effective. The NOX authorized account representative shall ensure that the NOX Budget opt-in unit's compliance account or the overdraft account of the NOX Budget source where the NOX Budget opt-in unit is located contains the NOX allowances necessary for completion of such deduction. If the compliance account or overdraft account does not contain the necessary NOX allowances, the Administrator will deduct the required number of NOX allowances, regardless of the control period for which they were allocated, whenever NOX allowances are recorded in either account.

(ii) After the deduction under paragraph (b)(2)(i) of this section is completed, the Administrator will close the NOX Budget opt-in unit's compliance account. If any NOX allowances remain in the compliance account after completion of such deduction and any deduction under §97.54, the Administrator will close the NOX Budget opt-in unit's compliance account and transfer any remaining allowances to a general account specified by the owners and operators of the NOX Budget opt-in unit.

[65 FR 2727, Jan. 18, 2000, as amended at 69 FR 21648, Apr. 21, 2004]

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§97.88   NOX allowance allocations to opt-in units.

(a) NOX allotment allocation. (1) By April 1 immediately before the first control period for which the NOX Budget opt-in permit is effective, the Administrator will determine by order the NOX allowance allocations for the NOX Budget opt-in unit for the control period in accordance with paragraph (b) of this section.

(2) By no later than April 1, after the first control period for which the NOX Budget opt-in permit is in effect, and April 1 of each year thereafter, the Administrator will determine by order the NOX allowance allocations for the NOX Budget opt-in unit for the next control period, in accordance with paragraph (b) of this section.

(3) The Administrator will make available to the public each determination of NOX allowance allocations under paragraph (a)(1) or (2) of this section and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with paragraph (b) of this section. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with paragraph (b) of this section.

(b) For each control period for which the NOX Budget opt-in unit has an approved NOX Budget opt-in permit, the NOX Budget opt-in unit will be allocated NOX allowances in accordance with the following procedures:

(1) The heat input (in mmBtu) used for calculating NOX allowance allocations will be the lesser of:

(i) The unit's baseline heat input determined pursuant to §97.84(c); or

(ii) The unit's heat input, as determined in accordance with subpart H of this part, for the control period in the year prior to the year of the control period for which the NOX allocations are being calculated.

(2) The Administrator will allocate NOX allowances to the unit in an amount equaling the heat input determined under paragraph (b)(1) of this section multiplied by the lesser of the unit's baseline NOX emissions rate determined under §97.84(c) or the most stringent State or federal NOX emissions limitation applicable to the unit during the control period, divided by 2,000 lb/ton, and rounded to the nearest whole number of NOX allowances as appropriate.

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Subpart J—Appeal Procedures

§97.90   Appeal procedures.

The appeal procedures for the NOX Budget Trading Program are set forth in part 78 of this chapter.

[69 FR 21648, Apr. 21, 2004]

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Subpart AA—CAIR NOX Annual Trading Program General Provisions

§97.101   Purpose.

This subpart and subparts BB through II set forth the general provisions and the designated representative, permitting, allowance, monitoring, and opt-in provisions for the Federal Clean Air Interstate Rule (CAIR) NOX Annual Trading Program, under section 110 of the Clean Air Act and §52.35 of this chapter, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

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§97.102   Definitions.

The terms used in this subpart and subparts BB through II shall have the meanings set forth in this section as follows:

Account number means the identification number given by the Administrator to each CAIR NOX Allowance Tracking System account.

Acid Rain emissions limitation means a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program.

Acid Rain Program means a multi-state sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the Administrator under title IV of the CAA and parts 72 through 78 of this chapter.

Actual weighted average NOX emission rate means, for a NOX averaging plan under §76.11 of this chapter and for a year:

(1) The sum of the products of the actual annual average NOX emission rate and actual annual heat input (as determined in accordance with part 75 of this chapter) for all units in the NOX averaging plan for the year; divided by

(2) The sum of the actual annual heat input (as determined in accordance with part 75 of this chapter) for all units in the NOX averaging plan for the year.

Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.

Allocate or allocation means, with regard to CAIR NOX allowances, the determination by a permitting authority or the Administrator of the amount of such CAIR NOX allowances to be initially credited to a CAIR NOX unit, a new unit set-aside, or other entity.

Allowance transfer deadline means, for a control period, midnight of March 1 (if it is a business day), or midnight of the first business day thereafter (if March 1 is not a business day), immediately following the control period and is the deadline by which a CAIR NOX allowance transfer must be submitted for recordation in a CAIR NOX source's compliance account in order to be used to meet the source's CAIR NOX emissions limitation for such control period in accordance with §97.154.

Alternate CAIR designated representative means, for a CAIR NOX source and each CAIR NOX unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with subparts BB and II of this part, to act on behalf of the CAIR designated representative in matters pertaining to the CAIR NOX Annual Trading Program. If the CAIR NOX source is also a CAIR SO2 source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR SO2 Trading Program. If the CAIR NOX source is also a CAIR NOX Ozone Season source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR NOX Ozone Season Trading Program. If the CAIR NOX source is also subject to the Acid Rain Program, then this natural person shall be the same person as the alternate designated representative under the Acid Rain Program. If the CAIR NOX source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the alternate Hg designated representative under the Hg Budget Trading Program.

Automated data acquisition and handling system or DAHS means that component of the continuous emission monitoring system, or other emissions monitoring system approved for use under subpart HH of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by subpart HH of this part.

Biomass means—

(1) Any organic material grown for the purpose of being converted to energy;

(2) Any organic byproduct of agriculture that can be converted into energy; or

(3) Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i) A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ii) A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings.

Boiler means an enclosed fossil- or other-fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.

CAIR authorized account representative means, with regard to a general account, a responsible natural person who is authorized, in accordance with subparts BB, FF, and II of this part, to transfer and otherwise dispose of CAIR NOX allowances held in the general account and, with regard to a compliance account, the CAIR designated representative of the source.

CAIR designated representative means, for a CAIR NOX source and each CAIR NOX unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with subparts BB and II of this part, to represent and legally bind each owner and operator in matters pertaining to the CAIR NOX Annual Trading Program. If the CAIR NOX source is also a CAIR SO2 source, then this natural person shall be the same person as the CAIR designated representative under the CAIR SO2 Trading Program. If the CAIR NOX source is also a CAIR NOX Ozone Season source, then this natural person shall be the same person as the CAIR designated representative under the CAIR NOX Ozone Season Trading Program. If the CAIR NOX source is also subject to the Acid Rain Program, then this natural person shall be the same person as the designated representative under the Acid Rain Program. If the CAIR NOX source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the Hg designated representative under the Hg Budget Trading Program.

CAIR NOX allowance means a limited authorization issued by a permitting authority or the Administrator under subpart EE of this part or §97.188, or under provisions of a State implementation plan that are approved under §51.123(o)(1) or (2) or (p) of this chapter, to emit one ton of nitrogen oxides during a control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the CAIR NOX Program. An authorization to emit nitrogen oxides that is not issued under subpart EE of this part, §97.188, or provisions of a State implementation plan that are approved under §51.123(o)(1) or (2) or (p) of this chapter shall not be a CAIR NOX allowance.

CAIR NOX allowance deduction or deduct CAIR NOX allowances means the permanent withdrawal of CAIR NOX allowances by the Administrator from a compliance account, e.g., in order to account for a specified number of tons of total nitrogen oxides emissions from all CAIR NOX units at a CAIR NOX source for a control period, determined in accordance with subpart HH of this part, or to account for excess emissions.

CAIR NOX Allowance Tracking System means the system by which the Administrator records allocations, deductions, and transfers of CAIR NOX allowances under the CAIR NOX Annual Trading Program. Such allowances will be allocated, held, deducted, or transferred only as whole allowances.

CAIR NOX Allowance Tracking System account means an account in the CAIR NOX Allowance Tracking System established by the Administrator for purposes of recording the allocation, holding, transferring, or deducting of CAIR NOX allowances.

CAIR NOX allowances held or hold CAIR NOX allowances means the CAIR NOX allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with subparts FF, GG, and II of this part, in a CAIR NOX Allowance Tracking System account.

CAIR NOX Annual Trading Program means a multi-state nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with subparts AA through II of this part and §§51.123(p) and 52.35 of this chapter or approved and administered by the Administrator in accordance with subparts AA through II of part 96 of this chapter and §51.123(o)(1) or (2) of this chapter, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

CAIR NOX emissions limitation means, for a CAIR NOX source, the tonnage equivalent, in NOX emissions in a control period, of the CAIR NOX allowances available for deduction for the source under §97.154 (a) and (b) for the control period.

CAIR NOX Ozone Season source means a source that is subject to the CAIR NOX Ozone Season Trading Program.

CAIR NOX Ozone Season Trading Program means a multi-state nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with subparts AAAA through IIII of this part and §§51.123(ee) and 52.35 of this chapter or approved and administered by the Administrator in accordance with subparts AAAA through IIII of part 96 and §51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), or (dd) of this chapter, as a means of mitigating interstate transport of ozone and nitrogen oxides.

CAIR NOX source means a source that includes one or more CAIR NOX units.

CAIR NOX unit means a unit that is subject to the CAIR NOX Annual Trading Program under §97.104 and, except for purposes of §97.105 and subpart EE of this part, a CAIR NOX opt-in unit under subpart II of this part.

CAIR permit means the legally binding and federally enforceable written document, or portion of such document, issued by the permitting authority under subpart CC of this part, including any permit revisions, specifying the CAIR NOX Annual Trading Program requirements applicable to a CAIR NOX source, to each CAIR NOX unit at the source, and to the owners and operators and the CAIR designated representative of the source and each such unit.

CAIR SO2 source means a source that is subject to the CAIR SO2 Trading Program.

CAIR SO2 Trading Program means a multi-state sulfur dioxide air pollution control and emission reduction program established by the Administrator in accordance with subparts AAA through III of this part and §§51.124(r) and 52.36 of this chapter or approved and administered by the Administrator in accordance with subparts AAA through III of part 96 of this chapter and §51.124(o)(1) or (2) of this chapter, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

Certifying official means:

(1) For a corporation, a president, secretary, treasurer, or vice-president or the corporation in charge of a principal business function or any other person who performs similar policy or decision-making functions for the corporation;

(2) For a partnership or sole proprietorship, a general partner or the proprietor respectively; or

(3) For a local government entity or State, Federal, or other public agency, a principal executive officer or ranking elected official.

Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.

Coal means any solid fuel classified as anthracite, bituminous, subbituminous, or lignite.

Coal-derived fuel means any fuel (whether in a solid, liquid, or gaseous state) produced by the mechanical, thermal, or chemical processing of coal.

Coal-fired means:

(1) Except for purposes of subpart EE of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during any year; or

(2) For purposes of subpart EE of this part, combusting any amount of coal or coal-derived fuel, alone or in combination with any amount of any other fuel, during a specified year.

Cogeneration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

(1) Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2) Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i) For a topping-cycle cogeneration unit, (A) Useful thermal energy not less than 5 percent of total energy output; and

(B) Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

(ii) For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input;

(3) Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler.

Combustion turbine means:

(1) An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

(2) If the enclosed device under paragraph (1) of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

Commence commercial operation means, with regard to a unit:

(1) To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation, except as provided in §97.105 and §97.184(h).

(i) For a unit that is a CAIR NOX unit under §97.104 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

(ii) For a unit that is a CAIR NOX unit under §97.104 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in paragraph (1) or (2) of this definition as appropriate.

(2) Notwithstanding paragraph (1) of this definition and except as provided in §97.105, for a unit that is not a CAIR NOX unit under §97.104 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition, the unit's date for commencement of commercial operation shall be the date on which the unit becomes a CAIR NOX unit under §97.104.

(i) For a unit with a date for commencement of commercial operation as defined in paragraph (2) of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

(ii) For a unit with a date for commencement of commercial operation as defined in paragraph (2) of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in paragraph (1) or (2) of this definition as appropriate.

Commence operation means:

(1) To have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber, except as provided in §97.184(h).

(2) For a unit that undergoes a physical change (other than replacement of the unit by a unit at the same source) after the date the unit commences operation as defined in paragraph (1) of this definition, such date shall remain the date of commencement of operation of the unit, which shall continue to be treated as the same unit.

(3) For a unit that is replaced by a unit at the same source (e.g., repowered) after the date the unit commences operation as defined in paragraph (1) of this definition, such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in paragraph (1), (2), or (3) of this definition as appropriate, except as provided in §97.184(h).

Common stack means a single flue through which emissions from 2 or more units are exhausted.

Compliance account means a CAIR NOX Allowance Tracking System account, established by the Administrator for a CAIR NOX source under subpart FF or II of this part, in which any CAIR NOX allowance allocations for the CAIR NOX units at the source are initially recorded and in which are held any CAIR NOX allowances available for use for a control period in order to meet the source's CAIR NOX emissions limitation in accordance with §97.154.

Continuous emission monitoring system or CEMS means the equipment required under subpart HH of this part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides emissions, stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with part 75 of this chapter. The following systems are the principal types of continuous emission monitoring systems required under subpart HH of this part:

(1) A flow monitoring system, consisting of a stack flow rate monitor and an automated data acquisition and handling system and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour (scfh);

(2) A nitrogen oxides concentration monitoring system, consisting of a NOX pollutant concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of NOX emissions, in parts per million (ppm);

(3) A nitrogen oxides emission rate (or NOX-diluent) monitoring system, consisting of a NOX pollutant concentration monitor, a diluent gas (CO2 or O2) monitor, and an automated data acquisition and handling system and providing a permanent, continuous record of NOX concentration, in parts per million (ppm), diluent gas concentration, in percent CO2 or O2, and NOX emission rate, in pounds per million British thermal units (lb/mmBtu);

(4) A moisture monitoring system, as defined in §75.11(b)(2) of this chapter and providing a permanent, continuous record of the stack gas moisture content, in percent H2O;

(5) A carbon dioxide monitoring system, consisting of a CO2 pollutant concentration monitor (or an oxygen monitor plus suitable mathematical equations from which the CO2 concentration is derived) and an automated data acquisition and handling system and providing a permanent, continuous record of CO2 emissions, in percent CO2; and

(6) An oxygen monitoring system, consisting of an O2 concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of O2, in percent O2.

Control period means the period beginning January 1 of a calendar year, except as provided in §97.106(c)(2), and ending on December 31 of the same year, inclusive.

Emissions means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the CAIR designated representative and as determined by the Administrator in accordance with subpart HH of this part.

Excess emissions means any ton of nitrogen oxides emitted by the CAIR NOX units at a CAIR NOX source during a control period that exceeds the CAIR NOX emissions limitation for the source.

Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil-fuel-fired means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

Fuel oil means any petroleum-based fuel (including diesel fuel or petroleum derivatives such as oil tar) and any recycled or blended petroleum products or petroleum by-products used as a fuel whether in a liquid, solid, or gaseous state.

General account means a CAIR NOX Allowance Tracking System account, established under subpart FF of this part, that is not a compliance account.

Generator means a device that produces electricity.

Gross electrical output means, with regard to a cogeneration unit, electricity made available for use, including any such electricity used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

Heat input means, with regard to a specified period of time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the Administrator by the CAIR designated representative and determined by the Administrator in accordance with subpart HH of this part and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

Heat input rate means the amount of heat input (in mmBtu) divided by unit operating time (in hr) or, with regard to a specific fuel, the amount of heat input attributed to the fuel (in mmBtu) divided by the unit operating time (in hr) during which the unit combusts the fuel.

Hg Budget Trading Program means a multi-state Hg air pollution control and emission reduction program approved and administered by the Administrator in accordance subpart HHHH of part 60 of this chapter and §60.24(h)(6), or established by the Administrator under section 111 of the Clean Air Act, as a means of reducing national Hg emissions.

Life-of-the-unit, firm power contractual arrangement means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy generated by any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

(1) For the life of the unit;

(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

(3) For a period no less than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

Maximum design heat input means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

Monitoring system means any monitoring system that meets the requirements of subpart HH of this part, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under part 75 of this chapter.

Most stringent State or Federal NOX emissions limitation means, with regard to a unit, the lowest NOX emissions limitation (in terms of lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.

Nameplate capacity means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

Oil-fired means, for purposes of subpart EE of this part, combusting fuel oil for more than 15.0 percent of the annual heat input in a specified year and not qualifying as coal-fired.

Operator means any person who operates, controls, or supervises a CAIR NOX unit or a CAIR NOX source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

Owner means any of the following persons:

(1) With regard to a CAIR NOX source or a CAIR NOX unit at a source, respectively:

(i) Any holder of any portion of the legal or equitable title in a CAIR NOX unit at the source or the CAIR NOX unit;

(ii) Any holder of a leasehold interest in a CAIR NOX unit at the source or the CAIR NOX unit; or

(iii) Any purchaser of power from a CAIR NOX unit at the source or the CAIR NOX unit under a life-of-the-unit, firm power contractual arrangement; provided that, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based (either directly or indirectly) on the revenues or income from such CAIR NOX unit; or

(2) With regard to any general account, any person who has an ownership interest with respect to the CAIR NOX allowances held in the general account and who is subject to the binding agreement for the CAIR authorized account representative to represent the person's ownership interest with respect to CAIR NOX allowances.

Permitting authority means the State air pollution control agency, local agency, other State agency, or other agency authorized by the Administrator to issue or revise permits to meet the requirements of the CAIR NOX Annual Trading Program or, if no such agency has been so authorized, the Administrator.

Potential electrical output capacity means 33 percent of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

Receive or receipt of means, when referring to the permitting authority or the Administrator, to come into possession of a document, information, or correspondence (whether sent in hard copy or by authorized electronic transmission), as indicated in an official log, or by a notation made on the document, information, or correspondence, by the permitting authority or the Administrator in the regular course of business.

Recordation, record, or recorded means, with regard to CAIR NOX allowances, the movement of CAIR NOX allowances by the Administrator into or between CAIR NOX Allowance Tracking System accounts, for purposes of allocation, transfer, or deduction.

Reference method means any direct test method of sampling and analyzing for an air pollutant as specified in §75.22 of this chapter.

Replacement, replace, or replaced means, with regard to a unit, the demolishing of a unit, or the permanent shutdown and permanent disabling of a unit, and the construction of another unit (the replacement unit) to be used instead of the demolished or shutdown unit (the replaced unit).

Repowered means, with regard to a unit, replacement of a coal-fired boiler with one of the following coal-fired technologies at the same source as the coal-fired boiler:

(1) Atmospheric or pressurized fluidized bed combustion;

(2) Integrated gasification combined cycle;

(3) Magnetohydrodynamics;

(4) Direct and indirect coal-fired turbines;

(5) Integrated gasification fuel cells; or

(6) As determined by the Administrator in consultation with the Secretary of Energy, a derivative of one or more of the technologies under paragraphs (1) through (5) of this definition and any other coal-fired technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of January 1, 2005.

Sequential use of energy means:

(1) For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

(2) For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

Serial number means, for a CAIR NOX allowance, the unique identification number assigned to each CAIR NOX allowance by the Administrator.

Solid waste incineration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine that is a “solid waste incineration unit” as defined in section 129(g)(1) of the Clean Air Act.

Source means all buildings, structures, or installations located in one or more contiguous or adjacent properties under common control of the same person or persons. For purposes of section 502(c) of the Clean Air Act, a “source,” including a “source” with multiple units, shall be considered a single “facility.”

State means one of the States or the District of Columbia that is subject to the CAIR NOX Annual Trading Program pursuant to §52.35 of this chapter.

Submit or serve means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

(1) In person;

(2) By United States Postal Service; or

(3) By other means of dispatch or transmission and delivery. Compliance with any “submission” or “service” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

Title V operating permit means a permit issued under title V of the Clean Air Act and part 70 or part 71 of this chapter.

Title V operating permit regulations means the regulations that the Administrator has approved or issued as meeting the requirements of title V of the Clean Air Act and part 70 or 71 of this chapter.

Ton means 2,000 pounds. For the purpose of determining compliance with the CAIR NOX emissions limitation, total tons of nitrogen oxides emissions for a control period shall be calculated as the sum of all recorded hourly emissions (or the mass equivalent of the recorded hourly emission rates) in accordance with subpart HH of this part, but with any remaining fraction of a ton equal to or greater than 0.50 tons deemed to equal one ton and any remaining fraction of a ton less than 0.50 tons deemed to equal zero tons.

Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

Total energy input means, with regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself. Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows:

LHV = HHV − 10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,

HHV = higher heating value of fuel in Btu/lb,

W = Weight % of moisture in fuel, and

H = Weight % of hydrogen in fuel.

Total energy output means, with regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit.

Unit means a stationary, fossil-fuel-fired boiler or combustion turbine or other stationary, fossil-fuel-fired combustion device.

Unit operating day means a calendar day in which a unit combusts any fuel.

Unit operating hour or hour of unit operation means an hour in which a unit combusts any fuel.

Useful power means, with regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

Useful thermal energy means, with regard to a cogeneration unit, thermal energy that is:

(1) Made available to an industrial or commercial process (not a power production process), excluding any heat contained in condensate return or makeup water;

(2) Used in a heating application (e.g., space heating or domestic hot water heating); or

(3) Used in a space cooling application (i.e., thermal energy used by an absorption chiller).

Utility power distribution system means the portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006; 72 FR 59206, Oct. 19, 2007]

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§97.103   Measurements, abbreviations, and acronyms.

Measurements, abbreviations, and acronyms used in this subpart and subparts BB through II are defined as follows:

Btu—British thermal unit

CO2—carbon dioxide

H2O—water

Hg—mercury

hr—hour

kW—kilowatt electrical

kWh—kilowatt hour

lb—pound

mmBtu—million Btu

MWe—megawatt electrical

MWh—megawatt hour

NOX—nitrogen oxides

O2—oxygen

ppm—parts per million

scfh—standard cubic feet per hour

SO2—sulfur dioxide

yr—year

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§97.104   Applicability.

(a) Except as provided in paragraph (b) of this section:

(1) The following units in a State shall be CAIR NOX units, and any source that includes one or more such units shall be a CAIR NOX source, subject to the requirements of this subpart and subparts BB through HH of this part: any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale.

(2) If a stationary boiler or stationary combustion turbine that, under paragraph (a)(1) of this section, is not a CAIR NOX unit begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become a CAIR NOX unit as provided in paragraph (a)(1) of this section on the first date on which it both combusts fossil fuel and serves such generator.

(b) The units in a State that meet the requirements set forth in paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not be CAIR NOX units:

(1)(i) Any unit that is a CAIR NOX unit under paragraph (a)(1) or (2) of this section:

(A) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

(B) Not serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

(ii) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of paragraphs (b)(1)(i) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOX unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of paragraph (b)(1)(i)(B) of this section.

(2)(i) Any unit that is a CAIR NOX unit under paragraph (a)(1) or (2) of this section commencing operation before January 1, 1985:

(A) Qualifying as a solid waste incineration unit; and

(B) With an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(ii) Any unit that is a CAIR NOX unit under paragraph (a)(1) or (2) of this section commencing operation on or after January 1, 1985:

(A) Qualifying as a solid waste incineration unit; and

(B) With an average annual fuel consumption of non-fossil fuel for the first 3 calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(iii) If a unit qualifies as a solid waste incineration unit and meets the requirements of paragraph (b)(2)(i) or (ii) of this section for at least 3 consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOX unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first 3 consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more.

(c) A certifying official of an owner or operator of any unit may petition the Administrator at any time for a determination concerning the applicability, under paragraphs (a) and (b) of this section, of the CAIR NOX Annual Trading Program to the unit.

(1) Petition content. The petition shall be in writing and include the identification of the unit and the relevant facts about the unit. The petition and any other documents provided to the Administrator in connection with the petition shall include the following certification statement, signed by the certifying official: “I am authorized to make this submission on behalf of the owners and operators of the unit for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(2) Submission. The petition and any other documents provided in connection with the petition shall be submitted to the Director of the Clean Air Markets Division (or its successor), U.S. Environmental Protection Agency, who will act on the petition as the Administrator's duly authorized representative.

(3) Response. The Administrator will issue a written response to the petition and may request supplemental information relevant to such petition. The Administrator's determination concerning the applicability, under paragraphs (a) and (b) of this section, of the CAIR NOX Annual Trading Program to the unit shall be binding on the permitting authority unless the petition or other information or documents provided in connection with the petition are found to have contained significant, relevant errors or omissions.

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§97.105   Retired unit exemption.

(a)(1) Any CAIR NOX unit that is permanently retired and is not a CAIR NOX opt-in unit under subpart II of this part shall be exempt from the CAIR NOX Annual Trading Program, except for the provisions of this section, §§97.102, 97.103, 97.104, 97.106(c)(4) through (7), 97.107, 97.108, and subparts BB and EE through GG of this part.

(2) The exemption under paragraph (a)(1) of this section shall become effective the day on which the CAIR NOX unit is permanently retired. Within 30 days of the unit's permanent retirement, the CAIR designated representative shall submit a statement to the permitting authority otherwise responsible for administering any CAIR permit for the unit and shall submit a copy of the statement to the Administrator. The statement shall state, in a format prescribed by the permitting authority, that the unit was permanently retired on a specific date and will comply with the requirements of paragraph (b) of this section.

(3) After receipt of the statement under paragraph (a)(2) of this section, the permitting authority will amend any permit under subpart CC of this part covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraphs (a)(1) and (b) of this section.

(b) Special provisions. (1) A unit exempt under paragraph (a) of this section shall not emit any nitrogen oxides, starting on the date that the exemption takes effect.

(2) The Administrator or the permitting authority will allocate CAIR NOX allowances under subpart EE of this part to a unit exempt under paragraph (a) of this section.

(3) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (a) of this section shall retain, at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-year period for keeping records may be extended for cause, at any time before the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

(4) The owners and operators and, to the extent applicable, the CAIR designated representative of a unit exempt under paragraph (a) of this section shall comply with the requirements of the CAIR NOX Annual Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

(5) A unit exempt under paragraph (a) of this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the CAIR designated representative of the source submits a complete CAIR permit application under §97.122 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2009 or the date on which the unit resumes operation.

(6) On the earlier of the following dates, a unit exempt under paragraph (a) of this section shall lose its exemption:

(i) The date on which the CAIR designated representative submits a CAIR permit application for the unit under paragraph (b)(5) of this section;

(ii) The date on which the CAIR designated representative is required under paragraph (b)(5) of this section to submit a CAIR permit application for the unit; or

(iii) The date on which the unit resumes operation, if the CAIR designated representative is not required to submit a CAIR permit application for the unit.

(7) For the purpose of applying monitoring, reporting, and recordkeeping requirements under subpart HH of this part, a unit that loses its exemption under paragraph (a) of this section shall be treated as a unit that commences commercial operation on the first date on which the unit resumes operation.

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§97.106   Standard requirements.

(a) Permit requirements. (1) The CAIR designated representative of each CAIR NOX source required to have a title V operating permit and each CAIR NOX unit required to have a title V operating permit at the source shall:

(i) Submit to the permitting authority a complete CAIR permit application under §97.122 in accordance with the deadlines specified in §97.121; and

(ii) Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a CAIR permit application and issue or deny a CAIR permit.

(2) The owners and operators of each CAIR NOX source required to have a title V operating permit and each CAIR NOX unit required to have a title V operating permit at the source shall have a CAIR permit issued by the permitting authority under subpart CC of this part for the source and operate the source and the unit in compliance with such CAIR permit.

(3) Except as provided in subpart II of this part, the owners and operators of a CAIR NOX source that is not otherwise required to have a title V operating permit and each CAIR NOX unit that is not otherwise required to have a title V operating permit are not required to submit a CAIR permit application, and to have a CAIR permit, under subpart CC of this part for such CAIR NOX source and such CAIR NOX unit.

(b) Monitoring, reporting, and recordkeeping requirements. (1) The owners and operators, and the CAIR designated representative, of each CAIR NOX source and each CAIR NOX unit at the source shall comply with the monitoring, reporting, and recordkeeping requirements of subpart HH of this part.

(2) The emissions measurements recorded and reported in accordance with subpart HH of this part shall be used to determine compliance by each CAIR NOX source with the CAIR NOX emissions limitation under paragraph (c) of this section.

(c) Nitrogen oxides emission requirements. (1) As of the allowance transfer deadline for a control period, the owners and operators of each CAIR NOX source and each CAIR NOX unit at the source shall hold, in the source's compliance account, CAIR NOX allowances available for compliance deductions for the control period under §97.154(a) in an amount not less than the tons of total nitrogen oxides emissions for the control period from all CAIR NOX units at the source, as determined in accordance with subpart HH of this part.

(2) A CAIR NOX unit shall be subject to the requirements under paragraph (c)(1) of this section for the control period starting on the later of January 1, 2009 or the deadline for meeting the unit's monitor certification requirements under §97.170(b)(1), (2), or (5) and for each control period thereafter.

(3) A CAIR NOX allowance shall not be deducted, for compliance with the requirements under paragraph (c)(1) of this section, for a control period in a calendar year before the year for which the CAIR NOX allowance was allocated.

(4) CAIR NOX allowances shall be held in, deducted from, or transferred into or among CAIR NOX Allowance Tracking System accounts in accordance with subparts EE, FF, GG, and II of this part.

(5) A CAIR NOX allowance is a limited authorization to emit one ton of nitrogen oxides in accordance with the CAIR NOX Annual Trading Program. No provision of the CAIR NOX Annual Trading Program, the CAIR permit application, the CAIR permit, or an exemption under §97.105 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.

(6) A CAIR NOX allowance does not constitute a property right.

(7) Upon recordation by the Administrator under subpart EE, FF, GG, or II of this part, every allocation, transfer, or deduction of a CAIR NOX allowance to or from a CAIR NOX source's compliance account is incorporated automatically in any CAIR permit of the source.

(d) Excess emissions requirements. If a CAIR NOX source emits nitrogen oxides during any control period in excess of the CAIR NOX emissions limitation, then:

(1) The owners and operators of the source and each CAIR NOX unit at the source shall surrender the CAIR NOX allowances required for deduction under §97.154(d)(1) and pay any fine, penalty, or assessment or comply with any other remedy imposed, for the same violations, under the Clean Air Act or applicable State law; and

(2) Each ton of such excess emissions and each day of such control period shall constitute a separate violation of this subpart, the Clean Air Act, and applicable State law.

(e) Recordkeeping and reporting requirements. (1) Unless otherwise provided, the owners and operators of the CAIR NOX source and each CAIR NOX unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time before the end of 5 years, in writing by the permitting authority or the Administrator.

(i) The certificate of representation under §97.113 for the CAIR designated representative for the source and each CAIR NOX unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation; provided that the certificate and documents shall be retained on site at the source beyond such 5-year period until such documents are superseded because of the submission of a new certificate of representation under §97.113 changing the CAIR designated representative.

(ii) All emissions monitoring information, in accordance with subpart HH of this part, provided that to the extent that subpart HH of this part provides for a 3-year period for recordkeeping, the 3-year period shall apply.

(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the CAIR NOX Annual Trading Program.

(iv) Copies of all documents used to complete a CAIR permit application and any other submission under the CAIR NOX Annual Trading Program or to demonstrate compliance with the requirements of the CAIR NOX Annual Trading Program.

(2) The CAIR designated representative of a CAIR NOX source and each CAIR NOX unit at the source shall submit the reports required under the CAIR NOX Annual Trading Program, including those under subpart HH of this part.

(f) Liability. (1) Each CAIR NOX source and each CAIR NOX unit shall meet the requirements of the CAIR NOX Annual Trading Program.

(2) Any provision of the CAIR NOX Annual Trading Program that applies to a CAIR NOX source or the CAIR designated representative of a CAIR NOX source shall also apply to the owners and operators of such source and of the CAIR NOX units at the source.

(3) Any provision of the CAIR NOX Annual Trading Program that applies to a CAIR NOX unit or the CAIR designated representative of a CAIR NOX unit shall also apply to the owners and operators of such unit.

(g) Effect on other authorities. No provision of the CAIR NOX Annual Trading Program, a CAIR permit application, a CAIR permit, or an exemption under §97.105 shall be construed as exempting or excluding the owners and operators, and the CAIR designated representative, of a CAIR NOX source or CAIR NOX unit from compliance with any other provision of the applicable, approved State implementation plan, a federally enforceable permit, or the Clean Air Act.

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§97.107   Computation of time.

(a) Unless otherwise stated, any time period scheduled, under the CAIR NOX Annual Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

(b) Unless otherwise stated, any time period scheduled, under the CAIR NOX Annual Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

(c) Unless otherwise stated, if the final day of any time period, under the CAIR NOX Annual Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.

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§97.108   Appeal procedures.

The appeal procedures for decisions of the Administrator under the CAIR NOX Annual Trading Program are set forth in part 78 of this chapter.

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Subpart BB—CAIR Designated Representative for CAIR NOX Sources

§97.110   Authorization and responsibilities of CAIR designated representative.

(a) Except as provided under §97.111, each CAIR NOX source, including all CAIR NOX units at the source, shall have one and only one CAIR designated representative, with regard to all matters under the CAIR NOX Annual Trading Program concerning the source or any CAIR NOX unit at the source.

(b) The CAIR designated representative of the CAIR NOX source shall be selected by an agreement binding on the owners and operators of the source and all CAIR NOX units at the source and shall act in accordance with the certification statement in §97.113(a)(4)(iv).

(c) Upon receipt by the Administrator of a complete certificate of representation under §97.113, the CAIR designated representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CAIR NOX source represented and each CAIR NOX unit at the source in all matters pertaining to the CAIR NOX Annual Trading Program, notwithstanding any agreement between the CAIR designated representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CAIR designated representative by the permitting authority, the Administrator, or a court regarding the source or unit.

(d) No CAIR permit will be issued, no emissions data reports will be accepted, and no CAIR NOX Allowance Tracking System account will be established for a CAIR NOX unit at a source, until the Administrator has received a complete certificate of representation under §97.113 for a CAIR designated representative of the source and the CAIR NOX units at the source.

(e)(1) Each submission under the CAIR NOX Annual Trading Program shall be submitted, signed, and certified by the CAIR designated representative for each CAIR NOX source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CAIR designated representative: “I am authorized to make this submission on behalf of the owners and operators of the source or units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(2) The permitting authority and the Administrator will accept or act on a submission made on behalf of owner or operators of a CAIR NOX source or a CAIR NOX unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.

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§97.111   Alternate CAIR designated representative.

(a) A certificate of representation under §97.113 may designate one and only one alternate CAIR designated representative, who may act on behalf of the CAIR designated representative. The agreement by which the alternate CAIR designated representative is selected shall include a procedure for authorizing the alternate CAIR designated representative to act in lieu of the CAIR designated representative.

(b) Upon receipt by the Administrator of a complete certificate of representation under §97.113, any representation, action, inaction, or submission by the alternate CAIR designated representative shall be deemed to be a representation, action, inaction, or submission by the CAIR designated representative.

(c) Except in this section and §§97.102, 97.110(a) and (d), 97.112, 97.113, 97.115, 97.151 and 97.182, whenever the term “CAIR designated representative” is used in subparts AA through II of this part, the term shall be construed to include the CAIR designated representative or any alternate CAIR designated representative.

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§97.112   Changing CAIR designated representative and alternate CAIR designated representative; changes in owners and operators.

(a) Changing CAIR designated representative. The CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under §97.113. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new CAIR designated representative and the owners and operators of the CAIR NOX source and the CAIR NOX units at the source.

(b) Changing alternate CAIR designated representative. The alternate CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under §97.113. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new alternate CAIR designated representative and the owners and operators of the CAIR NOX source and the CAIR NOX units at the source.

(c) Changes in owners and operators. (1) In the event an owner or operator of a CAIR NOX source or a CAIR NOX unit is not included in the list of owners and operators in the certificate of representation under §97.113, such owner or operator shall be deemed to be subject to and bound by the certificate of representation, the representations, actions, inactions, and submissions of the CAIR designated representative and any alternate CAIR designated representative of the source or unit, and the decisions and orders of the permitting authority, the Administrator, or a court, as if the owner or operator were included in such list.

(2) Within 30 days following any change in the owners and operators of a CAIR NOX source or a CAIR NOX unit, including the addition of a new owner or operator, the CAIR designated representative or any alternate CAIR designated representative shall submit a revision to the certificate of representation under §97.113 amending the list of owners and operators to include the change.

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§97.113   Certificate of representation.

(a) A complete certificate of representation for a CAIR designated representative or an alternate CAIR designated representative shall include the following elements in a format prescribed by the Administrator:

(1) Identification of the CAIR NOX source, and each CAIR NOX unit at the source, for which the certificate of representation is submitted, including identification and nameplate capacity of each generator served by each such unit.

(2) The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the CAIR designated representative and any alternate CAIR designated representative.

(3) A list of the owners and operators of the CAIR NOX source and of each CAIR NOX unit at the source.

(4) The following certification statements by the CAIR designated representative and any alternate CAIR designated representative—

(i) “I certify that I was selected as the CAIR designated representative or alternate CAIR designated representative, as applicable, by an agreement binding on the owners and operators of the source and each CAIR NOX unit at the source.”

(ii) “I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR NOX Annual Trading Program on behalf of the owners and operators of the source and of each CAIR NOX unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions.”

(iii) “I certify that the owners and operators of the source and of each CAIR NOX unit at the source shall be bound by any order issued to me by the Administrator, the permitting authority, or a court regarding the source or unit.”

(iv) Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, a CAIR NOX unit, or where a utility or industrial customer purchases power from a CAIR NOX unit under a life-of-the-unit, firm power contractual arrangement, I certify that: I have given a written notice of my selection as the ‘CAIR designated representative’ or ‘alternate CAIR designated representative’, as applicable, and of the agreement by which I was selected to each owner and operator of the source and of each CAIR NOX unit at the source; and CAIR NOX allowances and proceeds of transactions involving CAIR NOX allowances will be deemed to be held or distributed in proportion to each holder's legal, equitable, leasehold, or contractual reservation or entitlement, except that, if such multiple holders have expressly provided for a different distribution of CAIR NOX allowances by contract, CAIR NOX allowances and proceeds of transactions involving CAIR NOX allowances will be deemed to be held or distributed in accordance with the contract.”

(5) The signature of the CAIR designated representative and any alternate CAIR designated representative and the dates signed.

(b) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the certificate of representation shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

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§97.114   Objections concerning CAIR designated representative.

(a) Once a complete certificate of representation under §97.113 has been submitted and received, the permitting authority and the Administrator will rely on the certificate of representation unless and until a superseding complete certificate of representation under §97.113 is received by the Administrator.

(b) Except as provided in §97.112(a) or (b), no objection or other communication submitted to the permitting authority or the Administrator concerning the authorization, or any representation, action, inaction, or submission, of the CAIR designated representative shall affect any representation, action, inaction, or submission of the CAIR designated representative or the finality of any decision or order by the permitting authority or the Administrator under the CAIR NOX Annual Trading Program.

(c) Neither the permitting authority nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CAIR designated representative, including private legal disputes concerning the proceeds of CAIR NOX allowance transfers.

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§97.115   Delegation by CAIR designated representative and alternate CAIR designated representative.

(a) A CAIR designated representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under this part.

(b) An alternate CAIR designated representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under this part.

(c) In order to delegate authority to make an electronic submission to the Administrator in accordance with paragraph (a) or (b) of this section, the CAIR designated representative or alternate CAIR designated representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

(1) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR designated representative or alternate CAIR designated representative;

(2) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of each such natural person (referred to as an “agent”);

(3) For each such natural person, a list of the type or types of electronic submissions under paragraph (a) or (b) of this section for which authority is delegated to him or her; and

(4) The following certification statements by such CAIR designated representative or alternate CAIR designated representative:

(i) “I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR designated representative or alternate CAIR designated representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 40 CFR 97.115(d) shall be deemed to be an electronic submission by me.”

(ii) “Until this notice of delegation is superseded by another notice of delegation under 40 CFR 97.115(d), I agree to maintain an e-mail account and to notify the Administrator immediately of any change in my e-mail address unless all delegation of authority by me under 40 CFR 97.115 is terminated.”.

(d) A notice of delegation submitted under paragraph (c) of this section shall be effective, with regard to the CAIR designated representative or alternate CAIR designated representative identified in such notice, upon receipt of such notice by the Administrator and until receipt by the Administrator of a superseding notice of delegation submitted by such CAIR designated representative or alternate CAIR designated representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

(e) Any electronic submission covered by the certification in paragraph (c)(4)(i) of this section and made in accordance with a notice of delegation effective under paragraph (d) of this section shall be deemed to be an electronic submission by the CAIR designated representative or alternate CAIR designated representative submitting such notice of delegation.

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Subpart CC—Permits

§97.120   General CAIR NOX Annual Trading Program permit requirements.

(a) For each CAIR NOX source required to have a title V operating permit or required, under subpart II of this part, to have a title V operating permit or other federally enforceable permit, such permit shall include a CAIR permit administered by the permitting authority for the title V operating permit or the federally enforceable permit as applicable. The CAIR portion of the title V permit or other federally enforceable permit as applicable shall be administered in accordance with the permitting authority's title V operating permits regulations promulgated under part 70 or 71 of this chapter or the permitting authority's regulations for other federally enforceable permits as applicable, except as provided otherwise by §97.105, this subpart, and subpart II of this part.

(b) Each CAIR permit shall contain, with regard to the CAIR NOX source and the CAIR NOX units at the source covered by the CAIR permit, all applicable CAIR NOX Annual Trading Program, CAIR NOX Ozone Season Trading Program, and CAIR SO2 Trading Program requirements and shall be a complete and separable portion of the title V operating permit or other federally enforceable permit under paragraph (a) of this section.

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§97.121   Submission of CAIR permit applications.

(a) Duty to apply. The CAIR designated representative of any CAIR NOX source required to have a title V operating permit shall submit to the permitting authority a complete CAIR permit application under §97.122 for the source covering each CAIR NOX unit at the source at least 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2009 or the date on which the CAIR NOX unit commences commercial operation, except as provided in §97.183(a).

(b) Duty to reapply. For a CAIR NOX source required to have a title V operating permit, the CAIR designated representative shall submit a complete CAIR permit application under §97.122 for the source covering each CAIR NOX unit at the source to renew the CAIR permit in accordance with the permitting authority's title V operating permits regulations addressing permit renewal, except as provided in §97.183(b).

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§97.122   Information requirements for CAIR permit applications.

A complete CAIR permit application shall include the following elements concerning the CAIR NOX source for which the application is submitted, in a format prescribed by the permitting authority:

(a) Identification of the CAIR NOX source;

(b) Identification of each CAIR NOX unit at the CAIR NOX source; and

(c) The standard requirements under §97.106.

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§97.123   CAIR permit contents and term.

(a) Each CAIR permit will contain, in a format prescribed by the permitting authority, all elements required for a complete CAIR permit application under §97.122.

(b) Each CAIR permit is deemed to incorporate automatically the definitions of terms under §97.102 and, upon recordation by the Administrator under subpart EE, FF, GG, or II of this part, every allocation, transfer, or deduction of a CAIR NOX allowance to or from the compliance account of the CAIR NOX source covered by the permit.

(c) The term of the CAIR permit will be set by the permitting authority, as necessary to facilitate coordination of the renewal of the CAIR permit with issuance, revision, or renewal of the CAIR NOX source's title V operating permit or other federally enforceable permit as applicable.

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§97.124   CAIR permit revisions.

Except as provided in §97.123(b), the permitting authority will revise the CAIR permit, as necessary, in accordance with the permitting authority's title V operating permits regulations or the permitting authority's regulations for other federally enforceable permits as applicable addressing permit revisions.

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Subpart DD [Reserved]

Subpart EE—CAIR NOX Allowance Allocations

§97.140   State trading budgets.

The State trading budgets for annual allocations of CAIR NOX allowances for the control periods in 2009 through 2014 and in 2015 and thereafter are respectively as follows:

StateState trading budget for 2009-2014
(tons)
State trading budget for 2015 and thereafter
(tons)
Alabama69,02057,517
Delaware4,1663,472
District of Columbia144120
Florida99,44582,871
Georgia66,32155,268
Illinois76,23063,525
Indiana108,93590,779
Iowa32,69227,243
Kentucky83,20569,337
Louisiana35,51229,593
Maryland27,72423,104
Michigan65,30454,420
Minnesota31,44326,203
Mississippi17,80714,839
Missouri59,87149,892
New Jersey12,67010,558
New York45,61738,014
North Carolina62,18351,819
Ohio108,66790,556
Pennsylvania99,04982,541
South Carolina32,66227,219
Tennessee50,97342,478
Texas181,014150,845
Virginia36,07430,062
West Virginia74,22061,850
Wisconsin40,75933,966
Total1,521,7071,268,091

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§97.141   Timing requirements for CAIR NOX allowance allocations.

(a) The Administrator will determine by order the CAIR NOX allowance allocations, in accordance with §97.142(a) and (b), for the control periods in 2009, 2010, 2011, 2012, 2013, and 2014.

(b) By July 31, 2011 and July 31 of each year thereafter, the Administrator will determine by order the CAIR NOX allowance allocations, in accordance with §97.142(a) and (b), for the control period in the fourth year after the year of the applicable deadline for determination under this paragraph.

(c) By July 31, 2009 and July 31 of each year thereafter, the Administrator will determine by order the CAIR NOX allowance allocations, in accordance with §97.142(a),(c), and (d), for the control period in the year of the applicable deadline for determination under this paragraph.

(d) The Administrator will make available to the public each determination of CAIR NOX allowances under paragraph (a), (b), or (c) of this section and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with §97.142. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with §97.142.

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§97.142   CAIR NOX allowance allocations.

(a)(1) The baseline heat input (in mmBtu) used with respect to CAIR NOX allowance allocations under paragraph (b) of this section for each CAIR NOX unit will be:

(i) For units commencing operation before January 1, 2001 the average of the 3 highest amounts of the unit's adjusted control period heat input for 2000 through 2004, with the adjusted control period heat input for each year calculated as follows:

(A) If the unit is coal-fired during the year, the unit's control period heat input for such year is multiplied by 100 percent;

(B) If the unit is oil-fired during the year, the unit's control period heat input for such year is multiplied by 60 percent; and

(C) If the unit is not subject to paragraph (a)(1)(i)(A) or (B) of this section, the unit's control period heat input for such year is multiplied by 40 percent.

(ii) For units commencing operation on or after January 1, 2001 and operating each calendar year during a period of 5 or more consecutive calendar years, the average of the 3 highest amounts of the unit's total converted control period heat input over the first such 5 years.

(2)(i) A unit's control period heat input, and a unit's status as coal-fired or oil-fired, for a calendar year under paragraph (a)(1)(i) of this section, and a unit's total tons of NOX emissions during a calendar year under paragraph (c)(3) of this section, will be determined in accordance with part 75 of this chapter, to the extent the unit was otherwise subject to the requirements of part 75 of this chapter for the year, or will be based on the best available data reported to the Administrator for the unit (in a format prescribed by the Administrator), to the extent the unit was not otherwise subject to the requirements of part 75 of this chapter for the year.

(ii) A unit's converted control period heat input for a calendar year specified under paragraph (a)(1)(ii) of this section equals:

(A) Except as provided in paragraph (a)(2)(ii)(B) or (C) of this section, the control period gross electrical output of the generator or generators served by the unit multiplied by 7,900 Btu/kWh, if the unit is coal-fired for the year, or 6,675 Btu/kWh, if the unit is not coal-fired for the year, and divided by 1,000,000 Btu/mmBtu, provided that if a generator is served by 2 or more units, then the gross electrical output of the generator will be attributed to each unit in proportion to the unit's share of the total control period heat input of such units for the year;

(B) For a unit that is a boiler and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the total heat energy (in Btu) of the steam produced by the boiler during the control period, divided by 0.8 and by 1,000,000 Btu/mmBtu; or

(C) For a unit that is a combustion turbine and has equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy, the control period gross electrical output of the enclosed device comprising the compressor, combustor, and turbine multiplied by 3,413 Btu/kWh, plus the total heat energy (in Btu) of the steam produced by any associated heat recovery steam generator during the control period divided by 0.8, and with the sum divided by 1,000,000 Btu/mmBtu.

(iii) Gross electrical output and total heat energy under paragraph (a)(2)(ii) of this section will be determined based on the best available data reported to the Administrator for the unit (in a format prescribed by the Administrator).

(3) The Administrator will determine what data are the best available data under paragraph (a)(2) of this section by weighing the likelihood that data are accurate and reliable and giving greater weight to data submitted to a governmental entity in compliance with legal requirements or substantiated by an independent entity.

(b)(1) For each control period in 2009 and thereafter, the Administrator will allocate to all CAIR NOX units in a State that have a baseline heat input (as determined under paragraph (a) of this section) a total amount of CAIR NOX allowances equal to 95 percent for a control period during 2009 through 2014, and 97 percent for a control period during 2015 and thereafter, of the tons of NOX emissions in the applicable State trading budget under §97.140 (except as provided in paragraphs (d) and (e) of this section).

(2) The Administrator will allocate CAIR NOX allowances to each CAIR NOX unit under paragraph (b)(1) of this section in an amount determined by multiplying the total amount of CAIR NOX allowances allocated under paragraph (b)(1) of this section by the ratio of the baseline heat input of such CAIR NOX unit to the total amount of baseline heat input of all such CAIR NOX units in the State and rounding to the nearest whole allowance as appropriate.

(c) For each control period in 2009 and thereafter, the Administrator will allocate CAIR NOX allowances to CAIR NOX units in a State that are not allocated CAIR NOX allowances under paragraph (b) of this section because the units do not yet have a baseline heat input under paragraph (a) of this section or because the units have a baseline heat input but all CAIR NOX allowances available under paragraph (b) of this section for the control period are already allocated, in accordance with the following procedures:

(1) The Administrator will establish a separate new unit set-aside for each control period. Each new unit set-aside will be allocated CAIR NOX allowances equal to 5 percent for a control period in 2009 through 2014, and 3 percent for a control period in 2015 and thereafter, of the amount of tons of NOX emissions in the applicable State trading budget under §97.140.

(2) The CAIR designated representative of such a CAIR NOX unit may submit to the Administrator a request, in a format specified by the Administrator, to be allocated CAIR NOX allowances, starting with the later of the control period in 2009 or the first control period after the control period in which the CAIR NOX unit commences commercial operation and until the first control period for which the unit is allocated CAIR NOX allowances under paragraph (b) of this section. A separate CAIR NOX allowance allocation request for each control period for which CAIR NOX allowances are sought must be submitted on or before May 1 of such control period and after the date on which the CAIR NOX unit commences commercial operation.

(3) In a CAIR NOX allowance allocation request under paragraph (c)(2) of this section, the CAIR designated representative may request for a control period CAIR NOX allowances in an amount not exceeding the CAIR NOX unit's total tons of NOX emissions during the calendar year immediately before such control period.

(4) The Administrator will review each CAIR NOX allowance allocation request under paragraph (c)(2) of this section and will allocate CAIR NOX allowances for each control period pursuant to such request as follows:

(i) The Administrator will accept an allowance allocation request only if the request meets, or is adjusted by the Administrator as necessary to meet, the requirements of paragraphs (c)(2) and (3) of this section.

(ii) On or after May 1 of the control period, the Administrator will determine the sum of the CAIR NOX allowances requested (as adjusted under paragraph (c)(4)(i) of this section) in all allowance allocation requests accepted under paragraph (c)(4)(i) of this section for the control period.

(iii) If the amount of CAIR NOX allowances in the new unit set-aside for the control period is greater than or equal to the sum under paragraph (c)(4)(ii) of this section, then the Administrator will allocate the amount of CAIR NOX allowances requested (as adjusted under paragraph (c)(4)(i) of this section) to each CAIR NOX unit covered by an allowance allocation request accepted under paragraph (c)(4)(i) of this section.

(iv) If the amount of CAIR NOX allowances in the new unit set-aside for the control period is less than the sum under paragraph (c)(4)(ii) of this section, then the Administrator will allocate to each CAIR NOX unit covered by an allowance allocation request accepted under paragraph (c)(4)(i) of this section the amount of the CAIR NOX allowances requested (as adjusted under paragraph (c)(4)(i) of this section), multiplied by the amount of CAIR NOX allowances in the new unit set-aside for the control period, divided by the sum determined under paragraph (c)(4)(ii) of this section, and rounded to the nearest whole allowance as appropriate.

(v) The Administrator will notify each CAIR designated representative that submitted an allowance allocation request of the amount of CAIR NOX allowances (if any) allocated for the control period to the CAIR NOX unit covered by the request.

(d) If, after completion of the procedures under paragraph (c)(4) of this section for a control period, any unallocated CAIR NOX allowances remain in the new unit set-aside under paragraph (c) of this section for a State for the control period, the Administrator will allocate to each CAIR NOX unit that was allocated CAIR NOX allowances under paragraph (b) of this section in the State an amount of CAIR NOX allowances equal to the total amount of such remaining unallocated CAIR NOX allowances, multiplied by the unit's allocation under paragraph (b) of this section, divided by 95 percent for a control period during 2009 through 2014, and 97 percent for a control period during 2015 and thereafter, of the amount of tons of NOX emissions in the applicable State trading budget under §97.140, and rounded to the nearest whole allowance as appropriate.

(e) If the Administrator determines that CAIR NOX allowances were allocated under paragraphs (a) and (b) of this section, paragraphs (a) and (c) of this section, or paragraph (d) of this section for a control period and that the recipient of the allocation is not actually a CAIR NOX unit under §97.104 in such control period, then the Administrator will notify the CAIR designated representative and will act in accordance with the following procedures:

(1) Except as provided in paragraph (e)(2) or (3) of this section, the Administrator will not record such CAIR NOX allowances under §97.153.

(2) If the Administrator already recorded such CAIR NOX allowances under §97.153 and if the Administrator makes such determination before making deductions for the source that includes such recipient under §97.154(b) for the control period, then the Administrator will deduct from the account in which such CAIR NOX allowances were recorded under §97.153 an amount of CAIR NOX allowances allocated for the same or a prior control period equal to the amount of such already recorded CAIR NOX allowances. The CAIR designated representative shall ensure that there are sufficient CAIR NOX allowances in such account for completion of the deduction.

(3) If the Administrator already recorded such CAIR NOX allowances under §97.153 and if the Administrator makes such determination after making deductions for the source that includes such recipient under §97.154(b) for the control period, then the Administrator will apply paragraph (e)(1) or (2) of this section, as appropriate, to any subsequent control period for which CAIR NOX allowances were allocated to such recipient.

(4) The Administrator will transfer the CAIR NOX allowances that are not recorded, or that are deducted, in accordance with paragraphs (e)(1), (2), and (3) of this section to a new unit set-aside for the State in which such recipient is located.

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§97.143   Compliance supplement pool.

(a) In addition to the CAIR NOX allowances allocated under §97.142, the Administrator may allocate for the control period in 2009 up to the following amount of CAIR NOX allowances to CAIR NOX units in the respective State:

State Compliance
supplement
pool
Alabama10,166
Delaware843
District of Columbia0
Florida8,335
Georgia12,397
Illinois11,299
Indiana20,155
Iowa6,978
Kentucky14,935
Louisiana2,251
Maryland4,670
Michigan8,347
Minnesota6,528
Mississippi3,066
Missouri9,044
New Jersey660
New York0
North Carolina0
Ohio25,037
Pennsylvania16,009
South Carolina2,600
Tennessee8,944
Texas772
Virginia5,134
West Virginia16,929
Wisconsin4,898
Total199,997

(b) For any CAIR NOX unit in a State, if the unit's average annual NOX emission rate for 2007 or 2008 is less than 0.25 lb/mmBtu and, where such unit is included in a NOX averaging plan under §76.11 of this chapter under the Acid Rain Program for such year, the unit's NOX averaging plan has an actual weighted average NOX emission rate for such year equal to or less than the actual weighted average NOX emission rate for the year before such year and if the unit achieves NOX emission reductions in 2007 and 2008, the CAIR designated representative of the unit may request early reduction credits, and allocation of CAIR NOX allowances from the compliance supplement pool under paragraph (a) of this section for such early reduction credits, in accordance with the following:

(1) The owners and operators of such CAIR NOX unit shall monitor and report the NOX emissions rate and the heat input of the unit in accordance with subpart HH of this part in each control period for which early reduction credit is requested.

(2) The CAIR designated representative of such CAIR NOX unit shall submit to the Administrator by May 1, 2009 a request, in a format specified by the Administrator, for allocation of an amount of CAIR NOX allowances from the compliance supplement pool not exceeding the sum of the unit's heat input for the control period in 2007 multiplied by the difference (if any greater than zero) between 0.25 lb/mmBtu and the unit's NOX emission rate for the control period in 2007 plus the unit's heat input for the control period in 2008 multiplied by the difference (if any greater than zero) between 0.25 lb/mmBtu and the unit's NOX emission rate for the control period in 2008, determined in accordance with subpart HH of this part and with the sum divided by 2,000 lb/ton and rounded to the nearest whole number of tons as appropriate.

(c) For any CAIR NOX unit in a State whose compliance with the CAIR NOX emissions limitation for the control period in 2009 would create an undue risk to the reliability of electricity supply during such control period, the CAIR designated representative of the unit may request the allocation of CAIR NOX allowances from the compliance supplement pool under paragraph (a) of this section, in accordance with the following:

(1) The CAIR designated representative of such CAIR NOX unit shall submit to the Administrator by May 1, 2009 a request, in a format specified by the Administrator, for allocation of an amount of CAIR NOX allowances from the compliance supplement pool not exceeding the minimum amount of CAIR NOX allowances necessary to remove such undue risk to the reliability of electricity supply.

(2) In the request under paragraph (c)(1) of this section, the CAIR designated representative of such CAIR NOX unit shall demonstrate that, in the absence of allocation to the unit of the amount of CAIR NOX allowances requested, the unit's compliance with the CAIR NOX emissions limitation for the control period in 2009 would create an undue risk to the reliability of electricity supply during such control period. This demonstration must include a showing that it would not be feasible for the owners and operators of the unit to:

(i) Obtain a sufficient amount of electricity from other electricity generation facilities, during the installation of control technology at the unit for compliance with the CAIR NOX emissions limitation, to prevent such undue risk; or

(ii) Obtain under paragraphs (b) and (d) of this section, or otherwise obtain, a sufficient amount of CAIR NOX allowances to prevent such undue risk.

(d) The Administrator will review each request under paragraph (b) or (c) of this section submitted by May 1, 2009 and will allocate CAIR NOX allowances for the control period in 2009 to CAIR NOX units in a State and covered by such request as follows:

(1) Upon receipt of each such request, the Administrator will make any necessary adjustments to the request to ensure that the amount of the CAIR NOX allowances requested meets the requirements of paragraph (b) or (c) of this section.

(2) If the State's compliance supplement pool under paragraph (a) of this section has an amount of CAIR NOX allowances not less than the total amount of CAIR NOX allowances in all such requests (as adjusted under paragraph (d)(1) of this section), the Administrator will allocate to each CAIR NOX unit covered by such requests the amount of CAIR NOX allowances requested (as adjusted under paragraph (d)(1) of this section).

(3) If the State's compliance supplement pool under paragraph (a) of this section has a smaller amount of CAIR NOX allowances than the total amount of CAIR NOX allowances in all such requests (as adjusted under paragraph (d)(1) of this section), the Administrator will allocate CAIR NOX allowances to each CAIR NOX unit covered by such requests according to the following formula and rounding to the nearest whole allowance as appropriate:

Unit's allocation = Unit's adjusted allocation × (State's compliance supplement pool ÷ Total adjusted allocations for all units)

Where:

“Unit's allocation” is the amount of CAIR NOX allowances allocated to the unit from the State's compliance supplement pool.

“Unit's adjusted allocation” is the amount of CAIR NOX allowances requested for the unit under paragraph (b) or (c) of this section, as adjusted under paragraph (d)(1) of this section.

“State's compliance supplement pool” is the amount of CAIR NOX allowances in the State's compliance supplement pool.

“Total adjusted allocations for all units” is the sum of the amounts of allocations requested for all units under paragraph (b) or (c) of this section, as adjusted under paragraph (d)(1) of this section.

(4) By July 31, 2009, the Administrator will determine by order the allocations under paragraph (d)(2) or (3) of this section. The Administrator will make available to the public each determination of CAIR NOX allowances under such paragraph and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with paragraph (b) or (c) of this section and paragraph (d)(2) or (3) of this section, as appropriate. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with such paragraphs.

(5) By January 1, 2010, the Administrator will record the allocations under paragraph (d)(4) of this section.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

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§97.144   Alternative of allocation of CAIR NOX allowances and compliance supplement pool by permitting authority.

(a) Notwithstanding §§97.141, 97.142, and 97.153 if a State submits, and the Administrator approves, a State implementation plan revision in accordance with §51.123(p)(1) of this chapter providing for allocation of CAIR NOX allowances by the permitting authority, then the permitting authority shall make such allocations in accordance with such approved State implementation plan revision, the Administrator will not make allocations under §§97.141 and 97.142 for the CAIR NOX units in the State, and under §97.153, the Administrator will record the allocations made under such approved State implementation plan revision instead of allocations made under §§97.141 and 97.142.

(b) Notwithstanding §97.143, if a State submits, and the Administrator approves, a State implementation plan revision in accordance with §51.123(p)(2) of this chapter providing for allocation of the State's compliance supplement pool by the permitting authority, then the permitting authority shall make such allocations in accordance with such approved State implementation plan revision, the Administrator will not make allocations under §97.143(d)(4) for the CAIR NOX units in the State, and under §97.143(d)(5), the Administrator will record the allocations of the State's compliance supplement pool made under such approved State implementation plan revision instead of allocations made under §97.143(d)(4).

(c)(1) In implementing paragraph (a) of this section and §§97.141, 97.142, and 97.153, the Administrator will ensure that the total amount of CAIR NOX allowances allocated, under such provisions and under a State's State implementation plan revision approved in accordance with §51.123(p)(1) of this chapter, for a control period for CAIR NOX sources in the State or for other entities specified by the permitting authority will not exceed the State's State trading budget for the year of the control period.

(2) In implementing paragraph (b) of this section and §97.143, the Administrator will ensure that the total amount of CAIR NOX allowances allocated, under such provisions and under a State's State implementation plan revision approved in accordance with §51.123(p)(2), for CAIR NOX sources in the State will not exceed the State's compliance supplement pool.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

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Appendix A to Subpart EE of Part 97—States With Approved State Implementation Plan Revisions Concerning Allocations

1. The following States have State Implementation Plan revisions under §51.123(p)(1) of this chapter approved by the Administrator and providing for allocation of CAIR NOX allowances by the permitting authority under §97.144(a):

Indiana

Louisiana

Michigan

New Jersey

North Carolina

Ohio

South Carolina

Tennessee

Texas (for control periods 2009-2014)

West Virginia (for control periods 2009-2014)

Wisconsin

2. The following States have State Implementation Plan revisions under §51.123(p)(2) of this chapter approved by the Administrator and providing for allocation of the Compliance Supplement Pool by the permitting authority under §97.144(b):

Indiana

Michigan

New Jersey

Ohio

South Carolina

Texas

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 41459, July 30, 2007; 72 FR 46394, Aug. 20, 2007; 72 FR 52293, Sept. 13, 2007; 72 FR 55068, Sept. 28, 2007; 72 FR 55672, Oct. 1, 2007; 72 FR 56920, Oct. 5, 2007; 72 FR 57215, Oct. 9, 2007; 72 FR 58546, Oct. 16, 2007; 72 FR 59487, Oct. 22, 2007; 72 FR 71579, Dec. 18, 2007; 72 FR 72262, Dec. 20, 2007; 73 FR 6040, Feb. 1, 2008]

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Subpart FF—CAIR NOX Allowance Tracking System

§97.150   [Reserved]

§97.151   Establishment of accounts.

(a) Compliance accounts. Except as provided in §97.184(e), upon receipt of a complete certificate of representation under §97.113, the Administrator will establish a compliance account for the CAIR NOX source for which the certificate of representation was submitted, unless the source already has a compliance account.

(b) General accounts—(1) Application for general account. (i) Any person may apply to open a general account for the purpose of holding and transferring CAIR NOX allowances. An application for a general account may designate one and only one CAIR authorized account representative and one and only one alternate CAIR authorized account representative who may act on behalf of the CAIR authorized account representative. The agreement by which the alternate CAIR authorized account representative is selected shall include a procedure for authorizing the alternate CAIR authorized account representative to act in lieu of the CAIR authorized account representative.

(ii) A complete application for a general account shall be submitted to the Administrator and shall include the following elements in a format prescribed by the Administrator:

(A) Name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the CAIR authorized account representative and any alternate CAIR authorized account representative;

(B) Organization name and type of organization, if applicable;

(C) A list of all persons subject to a binding agreement for the CAIR authorized account representative and any alternate CAIR authorized account representative to represent their ownership interest with respect to the CAIR NOX allowances held in the general account;

(D) The following certification statement by the CAIR authorized account representative and any alternate CAIR authorized account representative: “I certify that I was selected as the CAIR authorized account representative or the alternate CAIR authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CAIR NOX allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR NOX Annual Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account.”

(E) The signature of the CAIR authorized account representative and any alternate CAIR authorized account representative and the dates signed.

(iii) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

(2) Authorization of CAIR authorized account representative and alternate CAIR authorized account representative. (i) Upon receipt by the Administrator of a complete application for a general account under paragraph (b)(1) of this section:

(A) The Administrator will establish a general account for the person or persons for whom the application is submitted.

(B) The CAIR authorized account representative and any alternate CAIR authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CAIR NOX allowances held in the general account in all matters pertaining to the CAIR NOX Annual Trading Program, notwithstanding any agreement between the CAIR authorized account representative or any alternate CAIR authorized account representative and such person. Any such person shall be bound by any order or decision issued to the CAIR authorized account representative or any alternate CAIR authorized account representative by the Administrator or a court regarding the general account.

(C) Any representation, action, inaction, or submission by any alternate CAIR authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CAIR authorized account representative.

(ii) Each submission concerning the general account shall be submitted, signed, and certified by the CAIR authorized account representative or any alternate CAIR authorized account representative for the persons having an ownership interest with respect to CAIR NOX allowances held in the general account. Each such submission shall include the following certification statement by the CAIR authorized account representative or any alternate CAIR authorized account representative: “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CAIR NOX allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(iii) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with paragraph (b)(2)(ii) of this section.

(3) Changing CAIR authorized account representative and alternate CAIR authorized account representative; changes in persons with ownership interest. (i) The CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR NOX allowances in the general account.

(ii) The alternate CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new alternate CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR NOX allowances in the general account.

(iii)(A) In the event a person having an ownership interest with respect to CAIR NOX allowances in the general account is not included in the list of such persons in the application for a general account, such person shall be deemed to be subject to and bound by the application for a general account, the representation, actions, inactions, and submissions of the CAIR authorized account representative and any alternate CAIR authorized account representative of the account, and the decisions and orders of the Administrator or a court, as if the person were included in such list.

(B) Within 30 days following any change in the persons having an ownership interest with respect to CAIR NOX allowances in the general account, including the addition of a new person, the CAIR authorized account representative or any alternate CAIR authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CAIR NOX allowances in the general account to include the change.

(4) Objections concerning CAIR authorized account representative and alternate CAIR authorized account representative. (i) Once a complete application for a general account under paragraph (b)(1) of this section has been submitted and received, the Administrator will rely on the application unless and until a superseding complete application for a general account under paragraph (b)(1) of this section is received by the Administrator.

(ii) Except as provided in paragraph (b)(3)(i) or (ii) of this section, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account shall affect any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative or the finality of any decision or order by the Administrator under the CAIR NOX Annual Trading Program.

(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account, including private legal disputes concerning the proceeds of CAIR NOX allowance transfers.

(5) Delegation by CAIR authorized account representative and alternate CAIR authorized account representative. (i) A CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under subparts FF and GG of this part.

(ii) An alternate CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under subparts FF and GG of this part.

(iii) In order to delegate authority to make an electronic submission to the Administrator in accordance with paragraph (b)(5)(i) or (ii) of this section, the CAIR authorized account representative or alternate CAIR authorized account representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

(A) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR authorized account representative or alternate CAIR authorized account representative;

(B) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of each such natural person (referred to as an “agent”);

(C) For each such natural person, a list of the type or types of electronic submissions under paragraph (b)(5)(i) or (ii) of this section for which authority is delegated to him or her;

(D) The following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: “I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR authorized account representative or alternate CAIR authorized representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 40 CFR 97.151(b)(5)(iv) shall be deemed to be an electronic submission by me.”; and

(E) The following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: “Until this notice of delegation is superseded by another notice of delegation under 40 CFR 97.151(b)(5)(iv), I agree to maintain an e-mail account and to notify the Administrator immediately of any change in my e-mail address unless all delegation of authority by me under 40 CFR 97.151(b)(5) is terminated.”.

(iv) A notice of delegation submitted under paragraph (b)(5)(iii) of this section shall be effective, with regard to the CAIR authorized account representative or alternate CAIR authorized account representative identified in such notice, upon receipt of such notice by the Administrator and until receipt by the Administrator of a superseding notice of delegation submitted by such CAIR authorized account representative or alternate CAIR authorized account representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

(v) Any electronic submission covered by the certification in paragraph (b)(5)(iii)(D) of this section and made in accordance with a notice of delegation effective under paragraph (b)(5)(iv) of this section shall be deemed to be an electronic submission by the CAIR designated representative or alternate CAIR designated representative submitting such notice of delegation.

(c) Account identification. The Administrator will assign a unique identifying number to each account established under paragraph (a) or (b) of this section.

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§97.152   Responsibilities of CAIR authorized account representative.

Following the establishment of a CAIR NOX Allowance Tracking System account, all submissions to the Administrator pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of CAIR NOX allowances in the account, shall be made only by the CAIR authorized account representative for the account.

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§97.153   Recordation of CAIR NOX allowance allocations.

(a) By September 30, 2007, the Administrator will record in the CAIR NOX source's compliance account the CAIR NOX allowances allocated for the CAIR NOX units at the source in accordance with §97.142(a) and (b) for the control period in 2009.

(b) By September 30, 2008, the Administrator will record in the CAIR NOX source's compliance account the CAIR NOX allowances allocated for the CAIR NOX units at the source in accordance with §97.142(a) and (b) for the control period in 2010.

(c) By September 30, 2009, the Administrator will record in the CAIR NOX source's compliance account the CAIR NOX allowances allocated for the CAIR NOX units at the source in accordance with §97.142(a) and (b) for the control periods in 2011, 2012, and 2013.

(d) By December 1, 2010 and December 1 of each year thereafter, the Administrator will record in the CAIR NOX source's compliance account the CAIR NOX allowances allocated for the CAIR NOX units at the source in accordance with §97.142(a) and (b) for the control period in the fourth year after the year of the applicable deadline for recordation under this paragraph.

(e) By December 1, 2009 and December 1 of each year thereafter, the Administrator will record in the CAIR NOX source's compliance account the CAIR NOX allowances allocated for the CAIR NOX units at the source in accordance with §97.142(a) and (c) for the control period in the year of the applicable deadline for recordation under this paragraph.

(f) Serial numbers for allocated CAIR NOX allowances. When recording the allocation of CAIR NOX allowances for a CAIR NOX unit in a compliance account, the Administrator will assign each CAIR NOX allowance a unique identification number that will include digits identifying the year of the control period for which the CAIR NOX allowance is allocated.

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§97.154   Compliance with CAIR NOX emissions limitation.

(a) Allowance transfer deadline. The CAIR NOX allowances are available to be deducted for compliance with a source's CAIR NOX emissions limitation for a control period in a given calendar year only if the CAIR NOX allowances:

(1) Were allocated for the control period in the year or a prior year; and

(2) Are held in the compliance account as of the allowance transfer deadline for the control period or are transferred into the compliance account by a CAIR NOX allowance transfer correctly submitted for recordation under §§97.160 and 97.161 by the allowance transfer deadline for the control period.

(b) Deductions for compliance. Following the recordation, in accordance with §97.161, of CAIR NOX allowance transfers submitted for recordation in a source's compliance account by the allowance transfer deadline for a control period, the Administrator will deduct from the compliance account CAIR NOX allowances available under paragraph (a) of this section in order to determine whether the source meets the CAIR NOX emissions limitation for the control period, as follows:

(1) Until the amount of CAIR NOX allowances deducted equals the number of tons of total nitrogen oxides emissions, determined in accordance with subpart HH of this part, from all CAIR NOX units at the source for the control period; or

(2) If there are insufficient CAIR NOX allowances to complete the deductions in paragraph (b)(1) of this section, until no more CAIR NOX allowances available under paragraph (a) of this section remain in the compliance account.

(c)(1) Identification of CAIR NOX allowances by serial number. The CAIR authorized account representative for a source's compliance account may request that specific CAIR NOX allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period in accordance with paragraph (b) or (d) of this section. Such request shall be submitted to the Administrator by the allowance transfer deadline for the control period and include, in a format prescribed by the Administrator, the identification of the CAIR NOX source and the appropriate serial numbers.

(2) First-in, first-out. The Administrator will deduct CAIR NOX allowances under paragraph (b) or (d) of this section from the source's compliance account, in the absence of an identification or in the case of a partial identification of CAIR NOX allowances by serial number under paragraph (c)(1) of this section, on a first-in, first-out (FIFO) accounting basis in the following order:

(i) Any CAIR NOX allowances that were allocated to the units at the source, in the order of recordation; and then

(ii) Any CAIR NOX allowances that were allocated to any entity and transferred and recorded in the compliance account pursuant to subpart GG of this part, in the order of recordation.

(d) Deductions for excess emissions. (1) After making the deductions for compliance under paragraph (b) of this section for a control period in a calendar year in which the CAIR NOX source has excess emissions, the Administrator will deduct from the source's compliance account an amount of CAIR NOX allowances, allocated for the control period in the immediately following calendar year, equal to 3 times the number of tons of the source's excess emissions.

(2) Any allowance deduction required under paragraph (d)(1) of this section shall not affect the liability of the owners and operators of the CAIR NOX source or the CAIR NOX units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violations, as ordered under the Clean Air Act or applicable State law.

(e) Recordation of deductions. The Administrator will record in the appropriate compliance account all deductions from such an account under paragraphs (b) and (d) of this section and subpart II.

(f) Administrator's action on submissions. (1) The Administrator may review and conduct independent audits concerning any submission under the CAIR NOX Annual Trading Program and make appropriate adjustments of the information in the submissions.

(2) The Administrator may deduct CAIR NOX allowances from or transfer CAIR NOX allowances to a source's compliance account based on the information in the submissions, as adjusted under paragraph (f)(1) of this section, and record such deductions and transfers.

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§97.155   Banking.

(a) CAIR NOX allowances may be banked for future use or transfer in a compliance account or a general account in accordance with paragraph (b) of this section.

(b) Any CAIR NOX allowance that is held in a compliance account or a general account will remain in such account unless and until the CAIR NOX allowance is deducted or transferred under §97.142, §97.154, §97.156, or subpart GG or II of this part.

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§97.156   Account error.

The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any CAIR NOX Allowance Tracking System account. Within 10 business days of making such correction, the Administrator will notify the CAIR authorized account representative for the account.

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§97.157   Closing of general accounts.

(a) The CAIR authorized account representative of a general account may submit to the Administrator a request to close the account, which shall include a correctly submitted allowance transfer under §§97.160 and 97.161 for any CAIR NOX allowances in the account to one or more other CAIR NOX Allowance Tracking System accounts.

(b) If a general account has no allowance transfers in or out of the account for a 12-month period or longer and does not contain any CAIR NOX allowances, the Administrator may notify the CAIR authorized account representative for the account that the account will be closed following 20 business days after the notice is sent. The account will be closed after the 20-day period unless, before the end of the 20-day period, the Administrator receives a correctly submitted transfer of CAIR NOX allowances into the account under §§97.160 and 97.161 or a statement submitted by the CAIR authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.

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Subpart GG—CAIR NOX Allowance Transfers

§97.160   Submission of CAIR NOX allowance transfers.

A CAIR authorized account representative seeking recordation of a CAIR NOX allowance transfer shall submit the transfer to the Administrator. To be considered correctly submitted, the CAIR NOX allowance transfer shall include the following elements, in a format specified by the Administrator:

(a) The account numbers for both the transferor and transferee accounts;

(b) The serial number of each CAIR NOX allowance that is in the transferor account and is to be transferred; and

(c) The name and signature of the CAIR authorized account representative of the transferor account and the date signed.

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§97.161   EPA recordation.

(a) Within 5 business days (except as provided in paragraph (b) of this section) of receiving a CAIR NOX allowance transfer, the Administrator will record a CAIR NOX allowance transfer by moving each CAIR NOX allowance from the transferor account to the transferee account as specified by the request, provided that:

(1) The transfer is correctly submitted under §97.160; and

(2) The transferor account includes each CAIR NOX allowance identified by serial number in the transfer.

(b) A CAIR NOX allowance transfer that is submitted for recordation after the allowance transfer deadline for a control period and that includes any CAIR NOX allowances allocated for any control period before such allowance transfer deadline will not be recorded until after the Administrator completes the deductions under §97.154 for the control period immediately before such allowance transfer deadline.

(c) Where a CAIR NOX allowance transfer submitted for recordation fails to meet the requirements of paragraph (a) of this section, the Administrator will not record such transfer.

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§97.162   Notification.

(a) Notification of recordation. Within 5 business days of recordation of a CAIR NOX allowance transfer under §97.161, the Administrator will notify the CAIR authorized account representatives of both the transferor and transferee accounts.

(b) Notification of non-recordation. Within 10 business days of receipt of a CAIR NOX allowance transfer that fails to meet the requirements of §97.161(a), the Administrator will notify the CAIR authorized account representatives of both accounts subject to the transfer of:

(1) A decision not to record the transfer, and

(2) The reasons for such non-recordation.

(c) Nothing in this section shall preclude the submission of a CAIR NOX allowance transfer for recordation following notification of non-recordation.

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Subpart HH—Monitoring and Reporting

§97.170   General requirements.

The owners and operators, and to the extent applicable, the CAIR designated representative, of a CAIR NOX unit, shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this subpart and in subpart H of part 75 of this chapter. For purposes of complying with such requirements, the definitions in §97.102 and in §72.2 of this chapter shall apply, and the terms “affected unit,” “designated representative,” and “continuous emission monitoring system” or “CEMS”) in part 75 of this chapter shall be deemed to refer to the terms “CAIR NOX unit,“ “CAIR designated representative,” and “continuous emission monitoring system” (or “CEMS”) respectively, as defined in §97.102. The owner or operator of a unit that is not a CAIR NOX unit but that is monitored under §75.72(b)(2)(ii) of this chapter shall comply with the same monitoring, recordkeeping, and reporting requirements as a CAIR NOX unit.

(a) Requirements for installation, certification, and data accounting. The owner or operator of each CAIR NOX unit shall:

(1) Install all monitoring systems required under this subpart for monitoring NOX mass emissions and individual unit heat input (including all systems required to monitor NOX emission rate, NOX concentration, stack gas moisture content, stack gas flow rate, CO2 or O2 concentration, and fuel flow rate, as applicable, in accordance with (§§75.71 and 75.72 of this chapter);

(2) Successfully complete all certification tests required under §97.171 and meet all other requirements of this subpart and part 75 of this chapter applicable to the monitoring systems under paragraph (a)(1) of this section; and

(3) Record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section.

(b) Compliance deadlines. Except as provided in paragraph (e) of this section, the owner or operator shall meet the monitoring system certification and other requirements of paragraphs (a)(1) and (2) of this section on or before the following dates. The owner or operator shall record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section on and after the following dates.

(1) For the owner or operator of a CAIR NOX unit that commences commercial operation before July 1, 2007, by January 1, 2008.

(2) For the owner or operator of a CAIR NOX unit that commences commercial operation on or after July 1, 2007, by the later of the following dates:

(i) January 1, 2008; or

(ii) 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which the unit commences commercial operation.

(3) For the owner or operator of a CAIR NOX unit for which construction of a new stack or flue or installation of add-on NOX emission controls is completed after the applicable deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NOX emissions controls.

(4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under subpart II of this part, by the date specified in §97.184(b).

(5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a CAIR NOX opt-in unit under subpart II of this part, by the date on which the CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program as provided in §97.184(g).

(c) Reporting data. The owner or operator of a CAIR NOX unit that does not meet the applicable compliance date set forth in paragraph (b) of this section for any monitoring system under paragraph (a)(1) of this section shall, for each such monitoring system, determine, record, and report maximum potential (or, as appropriate, minimum potential) values for NOX concentration, NOX emission rate, stack gas flow rate, stack gas moisture content, fuel flow rate, and any other parameters required to determine NOX mass emissions and heat input in accordance with §75.31(b)(2) or (c)(3) of this chapter, section 2.4 of appendix D to part 75 of this chapter, or section 2.5 of appendix E to part 75 of this chapter, as applicable.

(d) Prohibitions. (1) No owner or operator of a CAIR NOX unit shall use any alternative monitoring system, alternative reference method, or any other alternative to any requirement of this subpart without having obtained prior written approval in accordance with §97.175.

(2) No owner or operator of a CAIR NOX unit shall operate the unit so as to discharge, or allow to be discharged, NOX emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this subpart and part 75 of this chapter.

(3) No owner or operator of a CAIR NOX unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording NOX mass emissions discharged into the atmosphere or heat input, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this subpart and part 75 of this chapter.

(4) No owner or operator of a CAIR NOX unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved monitoring system under this subpart, except under any one of the following circumstances:

(i) During the period that the unit is covered by an exemption under §97.105 that is in effect;

(ii) The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this subpart and part 75 of this chapter, by the Administrator for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

(iii) The CAIR designated representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with §97.171(d)(3)(i).

(e) Long-term cold storage. The owner or operator of a CAIR NOX unit is subject to the applicable provisions of part 75 of this chapter concerning units in long-term cold storage.

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§97.171   Initial certification and recertification procedures.

(a) The owner or operator of a CAIR NOX unit shall be exempt from the initial certification requirements of this section for a monitoring system under §97.170(a)(1) if the following conditions are met:

(1) The monitoring system has been previously certified in accordance with part 75 of this chapter; and

(2) The applicable quality-assurance and quality-control requirements of §75.21 of this chapter and appendix B, appendix D, and appendix E to part 75 of this chapter are fully met for the certified monitoring system described in paragraph (a)(1) of this section.

(b) The recertification provisions of this section shall apply to a monitoring system under §97.170(a)(1) exempt from initial certification requirements under paragraph (a) of this section.

(c) If the Administrator has previously approved a petition under §75.17(a) or (b) of this chapter for apportioning the NOX emission rate measured in a common stack or a petition under §75.66 of this chapter for an alternative to a requirement in §75.12 or §75.17 of this chapter, the CAIR designated representative shall resubmit the petition to the Administrator under §97.175 to determine whether the approval applies under the CAIR NOX Annual Trading Program.

(d) Except as provided in paragraph (a) of this section, the owner or operator of a CAIR NOX unit shall comply with the following initial certification and recertification procedures for a continuous monitoring system (i.e., a continuous emission monitoring system and an excepted monitoring system under appendices D and E to part 75 of this chapter) under §97.170(a)(1). The owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology under §75.19 of this chapter or that qualifies to use an alternative monitoring system under subpart E of part 75 of this chapter shall comply with the procedures in paragraph (e) or (f) of this section respectively.

(1) Requirements for initial certification. The owner or operator shall ensure that each continuous monitoring system under §97.170(a)(1) (including the automated data acquisition and handling system) successfully completes all of the initial certification testing required under §75.20 of this chapter by the applicable deadline in §97.170(b). In addition, whenever the owner or operator installs a monitoring system to meet the requirements of this subpart in a location where no such monitoring system was previously installed, initial certification in accordance with §75.20 of this chapter is required.

(2) Requirements for recertification. Whenever the owner or operator makes a replacement, modification, or change in any certified continuous emission monitoring system under §97.170(a)(1) that may significantly affect the ability of the system to accurately measure or record NOX mass emissions or heat input rate or to meet the quality-assurance and quality-control requirements of §75.21 of this chapter or appendix B to part 75 of this chapter, the owner or operator shall recertify the monitoring system in accordance with §75.20(b) of this chapter. Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify each continuous emission monitoring system whose accuracy is potentially affected by the change, in accordance with §75.20(b) of this chapter. Examples of changes to a continuous emission monitoring system that require recertification include replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site. Any fuel flowmeter system, and any excepted NOX monitoring system under appendix E to part 75 of this chapter, under §97.170(a)(1) are subject to the recertification requirements in §75.20(g)(6) of this chapter.

(3) Approval process for initial certification and recertification. Paragraphs (d)(3)(i) through (iv) of this section apply to both initial certification and recertification of a continuous monitoring system under §97.170(a)(1). For recertifications, replace the words “certification” and “initial certification” with the word “recertification”, replace the word “certified” with the word “recertified”, and follow the procedures in §§75.20(b)(5) and (g)(7) of this chapter in lieu of the procedures in paragraph (d)(3)(v) of this section.

(i) Notification of certification. The CAIR designated representative shall submit to the appropriate EPA Regional Office and the Administrator written notice of the dates of certification testing, in accordance with §97.173.

(ii) Certification application. The CAIR designated representative shall submit to the Administrator a certification application for each monitoring system. A complete certification application shall include the information specified in §75.63 of this chapter.

(iii) Provisional certification date. The provisional certification date for a monitoring system shall be determined in accordance with §75.20(a)(3) of this chapter. A provisionally certified monitoring system may be used under the CAIR NOX Annual Trading Program for a period not to exceed 120 days after receipt by the Administrator of the complete certification application for the monitoring system under paragraph (d)(3)(ii) of this section. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of part 75 of this chapter, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Administrator does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of the date of receipt of the complete certification application by the Administrator.

(iv) Certification application approval process. The Administrator will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under paragraph (d)(3)(ii) of this section. In the event the Administrator does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of part 75 of this chapter and is included in the certification application will be deemed certified for use under the CAIR NOX Annual Trading Program.

(A) Approval notice. If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of part 75 of this chapter, then the Administrator will issue a written notice of approval of the certification application within 120 days of receipt.

(B) Incomplete application notice. If the certification application is not complete, then the Administrator will issue a written notice of incompleteness that sets a reasonable date by which the CAIR designated representative must submit the additional information required to complete the certification application. If the CAIR designated representative does not comply with the notice of incompleteness by the specified date, then the Administrator may issue a notice of disapproval under paragraph (d)(3)(iv)(C) of this section. The 120-day review period shall not begin before receipt of a complete certification application.

(C) Disapproval notice. If the certification application shows that any monitoring system does not meet the performance requirements of part 75 of this chapter or if the certification application is incomplete and the requirement for disapproval under paragraph (d)(3)(iv)(B) of this section is met, then the Administrator will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the Administrator and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification (as defined under §75.20(a)(3) of this chapter). The owner or operator shall follow the procedures for loss of certification in paragraph (d)(3)(v) of this section for each monitoring system that is disapproved for initial certification.

(D) Audit decertification. The Administrator may issue a notice of disapproval of the certification status of a monitor in accordance with §97.172(b).

(v) Procedures for loss of certification. If the Administrator issues a notice of disapproval of a certification application under paragraph (d)(3)(iv)(C) of this section or a notice of disapproval of certification status under paragraph (d)(3)(iv)(D) of this section, then:

(A) The owner or operator shall substitute the following values, for each disapproved monitoring system, for each hour of unit operation during the period of invalid data specified under §75.20(a)(4)(iii), §75.20(g)(7), or §75.21(e) of this chapter and continuing until the applicable date and hour specified under §75.20(a)(5)(i) or (g)(7) of this chapter:

(1) For a disapproved NOX emission rate (i.e.,, NOX-diluent) system, the maximum potential NOX emission rate, as defined in §72.2 of this chapter.

(2) For a disapproved NOX pollutant concentration monitor and disapproved flow monitor, respectively, the maximum potential concentration of NOX and the maximum potential flow rate, as defined in sections 2.1.2.1 and 2.1.4.1 of appendix A to part 75 of this chapter.

(3) For a disapproved moisture monitoring system and disapproved diluent gas monitoring system, respectively, the minimum potential moisture percentage and either the maximum potential CO2 concentration or the minimum potential O2 concentration (as applicable), as defined in sections 2.1.5, 2.1.3.1, and 2.1.3.2 of appendix A to part 75 of this chapter.

(4) For a disapproved fuel flowmeter system, the maximum potential fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 of this chapter.

(5) For a disapproved excepted NOX monitoring system under appendix E to part 75 of this chapter, the fuel-specific maximum potential NOX emission rate, as defined in §72.2 of this chapter.

(B) The CAIR designated representative shall submit a notification of certification retest dates and a new certification application in accordance with paragraphs (d)(3)(i) and (ii) of this section.

(C) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Administrator's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.

(e) Initial certification and recertification procedures for units using the low mass emission excepted methodology under §75.19 of this chapter. The owner or operator of a unit qualified to use the low mass emissions (LME) excepted methodology under §75.19 of this chapter shall meet the applicable certification and recertification requirements in §§75.19(a)(2) and 75.20(h) of this chapter. If the owner or operator of such a unit elects to certify a fuel flowmeter system for heat input determination, the owner or operator shall also meet the certification and recertification requirements in §75.20(g) of this chapter.

(f) Certification/recertification procedures for alternative monitoring systems. The CAIR designated representative of each unit for which the owner or operator intends to use an alternative monitoring system approved by the Administrator under subpart E of part 75 of this chapter shall comply with the applicable notification and application procedures of §75.20(f) of this chapter.

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§97.172   Out of control periods.

(a) Whenever any monitoring system fails to meet the quality-assurance and quality-control requirements or data validation requirements of part 75 of this chapter, data shall be substituted using the applicable missing data procedures in subpart D or subpart H of, or appendix D or appendix E to, part 75 of this chapter.

(b) Audit decertification. Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any monitoring system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under §97.171 or the applicable provisions of part 75 of this chapter, both at the time of the initial certification or recertification application submission and at the time of the audit, the Administrator will issue a notice of disapproval of the certification status of such monitoring system. For the purposes of this paragraph, an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the Administrator. By issuing the notice of disapproval, the Administrator revokes prospectively the certification status of the monitoring system. The data measured and recorded by the monitoring system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the monitoring system. The owner or operator shall follow the applicable initial certification or recertification procedures in §97.171 for each disapproved monitoring system.

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§97.173   Notifications.

The CAIR designated representative for a CAIR NOX unit shall submit written notice to the Administrator in accordance with §75.61 of this chapter.

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§97.174   Recordkeeping and reporting.

(a) General provisions. The CAIR designated representative shall comply with all recordkeeping and reporting requirements in this section, the applicable recordkeeping and reporting requirements under §75.73 of this chapter, and the requirements of §97.110(e)(1).

(b) Monitoring plans. The owner or operator of a CAIR NOX unit shall comply with requirements of §75.73(c) and (e) of this chapter and, for a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under subpart II of this part, §§97.183 and 97.184(a).

(c) Certification applications. The CAIR designated representative shall submit an application to the Administrator within 45 days after completing all initial certification or recertification tests required under §97.171, including the information required under §75.63 of this chapter.

(d) Quarterly reports. The CAIR designated representative shall submit quarterly reports, as follows:

(1) The CAIR designated representative shall report the NOX mass emissions data and heat input data for the CAIR NOX unit, in an electronic quarterly report in a format prescribed by the Administrator, for each calendar quarter beginning with:

(i) For a unit that commences commercial operation before July 1, 2007, the calendar quarter covering January 1, 2008 through March 31, 2008;

(ii) For a unit that commences commercial operation on or after July 1, 2007, the calendar quarter corresponding to the earlier of the date of provisional certification or the applicable deadline for initial certification under §97.170(b), unless that quarter is the third or fourth quarter of 2007, in which case reporting shall commence in the quarter covering January 1, 2008 through March 31, 2008;

(iii) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, for a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under subpart II of this part, the calendar quarter corresponding to the date specified in §97.184(b); and

(iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section, for a CAIR NOX opt-in unit under subpart II of this part, the calendar quarter corresponding to the date on which the CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program as provided in §97.184(g).

(2) The CAIR designated representative shall submit each quarterly report to the Administrator within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in §75.73(f) of this chapter.

(3) For CAIR NOX units that are also subject to an Acid Rain emissions limitation or the CAIR NOX Ozone Season Trading Program, CAIR SO2 Trading Program, or Hg Budget Trading Program, quarterly reports shall include the applicable data and information required by subparts F through I of part 75 of this chapter as applicable, in addition to the NOX mass emission data, heat input data, and other information required by this subpart.

(e) Compliance certification. The CAIR designated representative shall submit to the Administrator a compliance certification (in a format prescribed by the Administrator) in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit's emissions are correctly and fully monitored. The certification shall state that:

(1) The monitoring data submitted were recorded in accordance with the applicable requirements of this subpart and part 75 of this chapter, including the quality assurance procedures and specifications; and

(2) For a unit with add-on NOX emission controls and for all hours where NOX data are substituted in accordance with §75.34(a)(1) of this chapter, the add-on emission controls were operating within the range of parameters listed in the quality assurance/quality control program under appendix B to part 75 of this chapter and the substitute data values do not systematically underestimate NOX emissions.

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§97.175   Petitions.

The CAIR designated representative of a CAIR NOX unit may submit a petition under §75.66 of this chapter to the Administrator requesting approval to apply an alternative to any requirement of this subpart. Application of an alternative to any requirement of this subpart is in accordance with this subpart only to the extent that the petition is approved in writing by the Administrator, in consultation with the permitting authority.

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Subpart II—CAIR NOX Opt-In Units

§97.180   Applicability.

A CAIR NOX opt-in unit must be a unit that:

(a) Is located in a State that submits, and for which the Administrator approves, a State implementation plan revision in accordance with §51.123(p)(3)(i), (ii), or (iii) of this chapter establishing procedures concerning CAIR opt-in units;

(b) Is not a CAIR NOX unit under §97.104 and is not covered by a retired unit exemption under §97.105 that is in effect;

(c) Is not covered by a retired unit exemption under §72.8 of this chapter that is in effect;

(d) Has or is required or qualified to have a title V operating permit or other federally enforceable permit; and

(e) Vents all of its emissions to a stack and can meet the monitoring, recordkeeping, and reporting requirements of subpart HH of this part.

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§97.181   General.

(a) Except as otherwise provided in §§97.101 through 97.104, §§97.106 through 97.108, and subparts BB and CC and subparts FF through HH of this part, a CAIR NOX opt-in unit shall be treated as a CAIR NOX unit for purposes of applying such sections and subparts of this part.

(b) Solely for purposes of applying, as provided in this subpart, the requirements of subpart HH of this part to a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under this subpart, such unit shall be treated as a CAIR NOX unit before issuance of a CAIR opt-in permit for such unit.

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§97.182   CAIR designated representative.

Any CAIR NOX opt-in unit, and any unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under this subpart, located at the same source as one or more CAIR NOX units shall have the same CAIR designated representative and alternate CAIR designated representative as such CAIR NOX units.

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§97.183   Applying for CAIR opt-in permit.

(a) Applying for initial CAIR opt-in permit. The CAIR designated representative of a unit meeting the requirements for a CAIR NOX opt-in unit in §97.180 may apply for an initial CAIR opt-in permit at any time, except as provided under §97.186(f) and (g), and, in order to apply, must submit the following:

(1) A complete CAIR permit application under §97.122;

(2) A certification, in a format specified by the permitting authority, that the unit:

(i) Is not a CAIR NOX unit under §97.104 and is not covered by a retired unit exemption under §97.105 that is in effect;

(ii) Is not covered by a retired unit exemption under §72.8 of this chapter that is in effect;

(iii) Vents all of its emissions to a stack; and

(iv) Has documented heat input for more than 876 hours during the 6 months immediately preceding submission of the CAIR permit application under §97.122;

(3) A monitoring plan in accordance with subpart HH of this part;

(4) A complete certificate of representation under §97.113 consistent with §97.182, if no CAIR designated representative has been previously designated for the source that includes the unit; and

(5) A statement, in a format specified by the permitting authority, whether the CAIR designated representative requests that the unit be allocated CAIR NOX allowances under §97.188(b) or §97.188(c) (subject to the conditions in §§97.184(h) and 97.186(g)), to the extent such allocation is provided in a State implementation plan revision submitted in accordance with §51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the Administrator. If allocation under §97.188(c) is requested, this statement shall include a statement that the owners and operators of the unit intend to repower the unit before January 1, 2015 and that they will provide, upon request, documentation demonstrating such intent.

(b) Duty to reapply. (1) The CAIR designated representative of a CAIR NOX opt-in unit shall submit a complete CAIR permit application under §97.122 to renew the CAIR opt-in unit permit in accordance with the permitting authority's regulations for title V operating permits, or the permitting authority's regulations for other federally enforceable permits if applicable, addressing permit renewal.

(2) Unless the permitting authority issues a notification of acceptance of withdrawal of the CAIR NOX opt-in unit from the CAIR NOX Annual Trading Program in accordance with §97.186 or the unit becomes a CAIR NOX unit under §97.104, the CAIR NOX opt-in unit shall remain subject to the requirements for a CAIR NOX opt-in unit, even if the CAIR designated representative for the CAIR NOX opt-in unit fails to submit a CAIR permit application that is required for renewal of the CAIR opt-in permit under paragraph (b)(1) of this section.

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§97.184   Opt-in process.

The permitting authority will issue or deny a CAIR opt-in permit for a unit for which an initial application for a CAIR opt-in permit under §97.183 is submitted in accordance with the following, to the extent provided in a State implementation plan revision submitted in accordance with §51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the Administrator:

(a) Interim review of monitoring plan. The permitting authority and the Administrator will determine, on an interim basis, the sufficiency of the monitoring plan accompanying the initial application for a CAIR opt-in permit under §97.183. A monitoring plan is sufficient, for purposes of interim review, if the plan appears to contain information demonstrating that the NOX emissions rate and heat input of the unit and all other applicable parameters are monitored and reported in accordance with subpart HH of this part. A determination of sufficiency shall not be construed as acceptance or approval of the monitoring plan.

(b) Monitoring and reporting. (1)(i) If the permitting authority and the Administrator determine that the monitoring plan is sufficient under paragraph (a) of this section, the owner or operator shall monitor and report the NOX emissions rate and the heat input of the unit and all other applicable parameters, in accordance with subpart HH of this part, starting on the date of certification of the appropriate monitoring systems under subpart HH of this part and continuing until a CAIR opt-in permit is denied under §97.184(f) or, if a CAIR opt-in permit is issued, the date and time when the unit is withdrawn from the CAIR NOX Annual Trading Program in accordance with §97.186.

(ii) The monitoring and reporting under paragraph (b)(1)(i) of this section shall include the entire control period immediately before the date on which the unit enters the CAIR NOX Annual Trading Program under §97.184(g), during which period monitoring system availability must not be less than 90 percent under subpart HH of this part and the unit must be in full compliance with any applicable State or Federal emissions or emissions-related requirements.

(2) To the extent the NOX emissions rate and the heat input of the unit are monitored and reported in accordance with subpart HH of this part for one or more control periods, in addition to the control period under paragraph (b)(1)(ii) of this section, during which control periods monitoring system availability is not less than 90 percent under subpart HH of this part and the unit is in full compliance with any applicable State or Federal emissions or emissions-related requirements and which control periods begin not more than 3 years before the unit enters the CAIR NOX Annual Trading Program under §97.184(g), such information shall be used as provided in paragraphs (c) and (d) of this section.

(c) Baseline heat input. The unit's baseline heat input shall equal:

(1) If the unit's NOX emissions rate and heat input are monitored and reported for only one control period, in accordance with paragraph (b)(1) of this section, the unit's total heat input (in mmBtu) for the control period; or

(2) If the unit's NOX emissions rate and heat input are monitored and reported for more than one control period, in accordance with paragraphs (b)(1) and (2) of this section, the average of the amounts of the unit's total heat input (in mmBtu) for the control periods under paragraphs (b)(1)(ii) and (2) of this section.

(d) Baseline NOX emission rate. The unit's baseline NOX emission rate shall equal:

(1) If the unit's NOX emissions rate and heat input are monitored and reported for only one control period, in accordance with paragraph (b)(1) of this section, the unit's NOX emissions rate (in lb/mmBtu) for the control period;

(2) If the unit's NOX emissions rate and heat input are monitored and reported for more than one control period, in accordance with paragraphs (b)(1) and (2) of this section, and the unit does not have add-on NOX emission controls during any such control periods, the average of the amounts of the unit's NOX emissions rate (in lb/mmBtu) for the control periods under paragraphs (b)(1)(ii) and (2) of this section; or

(3) If the unit's NOX emissions rate and heat input are monitored and reported for more than one control period, in accordance with paragraphs (b)(1) and (2) of this section, and the unit has add-on NOX emission controls during any such control periods, the average of the amounts of the unit's NOX emissions rate (in lb/mmBtu) for such control periods during which the unit has add-on NOX emission controls.

(e) Issuance of CAIR opt-in permit. After calculating the baseline heat input and the baseline NOX emissions rate for the unit under paragraphs (c) and (d) of this section and if the permitting authority determines that the CAIR designated representative shows that the unit meets the requirements for a CAIR NOX opt-in unit in §97.180 and meets the elements certified in §97.183(a)(2), the permitting authority will issue a CAIR opt-in permit. The permitting authority will provide a copy of the CAIR opt-in permit to the Administrator, who will then establish a compliance account for the source that includes the CAIR NOX opt-in unit unless the source already has a compliance account.

(f) Issuance of denial of CAIR opt-in permit. Notwithstanding paragraphs (a) through (e) of this section, if at any time before issuance of a CAIR opt-in permit for the unit, the permitting authority determines that the CAIR designated representative fails to show that the unit meets the requirements for a CAIR NOX opt-in unit in §97.180 or meets the elements certified in §97.183(a)(2), the permitting authority will issue a denial of a CAIR opt-in permit for the unit.

(g) Date of entry into CAIR NOX Annual Trading Program. A unit for which an initial CAIR opt-in permit is issued by the permitting authority shall become a CAIR NOX opt-in unit, and a CAIR NOX unit, as of the later of January 1, 2009 or January 1 of the first control period during which such CAIR opt-in permit is issued.

(h) Repowered CAIR NOX opt-in unit. (1) If CAIR designated representative requests, and the permitting authority issues a CAIR opt-in permit providing for, allocation to a CAIR NOX opt-in unit of CAIR NOX allowances under §97.188(c) and such unit is repowered after its date of entry into the CAIR NOX Annual Trading Program under paragraph (g) of this section, the repowered unit shall be treated as a CAIR NOX opt-in unit replacing the original CAIR NOX opt-in unit, as of the date of start-up of the repowered unit's combustion chamber.

(2) Notwithstanding paragraphs (c) and (d) of this section, as of the date of start-up under paragraph (h)(1) of this section, the repowered unit shall be deemed to have the same date of commencement of operation, date of commencement of commercial operation, baseline heat input, and baseline NOX emission rate as the original CAIR NOX opt-in unit, and the original CAIR NOX opt-in unit shall no longer be treated as a CAIR NOX opt-in unit or a CAIR NOX unit.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

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§97.185   CAIR opt-in permit contents.

(a) Each CAIR opt-in permit will contain:

(1) All elements required for a complete CAIR permit application under §97.122;

(2) The certification in §97.183(a)(2);

(3) The unit's baseline heat input under §97.184(c);

(4) The unit's baseline NOX emission rate under §97.184(d);

(5) A statement whether the unit is to be allocated CAIR NOX allowances under §97.188(b) or §97.188(c) (subject to the conditions in §§97.184(h) and 97.186(g));

(6) A statement that the unit may withdraw from the CAIR NOX Annual Trading Program only in accordance with §97.186; and

(7) A statement that the unit is subject to, and the owners and operators of the unit must comply with, the requirements of §97.187.

(b) Each CAIR opt-in permit is deemed to incorporate automatically the definitions of terms under §97.102 and, upon recordation by the Administrator under subpart FF or GG of this part or this subpart, every allocation, transfer, or deduction of CAIR NOX allowances to or from the compliance account of the source that includes a CAIR NOX opt-in unit covered by the CAIR opt-in permit.

(c) The CAIR opt-in permit shall be included, in a format specified by the permitting authority, in the CAIR permit for the source where the CAIR NOX opt-in unit is located and in a title V operating permit or other federally enforceable permit for the source.

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§97.186   Withdrawal from CAIR NOX Annual Trading Program.

Except as provided under paragraph (g) of this section, a CAIR NOX opt-in unit may withdraw from the CAIR NOX Annual Trading Program, but only if the permitting authority issues a notification to the CAIR designated representative of the CAIR NOX opt-in unit of the acceptance of the withdrawal of the CAIR NOX opt-in unit in accordance with paragraph (d) of this section.

(a) Requesting withdrawal. In order to withdraw a CAIR NOX opt-in unit from the CAIR NOX Annual Trading Program, the CAIR designated representative of the CAIR NOX opt-in unit shall submit to the permitting authority a request to withdraw effective as of midnight of December 31 of a specified calendar year, which date must be at least 4 years after December 31 of the year of entry into the CAIR NOX Annual Trading Program under §97.184(g). The request must be submitted no later than 90 days before the requested effective date of withdrawal.

(b) Conditions for withdrawal. Before a CAIR NOX opt-in unit covered by a request under paragraph (a) of this section may withdraw from the CAIR NOX Annual Trading Program and the CAIR opt-in permit may be terminated under paragraph (e) of this section, the following conditions must be met:

(1) For the control period ending on the date on which the withdrawal is to be effective, the source that includes the CAIR NOX opt-in unit must meet the requirement to hold CAIR NOX allowances under §97.106(c) and cannot have any excess emissions.

(2) After the requirement for withdrawal under paragraph (b)(1) of this section is met, the Administrator will deduct from the compliance account of the source that includes the CAIR NOX opt-in unit CAIR NOX allowances equal in amount to and allocated for the same or a prior control period as any CAIR NOX allowances allocated to the CAIR NOX opt-in unit under §97.188 for any control period for which the withdrawal is to be effective. If there are no remaining CAIR NOX units at the source, the Administrator will close the compliance account, and the owners and operators of the CAIR NOX opt-in unit may submit a CAIR NOX allowance transfer for any remaining CAIR NOX allowances to another CAIR NOX Allowance Tracking System in accordance with subpart GG of this part.

(c) Notification. (1) After the requirements for withdrawal under paragraphs (a) and (b) of this section are met (including deduction of the full amount of CAIR NOX allowances required), the permitting authority will issue a notification to the CAIR designated representative of the CAIR NOX opt-in unit of the acceptance of the withdrawal of the CAIR NOX opt-in unit as of midnight on December 31 of the calendar year for which the withdrawal was requested.

(2) If the requirements for withdrawal under paragraphs (a) and (b) of this section are not met, the permitting authority will issue a notification to the CAIR designated representative of the CAIR NOX opt-in unit that the CAIR NOX opt-in unit's request to withdraw is denied. Such CAIR NOX opt-in unit shall continue to be a CAIR NOX opt-in unit.

(d) Permit amendment. After the permitting authority issues a notification under paragraph (c)(1) of this section that the requirements for withdrawal have been met, the permitting authority will revise the CAIR permit covering the CAIR NOX opt-in unit to terminate the CAIR opt-in permit for such unit as of the effective date specified under paragraph (c)(1) of this section. The unit shall continue to be a CAIR NOX opt-in unit until the effective date of the termination and shall comply with all requirements under the CAIR NOX Annual Trading Program concerning any control periods for which the unit is a CAIR NOX opt-in unit, even if such requirements arise or must be complied with after the withdrawal takes effect.

(e) Reapplication upon failure to meet conditions of withdrawal. If the permitting authority denies the CAIR NOX opt-in unit's request to withdraw, the CAIR designated representative may submit another request to withdraw in accordance with paragraphs (a) and (b) of this section.

(f) Ability to reapply to the CAIR NOX Annual Trading Program. Once a CAIR NOX opt-in unit withdraws from the CAIR NOX Annual Trading Program and its CAIR opt-in permit is terminated under this section, the CAIR designated representative may not submit another application for a CAIR opt-in permit under §97.183 for such CAIR NOX opt-in unit before the date that is 4 years after the date on which the withdrawal became effective. Such new application for a CAIR opt-in permit will be treated as an initial application for a CAIR opt-in permit under §97.184.

(g) Inability to withdraw. Notwithstanding paragraphs (a) through (f) of this section, a CAIR NOX opt-in unit shall not be eligible to withdraw from the CAIR NOX Annual Trading Program if the CAIR designated representative of the CAIR NOX opt-in unit requests, and the permitting authority issues a CAIR NOX opt-in permit providing for, allocation to the CAIR NOX opt-in unit of CAIR NOX allowances under §97.188(c).

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§97.187   Change in regulatory status.

(a) Notification. If a CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104, then the CAIR designated representative shall notify in writing the permitting authority and the Administrator of such change in the CAIR NOX opt-in unit's regulatory status, within 30 days of such change.

(b) Permitting authority's and Administrator's actions. (1) If a CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104, the permitting authority will revise the CAIR NOX opt-in unit's CAIR opt-in permit to meet the requirements of a CAIR permit under §97.123, and remove the CAIR opt-in permit provisions, as of the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104.

(2)(i) The Administrator will deduct from the compliance account of the source that includes the CAIR NOX opt-in unit that becomes a CAIR NOX unit under §97.104, CAIR NOX allowances equal in amount to and allocated for the same or a prior control period as:

(A) Any CAIR NOX allowances allocated to the CAIR NOX opt-in unit under §97.188 for any control period after the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104; and

(B) If the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104 is not December 31, the CAIR NOX allowances allocated to the CAIR NOX opt-in unit under §97.188 for the control period that includes the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104, multiplied by the ratio of the number of days, in the control period, starting with the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104 divided by the total number of days in the control period and rounded to the nearest whole allowance as appropriate.

(ii) The CAIR designated representative shall ensure that the compliance account of the source that includes the CAIR NOX opt-in unit that becomes a CAIR NOX unit under §97.104 contains the CAIR NOX allowances necessary for completion of the deduction under paragraph (b)(2)(i) of this section.

(3)(i) For every control period after the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104, the CAIR NOX opt-in unit will be allocated CAIR NOX allowances under §97.142.

(ii) If the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104 is not December 31, the following amount of CAIR NOX allowances will be allocated to the CAIR NOX opt-in unit (as a CAIR NOX unit) under (97.142 for the control period that includes the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104:

(A) The amount of CAIR NOX allowances otherwise allocated to the CAIR NOX opt-in unit (as a CAIR NOX unit) under §97.142 for the control period multiplied by;

(B) The ratio of the number of days, in the control period, starting with the date on which the CAIR NOX opt-in unit becomes a CAIR NOX unit under §97.104, divided by the total number of days in the control period; and

(C) Rounded to the nearest whole allowance as appropriate.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006]

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§97.188   CAIR NOX allowance allocations to CAIR NOX opt-in units.

(a) Timing requirements. (1) When the CAIR opt-in permit is issued under §97.184(e), the permitting authority will allocate CAIR NOX allowances to the CAIR NOX opt-in unit, and submit to the Administrator the allocation for the control period in which a CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program under §97.184(g), in accordance with paragraph (b) or (c) of this section.

(2) By no later than October 31 of the control period after the control period in which a CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program under §97.184(g) and October 31 of each year thereafter, the permitting authority will allocate CAIR NOX allowances to the CAIR NOX opt-in unit, and submit to the Administrator the allocation for the control period that includes such submission deadline and in which the unit is a CAIR NOX opt-in unit, in accordance with paragraph (b) or (c) of this section.

(b) Calculation of allocation. For each control period for which a CAIR NOX opt-in unit is to be allocated CAIR NOX allowances, the permitting authority will allocate in accordance with the following procedures, if provided in a State implementation plan revision submitted in accordance with §51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the Administrator:

(1) The heat input (in mmBtu) used for calculating the CAIR NOX allowance allocation will be the lesser of:

(i) The CAIR NOX opt-in unit's baseline heat input determined under §97.184(c); or

(ii) The CAIR NOX opt-in unit's heat input, as determined in accordance with subpart HH of this part, for the immediately prior control period, except when the allocation is being calculated for the control period in which the CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program under §97.184(g).

(2) The NOX emission rate (in lb/mmBtu) used for calculating CAIR NOX allowance allocations will be the lesser of:

(i) The CAIR NOX opt-in unit's baseline NOX emissions rate (in lb/mmBtu) determined under §97.184(d) and multiplied by 70 percent; or

(ii) The most stringent State or Federal NOX emissions limitation applicable to the CAIR NOX opt-in unit at any time during the control period for which CAIR NOX allowances are to be allocated.

(3) The permitting authority will allocate CAIR NOX allowances to the CAIR NOX opt-in unit in an amount equaling the heat input under paragraph (b)(1) of this section, multiplied by the NOX emission rate under paragraph (b)(2) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole allowance as appropriate.

(c) Notwithstanding paragraph (b) of this section and if the CAIR designated representative requests, and the permitting authority issues a CAIR opt-in permit (based on a demonstration of the intent to repower stated under §97.183(a)(5)) providing for, allocation to a CAIR NOX opt-in unit of CAIR NOX allowances under this paragraph (subject to the conditions in §§97.184(h) and 97.186(g)), the permitting authority will allocate to the CAIR NOX opt-in unit as follows, if provided in a State implementation plan revision submitted in accordance with (51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the Administrator:

(1) For each control period in 2009 through 2014 for which the CAIR NOX opt-in unit is to be allocated CAIR NOX allowances,

(i) The heat input (in mmBtu) used for calculating CAIR NOX allowance allocations will be determined as described in paragraph (b)(1) of this section.

(ii) The NOX emission rate (in lb/mmBtu) used for calculating CAIR NOX allowance allocations will be the lesser of:

(A) The CAIR NOX opt-in unit's baseline NOX emissions rate (in lb/mmBtu) determined under §97.184(d); or

(B) The most stringent State or Federal NOX emissions limitation applicable to the CAIR NOX opt-in unit at any time during the control period in which the CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program under §97.184(g).

(iii) The permitting authority will allocate CAIR NOX allowances to the CAIR NOX opt-in unit in an amount equaling the heat input under paragraph (c)(1)(i) of this section, multiplied by the NOX emission rate under paragraph (c)(1)(ii) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole allowance as appropriate.

(2) For each control period in 2015 and thereafter for which the CAIR NOX opt-in unit is to be allocated CAIR NOX allowances,

(i) The heat input (in mmBtu) used for calculating the CAIR NOX allowance allocations will be determined as described in paragraph (b)(1) of this section.

(ii) The NOX emission rate (in lb/mmBtu) used for calculating the CAIR NOX allowance allocation will be the lesser of:

(A) 0.15 lb/mmBtu;

(B) The CAIR NOX opt-in unit's baseline NOX emissions rate (in lb/mmBtu) determined under §97.184(d); or

(C) The most stringent State or Federal NOX emissions limitation applicable to the CAIR NOX opt-in unit at any time during the control period for which CAIR NOX allowances are to be allocated.

(iii) The permitting authority will allocate CAIR NOX allowances to the CAIR NOX opt-in unit in an amount equaling the heat input under paragraph (c)(2)(i) of this section, multiplied by the NOX emission rate under paragraph (c)(2)(ii) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole allowance as appropriate.

(d) Recordation. If provided in a State implementation plan revision submitted in accordance with §51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the Administrator:

(1) The Administrator will record, in the compliance account of the source that includes the CAIR NOX opt-in unit, the CAIR NOX allowances allocated by the permitting authority to the CAIR NOX opt-in unit under paragraph (a)(1) of this section.

(2) By December 1 of the control period in which a CAIR NOX opt-in unit enters the CAIR NOX Annual Trading Program under §97.184(g) and December 1 of each year thereafter, the Administrator will record, in the compliance account of the source that includes the CAIR NOX opt-in unit, the CAIR NOX allowances allocated by the permitting authority to the CAIR NOX opt-in unit under paragraph (a)(2) of this section.

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Appendix A to Subpart II of Part 97—States With Approved State Implementation Plan Revisions Concerning CAIR NOX Opt-In Units

1. The following States have State Implementation Plan revisions under §51.123(p)(3) of this chapter approved by the Administrator and establishing procedures providing for CAIR NOX opt-in units under subpart II of this part and allocation of CAIR NOX allowances to such units under §97.188(b):

Indiana

Michigan

North Carolina

Ohio

South Carolina

Tennessee

2. The following States have State Implementation Plan revisions under §51.123(p)(3) of this chapter approved by the Administrator and establishing procedures providing for CAIR NOX opt-in units under subpart II of this part and allocation of CAIR NOX allowances to such units under §97.188(c):

Indiana

Michigan

Ohio

North Carolina

South Carolina

Tennessee

[65 FR 2727, Jan. 18, 2000, as amended at 72 FR 46394, Aug. 20, 2007; 72 FR 56920, Oct. 5, 2007; 72 FR 57215, Oct. 9, 2007; 72 FR 59487, Oct. 22, 2007; 72 FR 72262, Dec. 20, 2007; 73 FR 6040, Feb. 1, 2008]

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Subpart AAA—CAIR SO2 Trading Program General Provisions

§97.201   Purpose.

This subpart and subparts BBB through III set forth the general provisions and the designated representative, permitting, allowance, monitoring, and opt-in provisions for the Federal Clean Air Interstate Rule (CAIR) SO2 Trading Program, under section 110 of the Clean Air Act and §52.36 of this chapter, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

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§97.202   Definitions.

The terms used in this subpart and subparts BBB through III shall have the meanings set forth in this section as follows:

Account number means the identification number given by the Administrator to each CAIR SO2 Allowance Tracking System account.

Acid Rain emissions limitation means a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program.

Acid Rain Program means a multi-state sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the Administrator under title IV of the CAA and parts 72 through 78 of this chapter.

Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.

Allocate or allocation means, with regard to CAIR SO2 allowances issued under the Acid Rain Program, the determination by the Administrator of the amount of such CAIR SO2 allowances to be initially credited to a CAIR SO2 unit or other entity and, with regard to CAIR SO2 allowances issued under §97.288 or provisions of a State implementation plan that are approved under §51.124(o)(1) or (2) or (r) of this chapter, the determination by a permitting authority of the amount of such CAIR SO2 allowances to be initially credited to a CAIR SO2 unit or other entity.

Allowance transfer deadline means, for a control period, midnight of March 1 (if it is a business day), or midnight of the first business day thereafter (if March 1 is not a business day), immediately following the control period and is the deadline by which a CAIR SO2 allowance transfer must be submitted for recordation in a CAIR SO2 source's compliance account in order to be used to meet the source's CAIR SO2 emissions limitation for such control period in accordance with §97.254.

Alternate CAIR designated representative means, for a CAIR SO2 source and each CAIR SO2 unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with subparts BBB and III of this part, to act on behalf of the CAIR designated representative in matters pertaining to the CAIR SO2 Trading Program. If the CAIR SO2 source is also a CAIR NOX source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR NOX Annual Trading Program. If the CAIR SO2 source is also a CAIR NOX Ozone Season source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR NOX Ozone Season Trading Program. If the CAIR SO2 source is also subject to the Acid Rain Program, then this natural person shall be the same person as the alternate designated representative under the Acid Rain Program. If the CAIR SO2 source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the alternate Hg designated representative under the Hg Budget Trading Program.

Automated data acquisition and handling system or DAHS means that component of the continuous emission monitoring system, or other emissions monitoring system approved for use under subpart HHH of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by subpart HHH of this part.

Biomass means—

(1) Any organic material grown for the purpose of being converted to energy;

(2) Any organic byproduct of agriculture that can be converted into energy; or

(3) Any material that can be converted into energy and is nonmerchantable for other purposes, that is segregated from other nonmerchantable material, and that is;

(i) A forest-related organic resource, including mill residues, precommercial thinnings, slash, brush, or byproduct from conversion of trees to merchantable material; or

(ii) A wood material, including pallets, crates, dunnage, manufacturing and construction materials (other than pressure-treated, chemically-treated, or painted wood products), and landscape or right-of-way tree trimmings.

Boiler means an enclosed fossil- or other-fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

Bottoming-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.

CAIR authorized account representative means, with regard to a general account, a responsible natural person who is authorized, in accordance with subparts BBB, FFF, and III of this part, to transfer and otherwise dispose of CAIR SO2 allowances held in the general account and, with regard to a compliance account, the CAIR designated representative of the source.

CAIR designated representative means, for a CAIR SO2 source and each CAIR SO2 unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with subparts BBB and III of this part, to represent and legally bind each owner and operator in matters pertaining to the CAIR SO2 Trading Program. If the CAIR SO2 source is also a CAIR NOX source, then this natural person shall be the same person as the CAIR designated representative under the CAIR NOX Annual Trading Program. If the CAIR SO2 source is also a CAIR NOX Ozone Season source, then this natural person shall be the same person as the CAIR designated representative under the CAIR NOX Ozone Season Trading Program. If the CAIR SO2 source is also subject to the Acid Rain Program, then this natural person shall be the same person as the designated representative under the Acid Rain Program. If the CAIR SO2 source is also subject to the Hg Budget Trading Program, then this natural person shall be the same person as the Hg designated representative under the Hg Budget Trading Program.

CAIR NOX Annual Trading Program means a multi-state nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with subparts AA through II of this part and §51.123(p) and 52.35 of this chapter or approved and administered by the Administrator in accordance with subparts AA through II of part 96 of this chapter and §51.123(o)(1) or (2) of this chapter, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

CAIR NOX Ozone Season source means a source that is subject to the CAIR NOX Ozone Season Trading Program.

CAIR NOX Ozone Season Trading Program means a multi-state nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with subparts AAAA through IIII of this part and §51.123(ee) and 52.35 of this chapter or approved and administered by the Administrator in accordance with subparts AAAA through IIII of part 96 and §51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), or (dd) of this chapter, as a means of mitigating interstate transport of ozone and nitrogen oxides.

CAIR NOX source means a source that is subject to the CAIR NOX Annual Trading Program.

CAIR permit means the legally binding and federally enforceable written document, or portion of such document, issued by the permitting authority under subpart CCC of this part, including any permit revisions, specifying the CAIR SO2 Trading Program requirements applicable to a CAIR SO2 source, to each CAIR SO2 unit at the source, and to the owners and operators and the CAIR designated representative of the source and each such unit.

CAIR SO2 allowance means a limited authorization issued by the Administrator under the Acid Rain Program, by a permitting authority under §97.288, or by a permitting authority under provisions of a State implementation plan that are approved under §51.124(o)(1) or (2) or (r) of this chapter, to emit sulfur dioxide during the control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the CAIR SO2 Trading Program as follows:

(1) For one CAIR SO2 allowance allocated for a control period in a year before 2010, one ton of sulfur dioxide, except as provided in §97.254(b);

(2) For one CAIR SO2 allowance allocated for a control period in 2010 through 2014, 0.50 ton of sulfur dioxide, except as provided in §97.254(b); and

(3) For one CAIR SO2 allowance allocated for a control period in 2015 or later, 0.35 ton of sulfur dioxide, except as provided in §97.254(b).

(4) An authorization to emit sulfur dioxide that is not issued under the Acid Rain Program, §97.288, or provisions of a State implementation plan that are approved under §51.124(o)(1) or (2) or (r) of this chapter shall not be a CAIR SO2 allowance.

CAIR SO2 allowance deduction or deduct CAIR SO2 allowances means the permanent withdrawal of CAIR SO2 allowances by the Administrator from a compliance account, e.g., in order to account for a specified number of tons of total sulfur dioxide emissions from all CAIR SO2 units at a CAIR SO2 source for a control period, determined in accordance with subpart HHH of this part, or to account for excess emissions.

CAIR SO2 Allowance Tracking System means the system by which the Administrator records allocations, deductions, and transfers of CAIR SO2 allowances under the CAIR SO2 Trading Program. This is the same system as the Allowance Tracking System under §72.2 of this chapter by which the Administrator records allocations, deduction, and transfers of Acid Rain SO2 allowances under the Acid Rain Program.

CAIR SO2 Allowance Tracking System account means an account in the CAIR SO2 Allowance Tracking System established by the Administrator for purposes of recording the allocation, holding, transferring, or deducting of CAIR SO2 allowances. Such allowances will be allocated, held, deducted, or transferred only as whole allowances.

CAIR SO2 allowances held or hold CAIR SO2 allowances means the CAIR SO2 allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with subparts FFF, GGG, and III of this part or part 73 of this chapter, in a CAIR SO2 Allowance Tracking System account.

CAIR SO2 emissions limitation means, for a CAIR SO2 source, the tonnage equivalent, in SO2 emissions in a control period, of the CAIR SO2 allowances available for deduction for the source under §97.254(a) and (b) for the control period.

CAIR SO2 source means a source that includes one or more CAIR SO2 units.

CAIR SO2 Trading Program means a multi-state sulfur dioxide air pollution control and emission reduction program established by the Administrator in accordance with subparts AAA through III of this part and §§51.124(r) and 52.36 of this chapter or approved and administered by the Administrator in accordance with subparts AAA through III of part 96 of this chapter and §51.124(o) (1) or (2) of this chapter, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

CAIR SO2 unit means a unit that is subject to the CAIR SO2 Trading Program under §97.204 and, except for purposes of §97.205, a CAIR SO2 opt-in unit under subpart III of this part.

Certifying official means:

(1) For a corporation, a president, secretary, treasurer, or vice-president or the corporation in charge of a principal business function or any other person who performs similar policy or decision-making functions for the corporation;

(2) For a partnership or sole proprietorship, a general partner or the proprietor respectively; or

(3) For a local government entity or State, Federal, or other public agency, a principal executive officer or ranking elected official.

Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.

Coal means any solid fuel classified as anthracite, bituminous, subbituminous, or lignite.

Coal-derived fuel means any fuel (whether in a solid, liquid, or gaseous state) produced by the mechanical, thermal, or chemical processing of coal.

Coal-fired means combusting any amount of coal or coal-derived fuel, alone, or in combination with any amount of any other fuel.

Cogeneration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine:

(1) Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(2) Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity—

(i) For a topping-cycle cogeneration unit,

(A) Useful thermal energy not less than 5 percent of total energy output; and

(B) Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

(ii) For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input;

(3) Provided that the total energy input under paragraphs (2)(i)(B) and (2)(ii) of this definition shall equal the unit's total energy input from all fuel except biomass if the unit is a boiler.

Combustion turbine means:

(1) An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

(2) If the enclosed device under paragraph (1) of this definition is combined cycle, any associated duct burner, heat recovery steam generator, and steam turbine.

Commence commercial operation means, with regard to a unit:

(1) To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation, except as provided in §97.205 and §97.284(h).

(i) For a unit that is a CAIR SO2 unit under §97.204 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

(ii) For a unit that is a CAIR SO2 unit under §97.204 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in paragraph (1) or (2) of this definition as appropriate.

(2) Notwithstanding paragraph (1) of this definition and except as provided in §97.205, for a unit that is not a CAIR SO2 unit under §97.204 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition, the unit's date for commencement of commercial operation shall be the date on which the unit becomes a CAIR SO2 unit under §97.204.

(i) For a unit with a date for commencement of commercial operation as defined in paragraph (2) of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

(ii) For a unit with a date for commencement of commercial operation as defined in paragraph (2) of this definition and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in paragraph (1) or (2) of this definition as appropriate.

Commence operation means:

(1) To have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber, except as provided in §97.284(h).

(2) For a unit that undergoes a physical change (other than replacement of the unit by a unit at the same source) after the date the unit commences operation as defined in paragraph (1) of this definition, such date shall remain the date of commencement of operation of the unit, which shall continue to be treated as the same unit.

(3) For a unit that is replaced by a unit at the same source (e.g., repowered) after the date the unit commences operation as defined in paragraph (1) of this definition, such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in paragraph (1), (2), or (3) of this definition as appropriate, except as provided in §97.284(h).

Common stack means a single flue through which emissions from 2 or more units are exhausted.

Compliance account means a CAIR SO2 Allowance Tracking System account, established by the Administrator for a CAIR SO2 source subject to an Acid Rain emissions limitations under §73.31(a) or (b) of this chapter or for any other CAIR SO2 source under subpart FFF or III of this part, in which any CAIR SO2 allowance allocations for the CAIR SO2 units at the source are initially recorded and in which are held any CAIR SO2 allowances available for use for a control period in order to meet the source's CAIR SO2 emissions limitation in accordance with §97.254.

Continuous emission monitoring system or CEMS means the equipment required under subpart HHH of this part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of sulfur dioxide emissions, stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with part 75 of this chapter. The following systems are the principal types of continuous emission monitoring systems required under subpart HHH of this part:

(1) A flow monitoring system, consisting of a stack flow rate monitor and an automated data acquisition and handling system and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour (scfh);

(2) A sulfur dioxide monitoring system, consisting of a SO2 pollutant concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of SO2 emissions, in parts per million (ppm);

(3) A moisture monitoring system, as defined in §75.11(b)(2) of this chapter and providing a permanent, continuous record of the stack gas moisture content, in percent H2O;

(4) A carbon dioxide monitoring system, consisting of a CO2 pollutant concentration monitor (or an oxygen monitor plus suitable mathematical equations from which the CO2 concentration is derived) and an automated data acquisition and handling system and providing a permanent, continuous record of CO2 emissions, in percent CO2; and

(5) An oxygen monitoring system, consisting of an O2 concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of O2 in percent O2.

Control period means the period beginning January 1 of a calendar year, except as provided in §97.206(c)(2), and ending on December 31 of the same year, inclusive.

Emissions means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the CAIR designated representative and as determined by the Administrator in accordance with subpart HHH of this part.

Excess emissions means any ton, or portion of a ton, of sulfur dioxide emitted by the CAIR SO2 units at a CAIR SO2 source during a control period that exceeds the CAIR SO2 emissions limitation for the source, provided that any portion of a ton of excess emissions shall be treated as one ton of excess emissions.

Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

Fossil-fuel-fired means, with regard to a unit, combusting any amount of fossil fuel in any calendar year.

General account means a CAIR SO2 Allowance Tracking System account, established under subpart FFF of this part, that is not a compliance account.

Generator means a device that produces electricity.

Heat input means, with regard to a specified period of time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the Administrator by the CAIR designated representative and determined by the Administrator in accordance with subpart HHH of this part and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

Heat input rate means the amount of heat input (in mmBtu) divided by unit operating time (in hr) or, with regard to a specific fuel, the amount of heat input attributed to the fuel (in mmBtu) divided by the unit operating time (in hr) during which the unit combusts the fuel.

Hg Budget Trading Program means a multi-state Hg air pollution control and emission reduction program approved and administered by the Administrator in accordance subpart HHHH of part 60 of this chapter and §60.24(h)(6), or established by the Administrator under section 111 of the Clean Air Act, as a means of reducing national Hg emissions.

Life-of-the-unit, firm power contractual arrangement means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy generated by any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:

(1) For the life of the unit;

(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or

(3) For a period no less than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.

Maximum design heat input means the maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

Monitoring system means any monitoring system that meets the requirements of subpart HHH of this part, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under part 75 of this chapter.

Most stringent State or Federal SO2 emissions limitation means, with regard to a unit, the lowest SO2 emissions limitation (in terms of lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.

Nameplate capacity means, starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

Operator means any person who operates, controls, or supervises a CAIR SO2 unit or a CAIR SO2 source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

Owner means any of the following persons:

(1) With regard to a CAIR SO2 source or a CAIR SO2 unit at a source, respectively:

(i) Any holder of any portion of the legal or equitable title in a CAIR SO2 unit at the source or the CAIR SO2 unit;

(ii) Any holder of a leasehold interest in a CAIR SO2 unit at the source or the CAIR SO2 unit; or

(iii) Any purchaser of power from a CAIR SO2 unit at the source or the CAIR SO2 unit under a life-of-the-unit, firm power contractual arrangement; provided that, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based (either directly or indirectly) on the revenues or income from such CAIR SO2 unit; or

(2) With regard to any general account, any person who has an ownership interest with respect to the CAIR SO2 allowances held in the general account and who is subject to the binding agreement for the CAIR authorized account representative to represent the person's ownership interest with respect to CAIR SO2 allowances.

Permitting authority means the State air pollution control agency, local agency, other State agency, or other agency authorized by the Administrator to issue or revise permits to meet the requirements of the CAIR SO2 Trading Program or, if no such agency has been so authorized, the Administrator.

Potential electrical output capacity means 33 percent of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

Receive or receipt of means, when referring to the permitting authority or the Administrator, to come into possession of a document, information, or correspondence (whether sent in hard copy or by authorized electronic transmission), as indicated in an official log, or by a notation made on the document, information, or correspondence, by the permitting authority or the Administrator in the regular course of business.

Recordation, record, or recorded means, with regard to CAIR SO2 allowances, the movement of CAIR SO2 allowances by the Administrator into or between CAIR SO2 Allowance Tracking System accounts, for purposes of allocation, transfer, or deduction.

Reference method means any direct test method of sampling and analyzing for an air pollutant as specified in §75.22 of this chapter.

Replacement, replace, or replaced means, with regard to a unit, the demolishing of a unit, or the permanent shutdown and permanent disabling of a unit, and the construction of another unit (the replacement unit) to be used instead of the demolished or shutdown unit (the replaced unit).

Repowered means, with regard to a unit, replacement of a coal-fired boiler with one of the following coal-fired technologies at the same source as the coal-fired boiler:

(1) Atmospheric or pressurized fluidized bed combustion;

(2) Integrated gasification combined cycle;

(3) Magnetohydrodynamics;

(4) Direct and indirect coal-fired turbines;

(5) Integrated gasification fuel cells; or

(6) As determined by the Administrator in consultation with the Secretary of Energy, a derivative of one or more of the technologies under paragraphs (1) through (5) of this definition and any other coal-fired technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of January 1, 2005.

Sequential use of energy means:

(1) For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process; or

(2) For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

Serial number means, for a CAIR SO2 allowance, the unique identification number assigned to each CAIR SO2 allowance by the Administrator.

Solid waste incineration unit means a stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine that is a “solid waste incineration unit” as defined in section 129(g)(1) of the Clean Air Act.

Source means all buildings, structures, or installations located in one or more contiguous or adjacent properties under common control of the same person or persons. For purposes of section 502(c) of the Clean Air Act, a “source,” including a “source” with multiple units, shall be considered a single “facility.”

State means one of the States or the District of Columbia that is subject to the CAIR SO2 Trading Program pursuant to §52.35 of this chapter.

Submit or serve means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

(1) In person;

(2) By United States Postal Service; or

(3) By other means of dispatch or transmission and delivery. Compliance with any “submission” or “service” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

Title V operating permit means a permit issued under title V of the Clean Air Act and part 70 or part 71 of this chapter.

Title V operating permit regulations means the regulations that the Administrator has approved or issued as meeting the requirements of title V of the Clean Air Act and part 70 or 71 of this chapter.

Ton means 2,000 pounds. For the purpose of determining compliance with the CAIR SO2 emissions limitation, total tons of sulfur dioxide emissions for a control period shall be calculated as the sum of all recorded hourly emissions (or the mass equivalent of the recorded hourly emission rates) in accordance with subpart HHH of this part, but with any remaining fraction of a ton equal to or greater than 0.50 tons deemed to equal one ton and any remaining fraction of a ton less than 0.50 tons deemed to equal zero tons.

Topping-cycle cogeneration unit means a cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

Total energy input means, with regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself. Each form of energy supplied shall be measured by the lower heating value of that form of energy calculated as follows:

LHV = HHV−10.55(W + 9H)

Where:

LHV = lower heating value of fuel in Btu/lb,

HHV = higher heating value of fuel in Btu/lb,

W = Weight % of moisture in fuel, and

H = Weight % of hydrogen in fuel.

Total energy output means, with regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit.

Unit means a stationary, fossil-fuel-fired boiler or combustion turbine or other stationary, fossil-fuel-fired combustion device. Unit operating day means a calendar day in which a unit combusts any fuel.

Unit operating hour or hour of unit operation means an hour in which a unit combusts any fuel.

Useful power means, with regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

Useful thermal energy means, with regard to a cogeneration unit, thermal energy that is:

(1) Made available to an industrial or commercial process (not a power production process), excluding any heat contained in condensate return or makeup water;

(2) Used in a heating application (e.g., space heating or domestic hot water heating); or

(3) Used in a space cooling application (i.e., thermal energy used by an absorption chiller).

Utility power distribution system means the portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

[65 FR 2727, Jan. 18, 2000, as amended at 71 FR 74795, Dec. 13, 2006; 72 FR 59207, Oct. 19, 2007]

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§97.203   Measurements, abbreviations, and acronyms.

Measurements, abbreviations, and acronyms used in this subpart and subparts BBB through III are defined as follows:

Btu—British thermal unit.

CO2—carbon dioxide.

H2O—water.

Hg—mercury.

hr—hour.

kW—kilowatt electrical.

kWh—kilowatt hour.

lb—pound.

mmBtu—million Btu.

MWe—megawatt electrical.

MWh—megawatt hour.

NOX—nitrogen oxides.

O2—oxygen.

ppm—parts per million.

scfh—standard cubic feet per hour.

SO2—sulfur dioxide.

yr—year.

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§97.204   Applicability.

(a) Except as provided in paragraph (b) of this section:

(1) The following units in a State shall be CAIR SO2 units, and any source that includes one or more such units shall be a CAIR SO2 source, subject to the requirements of this subpart and subparts BBB through HHH of this part: any stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe producing electricity for sale.

(2) If a stationary boiler or stationary combustion turbine that, under paragraph (a)(1) of this section, is not a CAIR SO2 unit begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become a CAIR SO2 unit as provided in paragraph (a)(1) of this section on the first date on which it both combusts fossil fuel and serves such generator.

(b) The units in a State that meet the requirements set forth in paragraph (b)(1)(i), (b)(2)(i), or (b)(2)(ii) of this section shall not be CAIR SO2 units:

(1)(i) Any unit that is a CAIR SO2 unit under paragraph (a)(1) or (2) of this section:

(A) Qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

(B) Not serving at any time, since the later of November 15, 1990 or the start-up of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

(ii) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of paragraphs (b)(1)(i) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become a CAIR SO2 unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of paragraph (b)(1)(i)(B) of this section.

(2)(i) Any unit that is a CAIR SO2 unit under paragraph (a)(1) or (2) of this section commencing operation before January 1, 1985:

(A) Qualifying as a solid waste incineration unit; and

(B) With an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(ii) Any unit that is a CAIR SO2 unit under paragraph (a)(1) or (2) of this section commencing operation on or after January 1, 1985:

(A) Qualifying as a solid waste incineration unit; and

(B) With an average annual fuel consumption of non-fossil fuel for the first 3 calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any 3 consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(iii) If a unit qualifies as a solid waste incineration unit and meets the requirements of paragraph (b)(2)(i) or (ii) of this section for at least 3 consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become a CAIR SO2 unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first 3 consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more.

(c) A certifying official of an owner or operator of any unit may petition the Administrator at any time for a determination concerning the applicability, under paragraphs (a) and (b) of this section, of the CAIR SO2 Trading Program to the unit.

(1) Petition content. The petition shall be in writing and include the identification of the unit and the relevant facts about the unit. The petition and any other documents provided to the Administrator in connection with the petition shall include the following certification statement, signed by the certifying official: “I am authorized to make this submission on behalf of the owners and operators of the unit for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(2) Submission. The petition and any other documents provided in connection with the petition shall be submitted to the Director of the Clean Air Markets Division (or its successor), U.S. Environmental Protection Agency, who will act on the petition as the Administrator's duly authorized representative.

(3) Response. The Administrator will issue a written response to the petition and may request supplemental information relevant to such petition. The Administrator's determination concerning the applicability, under paragraphs (a) and (b) of this section, of the CAIR SO2 Trading Program to the unit shall be binding on the permitting authority unless the petition or other information or documents provided in connection with the petition are found to have contained significant, relevant errors or omissions.

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§97.205   Retired unit exemption.

(a)(1) Any CAIR SO2 unit that is permanently retired and is not a CAIR SO2 opt-in unit under subpart III of this part shall be exempt from the CAIR SO2 Trading Program, except for the provisions of this section, §§97.202, 97.203, 97.204, 97.206(c)(4) through (7), 97.207, 97.208, and subparts BBB, FFF, and GGG of this part.

(2) The exemption under paragraph (a)(1) of this section shall become effective the day on which the CAIR SO2 unit is permanently retired. Within 30 days of the unit's permanent retirement, the CAIR designated representative shall submit a statement to the permitting authority otherwise responsible for administering any CAIR permit for the unit and shall submit a copy of the statement to the Administrator. The statement shall state, in a format prescribed by the permitting authority, that the unit was permanently retired on a specific date and will comply with the requirements of paragraph (b) of this section.

(3) After receipt of the statement under paragraph (a)(2) of this section, the permitting authority will amend any permit under subpart CCC of this part covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraphs (a)(1) and (b) of this section.

(b) Special provisions. (1) A unit exempt under paragraph (a) of this section shall not emit any sulfur dioxide, starting on the date that the exemption takes effect.

(2) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (a) of this section shall retain, at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-year period for keeping records may be extended for cause, at any time before the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

(3) The owners and operators and, to the extent applicable, the CAIR designated representative of a unit exempt under paragraph (a) of this section shall comply with the requirements of the CAIR SO2 Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.

(4) A unit exempt under paragraph (a) of this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the CAIR designated representative of the source submits a complete CAIR permit application under §97.222 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2010 or the date on which the unit resumes operation.

(5) On the earlier of the following dates, a unit exempt under paragraph (a) of this section shall lose its exemption:

(i) The date on which the CAIR designated representative submits a CAIR permit application for the unit under paragraph (b)(4) of this section;

(ii) The date on which the CAIR designated representative is required under paragraph (b)(4) of this section to submit a CAIR permit application for the unit; or

(iii) The date on which the unit resumes operation, if the CAIR designated representative is not required to submit a CAIR permit application for the unit.

(6) For the purpose of applying monitoring, reporting, and recordkeeping requirements under subpart HHH of this part, a unit that loses its exemption under paragraph (a) of this section shall be treated as a unit that commences commercial operation on the first date on which the unit resumes operation.

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§97.206   Standard requirements.

(a) Permit requirements. (1) The CAIR designated representative of each CAIR SO2 source required to have a title V operating permit and each CAIR SO2 unit required to have a title V operating permit at the source shall:

(i) Submit to the permitting authority a complete CAIR permit application under §97.222 in accordance with the deadlines specified in §97.221; and

(ii) Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a CAIR permit application and issue or deny a CAIR permit.

(2) The owners and operators of each CAIR SO2 source required to have a title V operating permit and each CAIR SO2 unit required to have a title V operating permit at the source shall have a CAIR permit issued by the permitting authority under subpart CCC of this part for the source and operate the source and the unit in compliance with such CAIR permit.

(3) Except as provided in subpart III of this part, the owners and operators of a CAIR SO2 source that is not otherwise required to have a title V operating permit and each CAIR SO2 unit that is not otherwise required to have a title V operating permit are not required to submit a CAIR permit application, and to have a CAIR permit, under subpart CCC of this part for such CAIR SO2 source and such CAIR SO2 unit.

(b) Monitoring, reporting, and recordkeeping requirements. (1) The owners and operators, and the CAIR designated representative, of each CAIR SO2 source and each CAIR SO2 unit at the source shall comply with the monitoring, reporting, and recordkeeping requirements of subpart HHH of this part.

(2) The emissions measurements recorded and reported in accordance with subpart HHH of this part shall be used to determine compliance by each CAIR SO2 source with the CAIR SO2 emissions limitation under paragraph (c) of this section.

(c) Sulfur dioxide emission requirements. (1) As of the allowance transfer deadline for a control period, the owners and operators of each CAIR SO2 source and each CAIR SO2 unit at the source shall hold, in the source's compliance account, a tonnage equivalent in CAIR SO2 allowances available for compliance deductions for the control period, as determined in accordance with §97.254(a) and (b), not less than the tons of total sulfur dioxide emissions for the control period from all CAIR SO2 units at the source, as determined in accordance with subpart HHH of this part.

(2) A CAIR SO2 unit shall be subject to the requirements under paragraph (c)(1) of this section for the control period starting on the later of January 1, 2010 or the deadline for meeting the unit(s monitor certification requirements under §97.270(b)(1),(2), or (5) and for each control period thereafter.

(3) A CAIR SO2 allowance shall not be deducted, for compliance with the requirements under paragraph (c)(1) of this section, for a control period in a calendar year before the year for which the CAIR SO2 allowance was allocated.

(4) CAIR SO2 allowances shall be held in, deducted from, or transferred into or among CAIR SO2 Allowance Tracking System accounts in accordance with subparts FFF, GGG, and III of this part.

(5) A CAIR SO2 allowance is a limited authorization to emit sulfur dioxide in accordance with the CAIR SO2 Trading Program. No provision of the CAIR SO2 Trading Program, the CAIR permit application, the CAIR permit, or an exemption under §97.205 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.

(6) A CAIR SO2 allowance does not constitute a property right.

(7) Upon recordation by the Administrator under subpart FFF, GGG, or III of this part, every allocation, transfer, or deduction of a CAIR SO2 allowance to or from a CAIR SO2 source's compliance account is incorporated automatically in any CAIR permit of the source.

(d) Excess emissions requirements. If a CAIR SO2 source emits sulfur dioxide during any control period in excess of the CAIR SO2 emissions limitation, then:

(1) The owners and operators of the source and each CAIR SO2 unit at the source shall surrender the CAIR SO2 allowances required for deduction under §97.254(d)(1) and pay any fine, penalty, or assessment or comply with any other remedy imposed, for the same violations, under the Clean Air Act or applicable State law; and

(2) Each ton of such excess emissions and each day of such control period shall constitute a separate violation of this subpart, the Clean Air Act, and applicable State law.

(e) Recordkeeping and reporting requirements. (1) Unless otherwise provided, the owners and operators of the CAIR SO2 source and each CAIR SO2 unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time before the end of 5 years, in writing by the permitting authority or the Administrator.

(i) The certificate of representation under §97.213 for the CAIR designated representative for the source and each CAIR SO2 unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation; provided that the certificate and documents shall be retained on site at the source beyond such 5-year period until such documents are superseded because of the submission of a new certificate of representation under §97.213 changing the CAIR designated representative.

(ii) All emissions monitoring information, in accordance with subpart HHH of this part, provided that to the extent that subpart HHH of this part provides for a 3-year period for recordkeeping, the 3-year period shall apply.

(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the CAIR SO2 Trading Program.

(iv) Copies of all documents used to complete a CAIR permit application and any other submission under the CAIR SO2 Trading Program or to demonstrate compliance with the requirements of the CAIR SO2 Trading Program.

(2) The CAIR designated representative of a CAIR SO2 source and each CAIR SO2 unit at the source shall submit the reports required under the CAIR SO2 Trading Program, including those under subpart HHH of this part.

(f) Liability. (1) Each CAIR SO2 source and each CAIR SO2 unit shall meet the requirements of the CAIR SO2 Trading Program.

(2) Any provision of the CAIR SO2 Trading Program that applies to a CAIR SO2 source or the CAIR designated representative of a CAIR SO2 source shall also apply to the owners and operators of such source and of the CAIR SO2 units at the source.

(3) Any provision of the CAIR SO2 Trading Program that applies to a CAIR SO2 unit or the CAIR designated representative of a CAIR SO2 unit shall also apply to the owners and operators of such unit.

(g) Effect on other authorities. No provision of the CAIR SO2 Trading Program, a CAIR permit application, a CAIR permit, or an exemption under §97.205 shall be construed as exempting or excluding the owners and operators, and the CAIR designated representative, of a CAIR SO2 source or CAIR SO2 unit from compliance with any other provision of the applicable, approved State implementation plan, a federally enforceable permit, or the Clean Air Act.

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§97.207   Computation of time.

(a) Unless otherwise stated, any time period scheduled, under the CAIR SO2 Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.

(b) Unless otherwise stated, any time period scheduled, under the CAIR SO2 Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.

(c) Unless otherwise stated, if the final day of any time period, under the CAIR SO2 Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.

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§97.208   Appeal procedures.

The appeal procedures for decisions of the Administrator under the CAIR SO2 Trading Program are set forth in part 78 of this chapter.

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Subpart BBB—CAIR Designated Representative for CAIR SO2 Sources

§97.210   Authorization and responsibilities of CAIR designated representative.

(a) Except as provided under §97.211, each CAIR SO2 source, including all CAIR SO2 units at the source, shall have one and only one CAIR designated representative, with regard to all matters under the CAIR SO2 Trading Program concerning the source or any CAIR SO2 unit at the source.

(b) The CAIR designated representative of the CAIR SO2 source shall be selected by an agreement binding on the owners and operators of the source and all CAIR SO2 units at the source and shall act in accordance with the certification statement in §97.213(a)(4)(iv).

(c) Upon receipt by the Administrator of a complete certificate of representation under §97.213, the CAIR designated representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CAIR SO2 source represented and each CAIR SO2 unit at the source in all matters pertaining to the CAIR SO2 Trading Program, notwithstanding any agreement between the CAIR designated representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CAIR designated representative by the permitting authority, the Administrator, or a court regarding the source or unit.

(d) No CAIR permit will be issued, no emissions data reports will be accepted, and no CAIR SO2 Allowance Tracking System account will be established for a CAIR SO2 unit at a source, until the Administrator has received a complete certificate of representation under §97.213 for a CAIR designated representative of the source and the CAIR SO2 units at the source.

(e)(1) Each submission under the CAIR SO2 Trading Program shall be submitted, signed, and certified by the CAIR designated representative for each CAIR SO2 source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CAIR designated representative: “I am authorized to make this submission on behalf of the owners and operators of the source or units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(2) The permitting authority and the Administrator will accept or act on a submission made on behalf of owner or operators of a CAIR SO2 source or a CAIR SO2 unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.

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§97.211   Alternate CAIR designated representative.

(a) A certificate of representation under §97.213 may designate one and only one alternate CAIR designated representative, who may act on behalf of the CAIR designated representative. The agreement by which the alternate CAIR designated representative is selected shall include a procedure for authorizing the alternate CAIR designated representative to act in lieu of the CAIR designated representative.

(b) Upon receipt by the Administrator of a complete certificate of representation under §97.213, any representation, action, inaction, or submission by the alternate CAIR designated representative shall be deemed to be a representation, action, inaction, or submission by the CAIR designated representative.

(c) Except in this section and §§97.202, 97.210(a) and (d), 97.212, 97.213, 97.215, 97.251 and 97.282, whenever the term “CAIR designated representative” is used in subparts AAA through III of this part, the term shall be construed to include the CAIR designated representative or any alternate CAIR designated representative.

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§97.212   Changing CAIR designated representative and alternate CAIR designated representative; changes in owners and operators.

(a) Changing CAIR designated representative. The CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under §97.213. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new CAIR designated representative and the owners and operators of the CAIR SO2 source and the CAIR SO2 units at the source.

(b) Changing alternate CAIR designated representative. The alternate CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under §97.213. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new alternate CAIR designated representative and the owners and operators of the CAIR SO2 source and the CAIR SO2 units at the source.

(c) Changes in owners and operators. (1) In the event an owner or operator of a CAIR SO2 source or a CAIR SO2 unit is not included in the list of owners and operators in the certificate of representation under §97.213, such owner or operator shall be deemed to be subject to and bound by the certificate of representation, the representations, actions, inactions, and submissions of the CAIR designated representative and any alternate CAIR designated representative of the source or unit, and the decisions and orders of the permitting authority, the Administrator, or a court, as if the owner or operator were included in such list.

(2) Within 30 days following any change in the owners and operators of a CAIR SO2 source or a CAIR SO2 unit, including the addition of a new owner or operator, the CAIR designated representative or any alternate CAIR designated representative shall submit a revision to the certificate of representation under §97.213 amending the list of owners and operators to include the change.

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§97.213   Certificate of representation.

(a) A complete certificate of representation for a CAIR designated representative or an alternate CAIR designated representative shall include the following elements in a format prescribed by the Administrator:

(1) Identification of the CAIR SO2 source, and each CAIR SO2 unit at the source, for which the certificate of representation is submitted, including identification and nameplate capacity of each generator served by each such unit.

(2) The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the CAIR designated representative and any alternate CAIR designated representative.

(3) A list of the owners and operators of the CAIR SO2 source and of each CAIR SO2 unit at the source.

(4) The following certification statements by the CAIR designated representative and any alternate CAIR designated representative—

(i) “I certify that I was selected as the CAIR designated representative or alternate CAIR designated representative, as applicable, by an agreement binding on the owners and operators of the source and each CAIR SO2 unit at the source.”

(ii) “I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR SO2 Trading Program on behalf of the owners and operators of the source and of each CAIR SO2 unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions.”

(iii) “I certify that the owners and operators of the source and of each CAIR SO2 unit at the source shall be bound by any order issued to me by the Administrator, the permitting authority, or a court regarding the source or unit.”

(iv) “Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, a CAIR SO2 unit, or where a utility or industrial customer purchases power from a CAIR SO2 unit under a life-of-the-unit, firm power contractual arrangement, I certify that: I have given a written notice of my selection as the ‘CAIR designated representative’ or ‘alternate CAIR designated representative’, as applicable, and of the agreement by which I was selected to each owner and operator of the source and of each CAIR SO2 unit at the source; and CAIR SO2 allowances and proceeds of transactions involving CAIR SO2 allowances will be deemed to be held or distributed in proportion to each holder's legal, equitable, leasehold, or contractual reservation or entitlement, except that, if such multiple holders have expressly provided for a different distribution of CAIR SO2 allowances by contract, CAIR SO2 allowances and proceeds of transactions involving CAIR SO2 allowances will be deemed to be held or distributed in accordance with the contract.”

(5) The signature of the CAIR designated representative and any alternate CAIR designated representative and the dates signed.

(b) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the certificate of representation shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

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§97.214   Objections concerning CAIR designated representative.

(a) Once a complete certificate of representation under §97.213 has been submitted and received, the permitting authority and the Administrator will rely on the certificate of representation unless and until a superseding complete certificate of representation under §97.213 is received by the Administrator.

(b) Except as provided in §97.212(a) or (b), no objection or other communication submitted to the permitting authority or the Administrator concerning the authorization, or any representation, action, inaction, or submission, of the CAIR designated representative shall affect any representation, action, inaction, or submission of the CAIR designated representative or the finality of any decision or order by the permitting authority or the Administrator under the CAIR SO2 Trading Program.

(c) Neither the permitting authority nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CAIR designated representative, including private legal disputes concerning the proceeds of CAIR SO2 allowance transfers.

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§97.215   Delegation by CAIR designated representative and alternate CAIR designated representative.

(a) A CAIR designated representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under this part.

(b) An alternate CAIR designated representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under this part.

(c) In order to delegate authority to make an electronic submission to the Administrator in accordance with paragraph (a) or (b) of this section, the CAIR designated representative or alternate CAIR designated representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

(1) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR designated representative or alternate CAIR designated representative;

(2) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of each such natural person (referred to as an “agent”);

(3) For each such natural person, a list of the type or types of electronic submissions under paragraph (a) or (b) of this section for which authority is delegated to him or her; and

(4) The following certification statements by such CAIR designated representative or alternate CAIR designated representative:

(i) “I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR designated representative or alternate CAIR designated representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 40 CFR 97.215(d) shall be deemed to be an electronic submission by me.”

(ii) “Until this notice of delegation is superseded by another notice of delegation under 40 CFR 97.215(d), I agree to maintain an e-mail account and to notify the Administrator immediately of any change in my e-mail address unless all delegation of authority by me under 40 CFR 97.215 is terminated.”.

(d) A notice of delegation submitted under paragraph (c) of this section shall be effective, with regard to the CAIR designated representative or alternate CAIR designated representative identified in such notice, upon receipt of such notice by the Administrator and until receipt by the Administrator of a superseding notice of delegation submitted by such CAIR designated representative or alternate CAIR designated representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

(e) Any electronic submission covered by the certification in paragraph (c)(4)(i) of this section and made in accordance with a notice of delegation effective under paragraph (d) of this section shall be deemed to be an electronic submission by the CAIR designated representative or alternate CAIR designated representative submitting such notice of delegation.

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Subpart CCC—Permits

§97.220   General CAIR SO2 Trading Program permit requirements.

(a) For each CAIR SO2 source required to have a title V operating permit or required, under subpart III of this part, to have a title V operating permit or other federally enforceable permit, such permit shall include a CAIR permit administered by the permitting authority for the title V operating permit or the federally enforceable permit as applicable. The CAIR portion of the title V permit or other federally enforceable permit as applicable shall be administered in accordance with the permitting authority's title V operating permits regulations promulgated under part 70 or 71 of this chapter or the permitting authority's regulations for other federally enforceable permits as applicable, except as provided otherwise by §97.205, this subpart, and subpart III of this part.

(b) Each CAIR permit shall contain, with regard to the CAIR SO2 source and the CAIR SO2 units at the source covered by the CAIR permit, all applicable CAIR SO2 Trading Program, CAIR NOX Annual Trading Program, and CAIR NOX Ozone Season Trading Program requirements and shall be a complete and separable portion of the title V operating permit or other federally enforceable permit under paragraph (a) of this section.

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§97.221   Submission of CAIR permit applications.

(a) Duty to apply. The CAIR designated representative of any CAIR SO2 source required to have a title V operating permit shall submit to the permitting authority a complete CAIR permit application under §97.222 for the source covering each CAIR SO2 unit at the source at least 18 months (or such lesser time provided by the permitting authority) before the later of January 1, 2010 or the date on which the CAIR SO2 unit commences commercial operation, except as provided in §97.283(a).

(b) Duty to reapply. For a CAIR SO2 source required to have a title V operating permit, the CAIR designated representative shall submit a complete CAIR permit application under §97.222 for the source covering each CAIR SO2 unit at the source to renew the CAIR permit in accordance with the permitting authority's title V operating permits regulations addressing permit renewal, except as provided in §97.283(b).

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§97.222   Information requirements for CAIR permit applications.

A complete CAIR permit application shall include the following elements concerning the CAIR SO2 source for which the application is submitted, in a format prescribed by the permitting authority:

(a) Identification of the CAIR SO2 source;

(b) Identification of each CAIR SO2 unit at the CAIR SO2 source; and

(c) The standard requirements under §97.206.

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§97.223   CAIR permit contents and term.

(a) Each CAIR permit will contain, in a format prescribed by the permitting authority, all lements required for a complete CAIR permit application under §97.222.

(b) Each CAIR permit is deemed to incorporate automatically the definitions of terms under §97.202 and, upon recordation by the Administrator under subpart FFF, GGG, or III of this part, every allocation, transfer, or deduction of a CAIR SO2 allowance to or from the compliance account of the CAIR SO2 source covered by the permit.

(c) The term of the CAIR permit will be set by the permitting authority, as necessary to facilitate coordination of the renewal of the CAIR permit with issuance, revision, or renewal of the CAIR SO2 source's title V operating permit or other federally enforceable permit as applicable.

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§97.224   CAIR permit revisions.

Except as provided in §97.223(b), the permitting authority will revise the CAIR permit, as necessary, in accordance with the permitting authority's title V operating permits regulations or the permitting authority's regulations for other federally enforceable permits as applicable addressing permit revisions.

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Subparts DDD-EEE [Reserved]

Subpart FFF—CAIR SO2 Allowance Tracking System

§97.250   [Reserved]

§97.251   Establishment of accounts.

(a) Compliance accounts. Except as provided in §97.284(e), upon receipt of a complete certificate of representation under §97.213, the Administrator will establish a compliance account for the CAIR SO2 source for which the certificate of representation was submitted, unless the source already has a compliance account.

(b) General accounts—(1) Application for general account. (i) Any person may apply to open a general account for the purpose of holding and transferring CAIR SO2 allowances. An application for a general account may designate one and only one CAIR authorized account representative and one and only one alternate CAIR authorized account representative who may act on behalf of the CAIR authorized account representative. The agreement by which the alternate CAIR authorized account representative is selected shall include a procedure for authorizing the alternate CAIR authorized account representative to act in lieu of the CAIR authorized account representative.

(ii) A complete application for a general account shall be submitted to the Administrator and shall include the following elements in a format prescribed by the Administrator:

(A) Name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the CAIR authorized account representative and any alternate CAIR authorized account representative;

(B) Organization name and type of organization, if applicable;

(C) A list of all persons subject to a binding agreement for the CAIR authorized account representative and any alternate CAIR authorized account representative to represent their ownership interest with respect to the CAIR SO2 allowances held in the general account;

(D) The following certification statement by the CAIR authorized account representative and any alternate CAIR authorized account representative: “I certify that I was selected as the CAIR authorized account representative or the alternate CAIR authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CAIR SO2 allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR SO2 Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account.”

(E) The signature of the CAIR authorized account representative and any alternate CAIR authorized account representative and the dates signed.

(iii) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

(2) Authorization of CAIR authorized account representative and alternate CAIR authorized account representative. (i) Upon receipt by the Administrator of a complete application for a general account under paragraph (b)(1) of this section:

(A) The Administrator will establish a general account for the person or persons for whom the application is submitted.

(B) The CAIR authorized account representative and any alternate CAIR authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CAIR SO2 allowances held in the general account in all matters pertaining to the CAIR SO2 Trading Program, notwithstanding any agreement between the CAIR authorized account representative or any alternate CAIR authorized account representative and such person. Any such person shall be bound by any order or decision issued to the CAIR authorized account representative or any alternate CAIR authorized account representative by the Administrator or a court regarding the general account.

(C) Any representation, action, inaction, or submission by any alternate CAIR authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CAIR authorized account representative.

(ii) Each submission concerning the general account shall be submitted, signed, and certified by the CAIR authorized account representative or any alternate CAIR authorized account representative for the persons having an ownership interest with respect to CAIR SO2 allowances held in the general account. Each such submission shall include the following certification statement by the CAIR authorized account representative or any alternate CAIR authorized account representative: “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CAIR SO2 allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”

(iii) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with paragraph (b)(2)(ii) of this section.

(3) Changing CAIR authorized account representative and alternate CAIR authorized account representative; changes in persons with ownership interest. (i) The CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR SO2 allowances in the general account.

(ii) The alternate CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new alternate CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR SO2 allowances in the general account.

(iii)(A) In the event a person having an ownership interest with respect to CAIR SO2 allowances in the general account is not included in the list of such persons in the application for a general account, such person shall be deemed to be subject to and bound by the application for a general account, the representation, actions, inactions, and submissions of the CAIR authorized account representative and any alternate CAIR authorized account representative of the account, and the decisions and orders of the Administrator or a court, as if the person were included in such list.

(B) Within 30 days following any change in the persons having an ownership interest with respect to CAIR SO2 allowances in the general account, including the addition of a new person, the CAIR authorized account representative or any alternate CAIR authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CAIR SO2 allowances in the general account to include the change.

(4) Objections concerning CAIR authorized account representative and alternate CAIR authorized account representative. (i) Once a complete application for a general account under paragraph (b)(1) of this section has been submitted and received, the Administrator will rely on the application unless and until a superseding complete application for a general account under paragraph (b)(1) of this section is received by the Administrator.

(ii) Except as provided in paragraph (b)(3)(i) or (ii) of this section, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account shall affect any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative or the finality of any decision or order by the Administrator under the CAIR SO2 Trading Program.

(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account, including private legal disputes concerning the proceeds of CAIR SO2 allowance transfers.

(5) Delegation by CAIR authorized account representative and alternate CAIR authorized account representative. (i) A CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under subparts FFF and GGG of this part.

(ii) An alternate CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under subparts FFF and GGG of this part.

(iii) In order to delegate authority to make an electronic submission to the Administrator in accordance with paragraph (b)(5)(i) or (ii) of this section, the CAIR authorized account representative or alternate CAIR authorized account representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

(A) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR authorized account representative or alternate CAIR authorized account representative;

(B) The name, address, e-mail address, telephone number, and, facsimile transmission number (if any) of each such natural person (referred to as an “agent”);

(C) For each such natural person, a list of the type or types of electronic submissions under paragraph (b)(5)(i) or (ii) of this section for which authority is delegated to him or her;

(D) The following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: “I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR authorized account representative or alternate CAIR authorized representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 40 CFR 97.251(b)(5)(iv) shall be deemed to be an electronic submission by me.”; and

(E) The following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: “Until this notice of delegation is superseded by another notice of delegation under 40 CFR 97.251 (b)(5)(iv), I agree to maintain an e-mail account and to notify the Administrator immediately of any change in my e-mail address, unless all delegation of authority by me under 40 CFR 97.251 (b)(5) is terminated.”.

(iv) A notice of delegation submitted under paragraph (b)(5)(iii) of this section shall be effective, with regard to the CAIR authorized account representative or alternate CAIR authorized account representative identified in such notice, upon receipt of such notice by the Administrator and until receipt by the Administrator of a superseding notice of delegation submitted by such CAIR authorized account representative or alternate CAIR authorized account representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new agent, or eliminate entirely any delegation of authority.

(v) Any electronic submission covered by the certification in paragraph (b)(5)(iii)(D) of this section and made in accordance with a notice of delegation effective under paragraph (b)(5)(iv) of this section shall be deemed to be an electronic submission by the CAIR designated representative or alternate CAIR designated representative submitting such notice of delegation.

(c) Account identification. The Administrator will assign a unique identifying number to each account established under paragraph (a) or (b) of this section.

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§97.252   Responsibilities of CAIR authorized account representative.

Following the establishment of a CAIR SO2 Allowance Tracking System account, all submissions to the Administrator pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of CAIR SO2 allowances in the account, shall be made only by the CAIR authorized account representative for the account.

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§97.253   Recordation of CAIR SO2 allowances.

(a)(1) After a compliance account is established under §97.251(a) or §73.31(a) or (b) of this chapter, the Administrator will record in the compliance account any CAIR SO2 allowance allocated to any CAIR SO2 unit at the source for each of the 30 years starting the later of 2010 or the year in which the compliance account is established and any CAIR SO2 allowance allocated for each of the 30 years starting the later of 2010 or the year in which the compliance account is established and transferred to the source in accordance with subpart GGG of this part or subpart D of part 73 of this chapter.

(2) In 2011 and each year thereafter, after Administrator has completed all deductions under §97.254(b), the Administrator will record in the compliance account any CAIR SO2 allowance allocated to any CAIR SO2 unit at the source for the new 30th year (i.e., the year that is 30 years after the calendar year for which such deductions are or could be made) and any CAIR SO2 allowance allocated for the new 30th year and transferred to the source in accordance with subpart GGG of this part or subpart D of part 73 of this chapter.

(b)(1) After a general account is established under §97.251(b) or §73.31(c) of this chapter, the Administrator will record in the general account any CAIR SO2 allowance allocated for each of the 30 years starting the later of 2010 or the year in which the general account is established and transferred to the general account in accordance with subpart GGG of this part or subpart D of part 73 of this chapter.

(2) In 2011 and each year thereafter, after Administrator has completed all deductions under §97.254(b), the Administrator will record in the general account any CAIR SO2 allowance allocated for the new 30th year (i.e., the year that is 30 years after the calendar year for which such deductions are or could be made) and transferred to the general account in accordance with subpart GGG of this part or subpart D of part 73 of this chapter.

(c) Serial numbers for allocated CAIR SO2 allowances. When recording the allocation of CAIR SO2 allowances issued by a permitting authority under §97.288, the Administrator will assign each such CAIR SO2 allowance a unique identification number that will include digits identifying the year of the control period for which the CAIR SO2 allowance is allocated.

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§97.254   Compliance with CAIR SO2 emissions limitation.

(a) Allowance transfer deadline. The CAIR SO2 allowances are available to be deducted for compliance with a source's CAIR SO2 emissions limitation for a control period in a given calendar year only if the CAIR SO2 allowances:

(1) Were allocated for the control period in the year or a prior year; and

(2) Are held in the compliance account as of the allowance transfer deadline for the control period or are transferred into the compliance account by a CAIR SO2 allowance transfer correctly submitted for recordation under §§97.260 and 97.261 by the allowance transfer deadline for the control period.

(b) Deductions for compliance. Following the recordation, in accordance with §97.261, of CAIR SO2 allowance transfers submitted for recordation in a source's compliance account by the allowance transfer deadline for a control period, the Administrator will deduct from the compliance account CAIR SO2 allowances available under paragraph (a) of this section in order to determine whether the source meets the CAIR SO2 emissions limitation for the control period as follows:

(1) For a CAIR SO2 source subject to an Acid Rain emissions limitation, the Administrator will, in the following order:

(i) Deduct the amount of CAIR SO2 allowances, available under paragraph (a) of this section and not issued by a permitting authority under §97.288, that is required under §§73.35(b) and (c) of this part. If there are sufficient CAIR SO2 allowances to complete this deduction, the deduction will be treated as satisfying the requirements of §§73.35(b) and (c) of this chapter.

(ii) Deduct the amount of CAIR SO2 allowances, not issued by a permitting authority under §97.288, that is required under §§73.35(d) and 77.5 of this part. If there are sufficient CAIR SO2 allowances to complete this deduction, the deduction will be treated as satisfying the requirements of §§73.35(d) and 77.5 of this chapter.

(iii) Treating the CAIR SO2 allowances deducted under paragraph (b)(1)(i) of this section as also being deducted under this paragraph (b)(1)(iii), deduct CAIR SO2 allowances available under paragraph (a) of this section (including any issued by a permitting authority under §97.288) in order to determine whether the source meets the CAIR SO2 emissions limitation for the control period, as follows:

(A) Until the tonnage equivalent of the CAIR SO2 allowances deducted equals, or exceeds in accordance with paragraphs (c)(1) and (2) of this section, the number of tons of total sulfur dioxide emissions, determined in accordance with subpart HHH of this part, from all CAIR SO2 units at the source for the control period; or

(B) If there are insufficient CAIR SO2 allowances to complete the deductions in paragraph (b)(1)(iii)(A) of this section, until no more CAIR SO2 allowances available under paragraph (a) of this section (including any issued by a permitting authority under §97.288) remain in the compliance account.

(2) For a CAIR SO2 source not subject to an Acid Rain emissions limitation, the Administrator will deduct CAIR SO2 allowances available under paragraph (a) of this section (including any issued by a permitting authority under §97.288) in order to determine whether the source meets the CAIR SO2 emissions limitation for the control period, as follows:

(i) Until the tonnage equivalent of the CAIR SO2 allowances deducted equals, or exceeds in accordance with paragraphs (c)(1) and (2) of this section, the number of tons of total sulfur dioxide emissions, determined in accordance with subpart HHH of this part, from all CAIR SO2 units at the source for the control period; or

(ii) If there are insufficient CAIR SO2 allowances to complete the deductions in paragraph (b)(2)(i) of this section, until no more CAIR SO2 allowances available under paragraph (a) of this section (including any issued by a permitting authority under §97.288) remain in the compliance account.

(c)(1) Identification of CAIR SO2 allowances by serial number. The CAIR authorized account representative for a source's compliance account may request that specific CAIR SO2 allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period in accordance with paragraph (b) or (d) of this section. Such request shall be submitted to the Administrator by the allowance transfer deadline for the control period and include, in a format prescribed by the Administrator, the identification of the CAIR SO2 source and the appropriate serial numbers.

(2) First-in, first-out. The Administrator will deduct CAIR SO2 allowances under paragraph (b) or (d) of this section from the source's compliance account, in the absence of an identification or in the case of a partial identification of CAIR SO2 allowances by serial number under paragraph (c)(1) of this section, on a first-in, first-out (FIFO) accounting basis in the following order:

(i) Any CAIR SO2 allowances that were allocated to the units at the source for a control period before 2010, in the order of recordation;

(ii) Any CAIR SO2 allowances that were allocated to any entity for a control period before 2010 and transferred and recorded in the compliance account pursuant to subpart GGG of this part or subpart D of part 73 of this chapter, in the order of recordation;

(iii) Any CAIR SO2 allowances that were allocated to the units at the source for a control period during 2010 through 2014, in the order of recordation;

(iv) Any CAIR SO2 allowances that were allocated to any entity for a control period during 2010 through 2014 and transferred and recorded in the compliance account pursuant to subpart GGG of this part or subpart D of part 73 of this chapter, in the order of recordation;

(v) Any CAIR SO2 allowances that were allocated to the units at the source for a control period in 2015 or later, in the order of recordation; and

(vi) Any CAIR SO2 allowances that were allocated to any entity for a control period in 2015 or later and transferred and recorded in the compliance account pursuant to subpart GGG of this part or subpart D of part 73 of this chapter, in the order of recordation.

(d) Deductions for excess emissions. (1) After making the deductions for compliance under paragraph (b) of this section for a control period in a calendar year in which the CAIR SO2 source has excess emissions, the Administrator will deduct from the source's compliance account the tonnage equivalent in CAIR SO2 allowances, allocated for the control period in the immediately following calendar year (including any issued by a permitting authority under §97.288), equal to, or exceeding in accordance with paragraphs (c)(1) and (2) of this section 3 times the following amount: the number of tons of the source's excess emissions minus, if the source is subject to an Acid Rain emissions limitation, the amount of the CAIR SO2 allowances required to be deducted under paragraph (b)(1)(ii) of this section.

(2) Any allowance deduction required under paragraph (d)(1) of this section shall not affect the liability of the owners and operators of the CAIR SO2 source or the CAIR SO2 units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violations, as ordered under the Clean Air Act or applicable State law.

(e) Recordation of deductions. The Administrator will record in the appropriate compliance account all deductions from such an account under paragraphs (b) and (d) of this section and subpart III.

(f) Administrator's action on submissions. (1) The Administrator may review and conduct independent audits concerning any submission under the CAIR SO2 Trading Program and make appropriate adjustments of the information in the submissions.

(2) The Administrator may deduct CAIR SO2 allowances from or transfer CAIR SO2 allowances to a source's compliance account based on the information in the submissions, as adjusted under paragraph (f)(1) of this section, and record such deductions and transfers.

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§97.255   Banking.

(a) CAIR SO2 allowances may be banked for future use or transfer in a compliance account or a general account in accordance with paragraph (b) of this section.

(b) Any CAIR SO2 allowance that is held in a compliance account or a general account will remain in such account unless and until the CAIR SO2 allowance is deducted or transferred under §97.254, §97.256, or subpart GGG or III of this part.

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§97.256   Account error.

The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any CAIR SO2 Allowance Tracking System account. Within 10 business days of making such correction, the Administrator will notify the CAIR authorized account representative for the account.

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§97.257   Closing of general accounts.

(a) The CAIR authorized account representative of a general account may submit to the Administrator a request to close the account, which shall include a correctly submitted allowance transfer under §§97.260 and 97.261 for any CAIR SO2 allowances in the account to one or more other CAIR SO2 Allowance Tracking System accounts.

(b) If a general account has no allowance transfers in or out of the account for a 12-month period or longer and does not contain any CAIR SO2 allowances, the Administrator may notify the CAIR authorized account representative for the account that the account will be closed following 20 business days after the notice is sent. The account will be closed after the 20-day period unless, before the end of the 20-day period, the Administrator receives a correctly submitted transfer of CAIR SO2 allowances into the account under §§97.260 and 97.261 or a statement submitted by the CAIR authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.

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Subpart GGG—CAIR SO2 Allowance Transfers

§97.260   Submission of CAIR SO2 allowance transfers.

(a) A CAIR authorized account representative seeking recordation of a CAIR SO2 allowance transfer shall submit the transfer to the Administrator. To be considered correctly submitted, the CAIR SO2 allowance transfer shall include the following elements, in a format specified by the Administrator:

(1) The account numbers of both the transferor and transferee accounts;

(2) The serial number of each CAIR SO2 allowance that is in the transferor account and is to be transferred; and

(3) The name and signature of the CAIR authorized account representatives of the transferor and transferee accounts and the dates signed.

(b)(1) The CAIR authorized account representative for the transferee account can meet the requirements in paragraph (a)(3) of this section by submitting, in a format prescribed by the Administrator, a statement signed by the CAIR authorized account representative and identifying each account into which any transfer of allowances, submitted on or after the date on which the Administrator receives such statement, is authorized. Such authorization shall be binding on any CAIR authorized account representative for such account and shall apply to all transfers into the account that are submitted on or after such date of receipt, unless and until the Administrator receives a statement signed by the CAIR authorized account representative retracting the authorization for the account.

(2) The statement under paragraph (b)(1) of this section shall include the following: “By this signature I authorize any transfer of allowances into each account listed herein, except that I do not waive any remedies under State or Federal law to obtain correction of any erroneous transfers into such accounts. This authorization shall be binding on any CAIR authorized account representative for such account unless and until a statement signed by the CAIR authorized account representative retracting this authorization for the account is received by the Administrator.”

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§97.261   EPA recordation.

(a) Within 5 business days (except as necessary to perform a transfer in perpetuity of CAIR SO2 allowances allocated to a CAIR SO2 unit or as provided in paragraph (b) of this section) of receiving a CAIR SO2 allowance transfer, the Administrator will record a CAIR SO2 allowance transfer by moving each CAIR SO2 allowance from the transferor account to the transferee account as specified by the request, provided that:

(1) The transfer is correctly submitted under §97.260;

(2) The transferor account includes each CAIR SO2 allowance identified by serial number in the transfer; and

(3) The transfer is in accordance with the limitation on transfer under §74.42 of this chapter and §74.47(c) of this chapter, as applicable.

(b) A CAIR SO2 allowance transfer that is submitted for recordation after the allowance transfer deadline for a control period and that includes any CAIR SO2 allowances allocated for any control period before such allowance transfer deadline will not be recorded until after the Administrator completes the deductions under §97.254 for the control period immediately before such allowance transfer deadline.

(c) Where a CAIR SO2 allowance transfer submitted for recordation fails to meet the requirements of paragraph (a) of this section, the Administrator will not record such transfer.

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§97.262   Notification.

(a) Notification of recordation. Within 5 business days of recordation of a CAIR SO2 allowance transfer under §97.261, the Administrator will notify the CAIR authorized account representatives of both the transferor and transferee accounts.

(b) Notification of non-recordation. Within 10 business days of receipt of a CAIR SO2 allowance transfer that fails to meet the requirements of §97.261(a), the Administrator will notify the CAIR authorized account representatives of both accounts subject to the transfer of:

(1) A decision not to record the transfer, and

(2) The reasons for such non-recordation.

(c) Nothing in this section shall preclude the submission of a CAIR SO2 allowance transfer for recordation following notification of non-recordation.

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Subpart HHH—Monitoring and Reporting

§97.270   General requirements.

The owners and operators, and to the extent applicable, the CAIR designated representative, of a CAIR SO2 unit, shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this subpart and in subparts F and G of part 75 of this chapter. For purposes of complying with such requirements, the definitions in §97.202 and in §72.2 of this chapter shall apply, and the terms “affected unit,” “designated representative,” and “continuous emission monitoring system” (or “CEMS”) in part 75 of this chapter shall be deemed to refer to the terms “CAIR SO2 unit,” “CAIR designated representative,” and “continuous emission monitoring system” or (“CEMS”) respectively, as defined in §97.202. The owner or operator of a unit that is not a CAIR SO2 unit but that is monitored under §75.16(b)(2) of this chapter shall comply with the same monitoring, recordkeeping, and reporting requirements as a CAIR SO2 unit.

(a) Requirements for installation, certification, and data accounting. The owner or operator of each CAIR SO2 unit shall:

(1) Install all monitoring systems required under this subpart for monitoring SO2 mass emissions and individual unit heat input (including all systems required to monitor SO2 concentration, stack gas moisture content, stack gas flow rate, CO2 or O2 concentration, and fuel flow rate, as applicable, in accordance with §§75.11 and 75.16 of this chapter);

(2) Successfully complete all certification tests required under §97.271 and meet all other requirements of this subpart and part 75 of this chapter applicable to the monitoring systems under paragraph (a)(1) of this section; and

(3) Record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section.

(b) Compliance deadlines. Except as provided in paragraph (e) of this section, the owner or operator shall meet the monitoring system certification and other requirements of paragraphs (a)(1) and (2) of this section on or before the following dates. The owner or operator shall record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section on and after the following dates.

(1) For the owner or operator of a CAIR SO2 unit that commences commercial operation before July 1, 2008, by January 1, 2009.

(2) For the owner or operator of a CAIR SO2 unit that commences commercial operation on or after July 1, 2008, by the later of the following dates:

(i) January 1, 2009; or

(ii) 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which the unit commences commercial operation.

(3) For the owner or operator of a CAIR SO2 unit for which construction of a new stack or flue or installation of add-on SO2 emission controls is completed after the applicable deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on SO2 emissions controls.

(4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under subpart III of this part, by the date specified in §97.284(b).

(5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a CAIR SO2 opt-in unit under subpart III of this part, by the date on which the CAIR SO2 opt-in unit enters the CAIR SO2 Trading Program as provided in §97.284(g).

(c) Reporting data. The owner or operator of a CAIR SO2 unit that does not meet the applicable compliance date set forth in paragraph (b) of this section for any monitoring system under paragraph (a)(1) of this section shall, for each such monitoring system, determine, record, and report maximum potential (or, as appropriate, minimum potential) values for SO2 concentration, stack gas flow rate, stack gas moisture content, fuel flow rate, and any other parameters required to determine SO2 mass emissions and heat input in accordance with §75.31(b)(2) or (c)(3) of this chapter or section 2.4 of appendix D to part 75 of this chapter, as applicable.

(d) Prohibitions. (1) No owner or operator of a CAIR SO2 unit shall use any alternative monitoring system, alternative reference method, or any other alternative to any requirement of this subpart without having obtained prior written approval in accordance with §97.275.

(2) No owner or operator of a CAIR SO2 unit shall operate the unit so as to discharge, or allow to be discharged, SO2 emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this subpart and part 75 of this chapter.

(3) No owner or operator of a CAIR SO2 unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording SO2 mass emissions discharged into the atmosphere or heat input, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this subpart and part 75 of this chapter.

(4) No owner or operator of a CAIR SO2 unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved monitoring system under this subpart, except under any one of the following circumstances:

(i) During the period that the unit is covered by an exemption under §97.205 that is in effect;

(ii) The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this subpart and part 75 of this chapter, by the Administrator for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

(iii) The CAIR designated representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with §97.271(d)(3)(i).

(e) Long-term cold storage. The owner or operator of a CAIR SO2 unit is subject to the applicable provisions of part 75 of this chapter concerning units in long-term cold storage.

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§97.271   Initial certification and recertification procedures.

(a) The owner or operator of a CAIR SO2 unit shall be exempt from the initial certification requirements of this section for a monitoring system under §97.270(a)(1) if the following conditions are met:

(1) The monitoring system has been previously certified in accordance with part 75 of this chapter; and

(2) The applicable quality-assurance and quality-control requirements of §75.21 of this chapter and appendix B and appendix D to part 75 of this chapter are fully met for the certified monitoring system described in paragraph (a)(1) of this section.

(b) The recertification provisions of this section shall apply to a monitoring system under §97.270(a)(1) exempt from initial certification requirements under paragraph (a) of this section.

(c) [Reserved]

(d) Except as provided in paragraph (a) of this section, the owner or operator of a CAIR SO2 unit shall comply with the following initial certification and recertification procedures, for a continuous monitoring system (i.e., a continuous emission monitoring system and an excepted monitoring system under appendix D to part 75 of this chapter) under §97.270(a)(1). The owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology under §75.19 of this chapter or that qualifies to use an alternative monitoring system under subpart E of part 75 of this chapter shall comply with the procedures in paragraph (e) or (f) of this section respectively.

(1) Requirements for initial certification. The owner or operator shall ensure that each continuous monitoring system under §97.270(a)(1) (including the automated data acquisition and handling system) successfully completes all of the initial certification testing required under §75.20 of this chapter by the applicable deadline in §97.270(b). In addition, whenever the owner or operator installs a monitoring system to meet the requirements of this subpart in a location where no such monitoring system was previously installed, initial certification in accordance with §75.20 of this chapter is required.

(2) Requirements for recertification. Whenever the owner or operator makes a replacement, modification, or change in any certified continuous emission monitoring system under §97.270(a)(1) that may significantly affect the ability of the system to accurately measure or record SO2 mass emissions or heat input rate or to meet the quality-assurance and quality-control requirements of §75.21 of this chapter or appendix B to part 75 of this chapter, the owner or operator shall recertify the monitoring system in accordance with §75.20(b) of this chapter. Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify each continuous emission monitoring system whose accuracy is potentially affected by the change, in accordance with §75.20(b) of this chapter. Examples of changes to a continuous emission monitoring system that require recertification include: replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site. Any fuel flowmeter system under §97.270(a)(1) is subject to the recertification requirements in §75.20(g)(6) of this chapter.

(3) Approval process for initial certification and recertification. Paragraphs (d)(3)(i) through (iv) of this section apply to both initial certification and recertification of a continuous monitoring system under §97.270(a)(1). For recertifications, replace the words “certification” and “initial certification” with the word “recertification”, replace the word “certified” with the word “recertified,” and follow the procedures in §§75.20(b)(5) and (g)(7) of this chapter in lieu of the procedures in paragraph (d)(3)(v) of this section.

(i) Notification of certification. The CAIR designated representative shall submit to the appropriate EPA Regional Office and the Administrator written notice of the dates of certification testing, in accordance with §97.273.

(ii) Certification application. The CAIR designated representative shall submit to the Administrator a certification application for each monitoring system. A complete certification application shall include the information specified in §75.63 of this chapter.

(iii) Provisional certification date. The provisional certification date for a monitoring system shall be determined in accordance with §75.20(a)(3) of this chapter. A provisionally certified monitoring system may be used under the CAIR SO2 Trading Program for a period not to exceed 120 days after receipt by the Administrator of the complete certification application for the monitoring system under paragraph (d)(3)(ii) of this section. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of part 75 of this chapter, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Administrator does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of the date of receipt of the complete certification application by the Administrator.

(iv) Certification application approval process. The Administrator will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under paragraph (d)(3)(ii) of this section. In the event the Administrator does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of part 75 of this chapter and is included in the certification application will be deemed certified for use under the CAIR SO2 Trading Program.

(A) Approval notice. If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of part 75 of this chapter, then the Administrator will issue a written notice of approval of the certification application within 120 days of receipt.

(B) Incomplete application notice. If the certification application is not complete, then the Administrator will issue a written notice of incompleteness that sets a reasonable date by which the CAIR designated representative must submit the additional information required to complete the certification application. If the CAIR designated representative does not comply with the notice of incompleteness by the specified date, then the Administrator may issue a notice of disapproval under paragraph (d)(3)(iv)(C) of this section. The 120-day review period shall not begin before receipt of a complete certification application.

(C) Disapproval notice. If the certification application shows that any monitoring system does not meet the performance requirements of part 75 of this chapter or if the certification application is incomplete and the requirement for disapproval under paragraph (d)(3)(iv)(B) of this section is met, then the Administrator will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the Administrator and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification (as defined under §75.20(a)(3) of this chapter). The owner or operator shall follow the procedures for loss of certification in paragraph (d)(3)(v) of this section for each monitoring system that is disapproved for initial certification.

(D) Audit decertification. The Administrator may issue a notice of disapproval of the certification status of a monitor in accordance with §97.272(b).

(v) Procedures for loss of certification. If the Administrator issues a notice of disapproval of a certification application under paragraph (d)(3)(iv)(C) of this section or a notice of disapproval of certification status under paragraph (d)(3)(iv)(D) of this section, then:

(A) The owner or operator shall substitute the following values, for each disapproved monitoring system, for each hour of unit operation during the period of invalid data specified under §75.20(a)(4)(iii), §75.20(g)(7), or §75.21(e) of this chapter and continuing until the applicable date and hour specified under §75.20(a)(5)(i) or (g)(7) of this chapter:

(1) For a disapproved SO2 pollutant concentration monitor and disapproved flow monitor, respectively, the maximum potential concentration of SO2 and the maximum potential flow rate, as defined in sections 2.1.1.1 and 2.1.4.1 of appendix A to part 75 of this chapter.

(2) For a disapproved moisture monitoring system and disapproved diluent gas monitoring system, respectively, the minimum potential moisture percentage and either the maximum potential CO2 concentration or the minimum potential O2 concentration (as applicable), as defined in sections 2.1.5, 2.1.3.1, and 2.1.3.2 of appendix A to part 75 of this chapter.

(3) For a disapproved fuel flowmeter system, the maximum potential fuel flow rate, as defined in section 2.4.2.1 of appendix D to part 75 of this chapter.

(B) The CAIR designated representative shall submit a notification of certification retest dates and a new certification application in accordance with paragraphs (d)(3)(i) and (ii) of this section.

(C) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Administrator's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.

(e) Initial certification and recertification procedures for units using the low mass emission excepted methodology under §75.19 of this chapter. The owner or operator of a unit qualified to use the low mass emissions (LME) excepted methodology under §75.19 of this chapter shall meet the applicable certification and recertification requirements in §§75.19(a)(2) and 75.20(h) of this chapter. If the owner or operator of such a unit elects to certify a fuel flowmeter system for heat input determination, the owner or operator shall also meet the certification and recertification requirements in §75.20(g) of this chapter.

(f) Certification/recertification procedures for alternative monitoring systems. The CAIR designated representative of each unit for which the owner or operator intends to use an alternative monitoring system approved by the Administrator under subpart E of part 75 of this chapter shall comply with the applicable notification and application procedures of §75.20(f) of this chapter.

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§97.272   Out of control periods.

(a) Whenever any monitoring system fails to meet the quality-assurance and quality-control requirements or data validation requirements of part 75 of this chapter, data shall be substituted using the applicable missing data procedures in subpart D of appendix D to part 75 of this chapter.

(b) Audit decertification. Whenever both an audit of a monitoring system and a review of the initial certification or recertification application reveal that any monitoring system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under §97.271 or the applicable provisions of part 75 of this chapter, both at the time of the initial certification or recertification application submission and at the time of the audit, the Administrator will issue a notice of disapproval of the certification status of such monitoring system. For the purposes of this paragraph, an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the Administrator. By issuing the notice of disapproval, the Administrator revokes prospectively the certification status of the monitoring system. The data measured and recorded by the monitoring system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the monitoring system. The owner or operator shall follow the applicable initial certification or recertification procedures in §97.271 for each disapproved monitoring system.

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§97.273   Notifications.

The CAIR designated representative