[Federal Register Volume 71, Number 82 (Friday, April 28, 2006)]
[Rules and Regulations]
[Pages 25328-25469]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2692]
[[Page 25327]]
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Part IV
Environmental Protection Agency
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40 CFR Parts 51, 52 et al.
Air Pollution Control--Transport of Emissions of Nitrogen Oxides
(NOX) and Sulfur Dioxide (SO2); Final Rule
Federal Register / Vol. 71, No. 82 / Friday, April 28, 2006 / Rules
and Regulations
[[Page 25328]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 51, 52, 72, 73, 74, 78, 96, and 97
[EPA-HQ-OAR-2004-0076; FRL-8047-5]
RIN 2060-AM99
Rulemaking on Section 126 Petition From North Carolina To Reduce
Interstate Transport of Fine Particulate Matter and Ozone; Federal
Implementation Plans To Reduce Interstate Transport of Fine Particulate
Matter and Ozone; Revisions to the Clean Air Interstate Rule; Revisions
to the Acid Rain Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of final rulemaking (NFR).
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SUMMARY: Today, EPA is taking actions to address the interstate
transport of emissions of nitrogen oxides (NOX) and sulfur
dioxide (SO2) that contribute significantly to nonattainment
and maintenance problems with respect to the national ambient air
quality standards (NAAQS) for fine particulate matter
(PM2.5) and 8-hour ozone. As one part of today's action, EPA
is providing its final response to a petition submitted to EPA by the
State of North Carolina under section 126 of the Clean Air Act (CAA).
The petition requests that EPA find that SO2 and/or
NOX emissions from electric generating units (EGUs) in 13
States are significantly contributing to PM2.5 and/or 8-hour
ozone nonattainment and maintenance problems in North Carolina, and
requested that EPA establish control requirements to prohibit such
significant contribution. The EPA is denying the petition because, in
today's action, EPA is promulgating Federal implementation plans (FIPs)
for all jurisdictions covered by the Clean Air Interstate Rule (CAIR)
to address interstate transport.
The FIPs will regulate EGUs in the affected States and achieve the
emissions reductions requirements established by the CAIR until States
have approved State implementation plans (SIPs) to achieve the
reductions. As the control requirement for the FIPs, EPA is adopting
the model trading rules that EPA provided in CAIR as a control option
for States, with minor changes to account for Federal rather than State
implementation.
Today's action also revises CAIR SIP model trading rules in order
to address the interaction between the EPA-administered CAIR FIP
trading programs being promulgated today and the EPA-administered CAIR
State trading programs that will be created by any State that elects to
submit a SIP establishing such a trading program to meet the
requirements of the CAIR. In addition, EPA is taking final action on
our reconsideration of the definition of ``EGU'' as it relates to solid
waste incinerators.
Today's action also makes revisions to the Acid Rain Program in
order to make the administrative appeals procedures, which currently
apply to final determinations by the Administrator under the EPA-
administered CAIR State trading programs, also apply to the EPA-
administered trading programs under the FIP action. In addition, we are
making certain minor revisions to the Acid Rain Program that will apply
to all affected units.
DATES: This action is effective on June 27, 2006.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OAR-2004-0076. All documents in the docket are
listed on the http://www.regulations.gov Web site. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Docket Center (Air
Docket), EPA/DC, EPA West, Room B102, 1301 Constitution Ave., NW.,
Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30
p.m., Monday through Friday, excluding legal holidays. The telephone
number for the Public Reading Room is (202) 566-1744 and the telephone
number for the Air Docket is (202) 566-1742.
FOR FURTHER INFORMATION CONTACT: For general questions concerning
today's section 126 action, please contact Carla Oldham, U.S. EPA,
Office of Air Quality Planning and Standards, Air Quality Policy
Division, C504-05, Research Triangle Park, NC 27711, telephone (919)
541-3347, e-mail at [email protected]. For general questions
concerning today's FIP action, please contact Tom Coda, U.S. EPA,
Office of Air Quality Planning and Standards, Air Quality Policy
Division, C539-01, Research Triangle Park, NC 27711, telephone (919)
541-3037, e-mail at [email protected]. For legal questions concerning
the section 126 action, please contact Steven Silverman, U.S. EPA,
Office of General Counsel, Mail Code 2344A, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460, telephone (202) 564-5523, e-mail at
[email protected]. For legal questions concerning the FIP
action, please contact Sonja Rodman, U.S. EPA, Office of General
Counsel, Mail Code 2344A, 1200 Pennsylvania Avenue, NW., Washington, DC
20460, telephone (202) 564-4097, e-mail at [email protected]. For
questions regarding the cap-and-trade programs and emissions budgets,
please contact Meg Victor, U.S. EPA, Office of Atmospheric Programs,
Clean Air Markets Division, Mail Code 6204J, 1200 Pennsylvania Avenue,
NW., Washington, DC 20460, telephone (202) 343-9193, e-mail at
[email protected]. For questions regarding the revisions to the CAIR
and Acid Rain Programs, please contact Dwight Alpern, U.S. EPA, Office
of Atmospheric Programs, Clean Air Markets Division, Mail Code 6204J,
1200 Pennsylvania Avenue, NW., Washington, DC 20460, telephone (202)
343-9151, e-mail at [email protected].
SUPPLEMENTARY INFORMATION:
I. Does This Action Apply to Me?
Categories and entities potentially regulated by this action
include the following:
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NAICS Examples of potentially
Category code \1\ regulated entities
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Industry.......................... 221112 Fossil fuel-fired
electric utility steam
generating units.
Federal government................ \2\ Fossil fuel-fired
221122 electric utility steam
generating units owned
by the Federal
government.
State/local/Tribal government..... \2\ Fossil fuel-fired
221122 electric utility steam
generating units owned
by municipalities.
[[Page 25329]]
921150 Fossil fuel-fired
electric utility steam
generating units in
Indian Country.
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\1\ North American Industry Classification System.
\2\ Federal, State, or local government-owned and operated
establishments are classified according to the activity in which they
are engaged.
This table is not intended to be exhaustive, but rather provides a
guide for readers regarding entities likely to be regulated by this
action. To determine whether your facility is affected by this action,
you should examine the definitions and applicability criteria in
Sec. Sec. 72.2, 72.6, 72.7, 72.8, and 74.2 for purposes of the Acid
Rain Program revisions and Sec. Sec. 97.102, 97.104, 97.105, 97.202,
97.204, 97.205, 97.302, 97.304, and 97.305 for purposes of the FIP
action. If you have any questions regarding the applicability of this
action to a particular entity, consult the person listed in the
preceding section under FOR FURTHER INFORMATION CONTACT.
II. Availability of Related Information
The EPA has conducted separate rulemakings that contain actions and
information related to today's action. The final ``Rule to Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule)'' was published on May 12, 2005 (70 FR 25162) (see
also proposal at 69 FR 4566, January 30, 2004; supplemental proposal at
69 FR 32684, June 10, 2004; and notice of data availability at 69 FR
47828, August 6, 2004). The EPA subsequently reconsidered several
aspects of the final CAIR (see 70 FR 72268; December 2, 2005 and 70 FR
77101; December 29, 2005) and is taking final action on reconsideration
in a separate action today. In addition, the EPA issued a proposal to
include Delaware and New Jersey in CAIR for PM2.5 (70 FR
25408, May 12, 2005) and is finalizing that rulemaking today, also in a
separate action. Documents related to the CAIR, including the actions
on reconsideration and to include Delaware and New Jersey in CAIR for
PM2.5, are available for inspection in docket EPA-HQ-OAR-
2003-0053 at the address and times given above. The EPA has established
a website for the CAIR at http://www.epa.gov/cleanairinterstaterule or
more simply http://www.epa.gov/cair/ which also includes information on
the section 126 rulemaking. The rulemaking docket for the CAIR contains
information and analyses that are relied upon in today's actions.
Therefore, EPA is including by reference the entire CAIR record for
purposes of the section 126 and FIP rulemakings.
III. Judicial Review
Under CAA section 307(b), judicial review of this final action is
available only by filing a petition for review in the U.S. Court of
Appeals for the District of Columbia Circuit on or before June 27,
2006. Under CAA section 307(d)(7)(B), only those objections to the
final rule that were raised with specificity during the period for
public comment may be raised during judicial review. Moreover, under
CAA section 307(b)(2), the requirements established by today's final
rule may not be challenged separately in any civil or criminal
proceedings brought by EPA to enforce these requirements.
Section 307(d)(7)(B)also provides a mechanism for the EPA to
convene a proceeding for reconsideration if the petitioner demonstrates
that it was impracticable to raise an objection during the public
comment period or if the grounds for such objection arose after the
comment period (but within the time for judicial review) and if the
objection is of central relevance to the rule. Any person seeking to
make such a demonstration to EPA should submit a Petition for
Reconsideration, clearly labeled as such, to the Office of the
Administrator, U.S. EPA, Room 3000, Ariel Rios Building, 1200
Pennsylvania Ave., Washington, DC 20460, with a copy to the Associate
General Counsel for the Air and Radiation Law Office, Office of General
Counsel, Mail Code 2344A, U.S. EPA, 1200 Pennsylvania Ave., NW.,
Washington, DC 20460.
Outline
I. Background and Summary of Rule
A. Summary of Rule
B. General Background on PM2.5 and Ozone
1. The PM2.5 Problem
2. The 8-Hour Ozone Problem
3. Other Environmental Effects Associated With SO2
and NOX Emissions
C. What Is the Statutory and Regulatory Background for Today's
Action?
1. What Is the ``Good Neighbor'' Provision?
2. What Is the CAA Section 126 Provision?
3. What Is EPA's Previous Section 126 Rulemaking?
4. What Is the Clean Air Interstate Rule?
5. What Are the Findings of Failure to Submit for the Section
110(a)(2)(D) Plans?
6. What Are the Petitions for Reconsideration of the CAIR?
D. Summary of North Carolina's Section 126 Petition
1. What Sources Does the Petition Target?
2. What Control Remedy Does the Petition Request?
3. What Is the Technical Support for the Petition?
E. What Is the Consent Decree on the Section 126 Rulemaking
Schedule?
II. What Is EPA's Legal and Analytical Approach for the Section 126
Petition?
III. What Is EPA's Final Action on the Section 126 Petition?
A. What Is EPA's Final Action With Respect to the 8-Hour Ozone
NAAQS?
B. What Is EPA's Final Action With Respect to the
PM2.5 NAAQS?
IV. What Is the Federal Implementation Plan for the CAIR?
A. What Is the Legal Framework for the FIPs?
B. What Is the Timing and Scope of the CAIR FIP Actions?
C. What Are the FIP Control Measures?
D. When and How Will EPA Remove the FIP Requirements if EPA
Approves a SIP to Meet the CAIR?
V. Emission Reduction Requirements for the CAIR FIP
A. Introduction
B. Regionwide SO2 and NOX Caps
C. State SO2 Emission Budgets
D. State NOX Annual and NOX Ozone Season
Emission Budgets
E. State NOX Annual Compliance Supplement Pool
VI. CAIR FIP NOX and SO2 Cap-and-trade
Programs for EGUs
A. Purpose of CAIR FIP NOX and SO2 Cap-
and-trade Programs and Relationship to the CAIR
B. Relationship of Emissions Trading Programs to Section 126
Relief
C. Abbreviated SIP Revisions Covering Elements of the CAIR FIP
Cap-and-trade Programs
D. Overall Structure of the CAIR FIP Cap-and-trade Programs
1. SO2 Annual Program
2. NOX Annual Program
3. NOX Ozone Season Program
E. Sources Subject to the CAIR FIP Cap-and-trade Programs
F. Allocation of NOX Emission Allowances to Sources
1. Schedule for Determining and Recording NOX
Allocations
2. Method for Allocating NOX Allowances
G. Allocation of SO2 Allowances to Sources
H. Allowance Banking
I. Incentives for Early Reductions
1. SO2 Annual Program
2. NOX Annual Program
3. NOX Ozone Season Program
J. Monitoring and Reporting Requirements
K. Interactions with Other CAA Programs
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VII. What are the Revisions of the CAIR SIP Rule, Including the CAIR
Model Cap-and-trade Rules?
VIII. What Are the Revisions of the Acid Rain Program Regulations?
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
K. Congressional Review Act
I. Background and Summary of Rule
A. Summary of Rule
In this rule, EPA is taking two final actions related to the
interstate transport of emissions of NOX and SO2
that contribute significantly to nonattainment and maintenance problems
with respect to the NAAQS for PM2.5 and 8-hour ozone. First,
EPA is providing its final response to the petition submitted to EPA by
the State of North Carolina under section 126 of the CAA. Second, EPA
is promulgating FIPs for all jurisdictions covered by the CAIR. The EPA
is also making revisions to the final CAIR to clarify certain
provisions, to correct minor errors, and to take final action on
reconsideration of the definition of ``EGU'' as it relates to solid
waste incinerators. Finally, EPA is making minor revisions to the Title
IV Acid Rain Program.
The North Carolina petition requests that EPA establish control
requirements for EGUs in 13 States based on findings that these sources
are significantly contributing to PM2.5 and/or 8-hour ozone
nonattainment and maintenance problems in North Carolina. (See
Petition, Docket No. EPA-HQ-OAR-2004-0076-0002.)
The EPA's response (as well as the petition itself) is based on
extensive analyses conducted for the CAIR (70 FR 25162; May 12, 2005).
The EPA is denying the petition in full. For sources in States not
shown in the final CAIR to be linked to (that is, to significantly
contribute to) nonattainment and maintenance problems in North
Carolina, the lack of significant contribution to North Carolina is the
basis for this denial. For sources in States that are linked to North
Carolina under the CAIR for the PM2.5 NAAQS, EPA is denying
the petition because, concurrently with the section 126 response, EPA
is promulgating FIPs that require elimination of the significant
contribution. The FIPs will control the significant transport from
sources in States named in the petition as well as from sources in the
other CAIR States, in the event that the States do not have timely,
approved SIPs meeting the CAIR requirements. The States named in the
petition with respect to the PM2.5 NAAQS are: Alabama,
Georgia, Illinois, Indiana, Kentucky, Michigan, Ohio, Pennsylvania,
South Carolina, Tennessee, Virginia, and West Virginia. Of these,
Illinois and Michigan are not linked to North Carolina in the final
CAIR.
The States named in the petition with respect to the 8-hour ozone
NAAQS are: Georgia, Maryland, South Carolina, Tennessee, and Virginia.
There are no States linked to North Carolina under the CAIR for the 8-
hour ozone NAAQS because North Carolina is projected to be in
attainment in the 2010 baseline for the analyses.
As mentioned above, in today's action, EPA is also promulgating
FIPs to address interstate transport of NOX and
SO2 under section 110(a)(2)(D) for all jurisdictions that
are covered by the CAIR. In the CAIR, EPA determined that 28 States and
the District of Columbia contribute significantly to nonattainment of
the NAAQS for PM2.5 and/or 8-hour ozone in downwind States.
The CAIR explains EPA's basis for determining significant contribution
to downwind nonattainment and maintenance problems. In that rule, the
EPA required the affected upwind States to revise their SIPs to include
control measures to reduce emissions of SO2 and/or
NOX. Sulfur dioxide is a precursor to PM2.5
formation, and NOX is a precursor to both ozone and
PM2.5 formation.
In an action published on the same day as the final CAIR, EPA
proposed to find that Delaware and New Jersey contribute significantly
to PM2.5 nonattainment and maintenance problems in downwind
States considering these States as a single entity (70 FR 25408; May
12, 2005). These States were included in the final CAIR only with
respect to their impacts on downwind 8-hour ozone nonattainment and
maintenance problems. Today, in a separate action, EPA is issuing the
final rule to include Delaware and New Jersey in the CAIR region for
PM2.5. Therefore, today's FIP rule includes emissions
reductions requirements for Delaware and New Jersey to address their
significant contribution to nonattainment or maintenance problems for
the PM2.5 NAAQS.
The FIPs will regulate EGUs in the affected States and achieve the
emissions reductions required by the CAIR until States have approved
SIPs to achieve the reductions. The CAIR emissions budgets were based
on control requirements that are highly cost effective for EGUs.
The EPA intends the CAIR FIPs to address the requirements of
section 110(a)(2)(D)(i) to prevent interstate transport that
contributes significantly to nonattainment or interferes with
maintenance in downwind areas and to provide a Federal backstop for
CAIR. In no way should the FIPs for CAIR be viewed as a sign of any
concern about States meeting their SIP responsibilities under CAIR.
There are no sanctions associated with these FIPs and EPA does not
intend for CAIR FIPs to have any negative consequences for the affected
States. The EPA is providing FIP approaches that are flexible and
intended to provide States options for getting their SIPs in place.
As the control requirement for the FIPs, EPA is adopting the model
trading rules that EPA provided in CAIR as a control option for States,
with minor changes to account for Federal rather than State
implementation. The CAIR FIP NOX and SO2 trading
programs provide emissions reductions equal to those required under the
CAIR in affected States.
These trading programs provide emissions reductions equal to those
required under CAIR in the affected States. The CAIR FIP trading
programs are integrated with the EPA-administered State CAIR trading
programs that are based on the model rules so that sources can trade
with one another under the respective emissions caps. The EPA
emphasizes that the FIPs do not limit the options available to States
to meet the requirements of the CAIR. We do not intend to record
NOX allocations in sources' allowance accounts (or take any
other steps to implement FIP requirements that could impact a State's
ability to regulate their sources in a different manner) until a year
after the CAIR SIP submission deadline.\1\ This will allow EPA time to
[[Page 25331]]
take rulemaking action to approve timely SIPs before implementation of
FIP requirements occurs. In addition, States could replace the FIP
requirements at a later time.
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\1\ The CAIR requires affected sources to begin monitoring 1
year before the initial control periods (i.e., sources begin
monitoring in 2008 for the NOX programs and begin
monitoring in 2009 for the SO2 program). Note that EPA
will take any necessary actions to implement the monitoring
provisions of the FIP trading rules in time for monitoring to begin
in 2008. To the extent that a State chooses to control EGUs to meet
its CAIR obligations, the monitoring requirements will be identical
whether EPA regulations EGUs through the Federal trading programs or
the State regulates EGUs through its SIP.
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In today's action, EPA is also making revisions to the CAIR in
order to address the interaction of EPA-administered NOX and
SO2 trading programs under the CAIR and under the FIP
action. In addition, EPA is making revisions to the CAIR in order to
clarify certain provisions and to correct certain minor errors and
taking final action on reconsideration of the definition of ``EGU'' as
it relates to solid waste incinerators.
The EPA is also revising the Title IV Acid Rain Program in order to
make the administrative appeals procedures (in 40 CFR part 78), which
currently apply to final determinations by the Administrator under the
EPA-administered State CAIR trading programs, also apply to the EPA-
administered trading programs under the FIPs. In addition, EPA is
making minor revisions that would apply to all affected units under the
Acid Rain Program.
B. General Background on PM2.5 and Ozone
1. The PM2.5 Problem
In an action published on July 18, 1997, we revised the NAAQS for
particulate matter (PM) to add new standards for fine particles, using
as the indicator particles with aerodynamic diameters smaller than a
nominal 2.5 micrometers, termed PM2.5 (62 FR 38652). We
established health- and welfare-based (primary and secondary) annual
and 24-hour standards for PM2.5. The annual standard is 15
micrograms per cubic meter, based on the 3-year average of annual mean
PM2.5 concentrations. The 24-hour standard is 65 micrograms
per cubic meter, based on the 3-year average of the annual 98th
percentile of 24-hour concentrations. The annual standard is generally
considered the more limiting value.\2\
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\2\ The EPA recently proposed to amend the NAAQS for
PM2.5 (71 FR 2620; Jan. 17, 2006). The EPA is scheduled
to take final action on this proposal by September 27, 2006. These
actions are not relevant to this rulemaking because all of the
actions herein concern the existing NAAQS.
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Fine particles are associated with a number of serious health
effects including premature mortality, aggravation of respiratory and
cardiovascular disease (as indicated by increased hospital admissions,
emergency room visits, absences from school or work, and restricted
activity days), lung disease, decreased lung function, asthma attacks,
and certain cardiovascular problems. (See EPA, Air Quality Criteria for
Particulate Matter (EPA/600/P-99/002bF, October 2004) at 9.2.2.3).) The
EPA has estimated that attainment of the current PM2.5
standards would prolong tens of thousands of lives and would prevent,
each year, tens of thousands of hospital admissions as well as hundreds
of thousands of doctor visits, absences from work and school, and
respiratory illnesses in children.
Individuals particularly sensitive to fine particle exposure
include older adults, people with heart and lung disease, and children.
More detailed information on health effects of fine particles can be
found on EPA's Web site at: http://www.epa.gov/ttn/naaqs/standards/pm/s_pm_index.html.
The secondary or welfare-based PM2.5 standards are
designed to protect against major environmental effects caused by PM
such as visibility impairment, soiling, and materials damage.
As discussed in other sections of this preamble, SO2 and
NOX emissions both contribute to fine particle
concentrations. In addition, NOX emissions contribute to
ozone concentrations, described in the next section.
The PM2.5 ambient air quality monitoring for the 2001-
2003 period shows that areas violating the standards are located across
much of the eastern half of the United States and in parts of
California and Montana. The EPA published the PM2.5
attainment and nonattainment designations on January 5, 2005 (70 FR
944) and issued supplemental amendments on April 14, 2005 (70 FR
19844).
2. The 8-Hour Ozone Problem
In an action published on July 18, 1997, we promulgated identical
revised primary and secondary ozone standards that specified an 8-hour
ozone standard of 0.08 parts per million (ppm). Specifically, under the
standards, the 3-year average of the fourth highest daily maximum 8-
hour average ozone concentration may not exceed 0.08 ppm. In general,
the revised 8-hour standards are more protective of public health and
the environment and more stringent than the pre-existing 1-hour ozone
standards.
Short-term (1- to 3-hour) and prolonged (6-to 8-hour) exposures to
ambient ozone have been linked to a number of adverse health effects.
At sufficient concentrations, short-term exposure to ozone can irritate
the respiratory system, causing coughing, throat irritation, and chest
pain. Ozone can reduce lung function and make it more difficult to
breathe deeply. Breathing may become more rapid and shallow than
normal, thereby limiting a person's normal activity. Ozone also can
aggravate asthma, leading to more asthma attacks that may require a
doctor's attention and the use of additional medication. Increased
hospital admissions and emergency room visits for respiratory problems
have been associated with ambient ozone exposures. Longer-term ozone
exposure can inflame and damage the lining of the lungs, which may lead
to permanent changes in lung tissue and irreversible reductions in lung
function. A lower quality of life may result if the inflammation occurs
repeatedly over a long time period (such as months, years, or a
lifetime). There is also recent epidemiological evidence suggesting
that there may be a correlation between short-term ozone exposure and
premature mortality.
People who are particularly susceptible to the effects of ozone
include people with respiratory diseases, such as asthma. Those who are
exposed to higher levels of ozone include adults and children who are
active outdoors.
In addition to causing adverse health effects, ozone affects
vegetation and ecosystems, leading to reductions in agricultural crop
and commercial forest yields; reduced growth and survivability of tree
seedlings; and increased plant susceptibility to disease, pests, and
other environmental stresses (e.g., harsh weather). In long-lived
species, these effects may become evident only after several years or
even decades and have the potential for long-term adverse impacts on
forest ecosystems. Ozone damage to the foliage of trees and other
plants can also decrease the aesthetic value of ornamental species used
in residential landscaping, as well as the natural beauty of our
national parks and recreation areas. More detailed information on
health effects of ozone can be found at the following EPA Web site:
http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html.
Presently, wide geographic areas, including most of the nation's
major population centers, experience ozone levels that violate the
NAAQS for 8-hour ozone. These areas include much of the eastern part of
the United States and large areas of California. The EPA published the
8-hour ozone attainment and nonattainment designations in the Federal
Register on April 30, 2004 (69 FR 23858).
[[Page 25332]]
3. Other Environmental Effects Associated With SO2 and
NOX Emissions
In addition to the enumerated human health and welfare benefits
resulting from reductions in ambient levels of PM2.5 and
ozone, reductions in NOX and SO2 will contribute
to substantial visibility improvements in many parts of the eastern
United States. Reductions in these pollutants will also reduce
acidification and eutrophication of water bodies in the region. In
addition, reducing emissions of NOX and SO2 from
EGUs can be expected to reduce emissions of mercury. Reduced mercury
emissions in turn may reduce mercury loadings in lakes and thereby
potentially decrease both human and wildlife exposure to fish
containing mercury.
C. What Is the Statutory and Regulatory Background for Today's Action?
1. What Is the ``Good Neighbor'' Provision?
Following promulgation of new or revised NAAQS, the CAA requires
all areas, regardless of their designation as attainment,
nonattainment, or unclassifiable, to submit SIPs containing provisions
specified under section 110(a)(2). Among these requirements are those
specified by the so-called ``good neighbor'' provision section
110(a)(2)(D) which addresses interstate transport of air pollution.
Section 110(a)(2)(D) requires that a SIP contain adequate
provisions--
(i) Prohibiting, consistent with the provisions of this title,
any source or other type of emissions activity within the State from
emitting any air pollutant in amounts which will--
(I) Contribute significantly to nonattainment in, or interfere
with maintenance by, any other State with respect to [any] national
primary or secondary ambient air quality standard, or
(II) Interfere with measures required to be included in the
applicable implementation plan for any other State under part C to
prevent significant deterioration of air quality or to protect
visibility.
(ii) Insuring compliance with the applicable requirements of
sections 126 and 115 (relating to interstate and international
pollution abatement);
Section 126 is discussed in the following section and section II of
this preamble explains the relationship between CAA sections 110 and
126 with respect to our final response to the section 126 petition and
the CAIR FIPs.
2. What Is the CAA Section 126 Provision?
Subsection (a) of section 126 requires, among other things, that
SIPs require major proposed new (or modified) stationary sources to
notify nearby States for which the air pollution levels may be affected
by the fact that such sources have been permitted to commence
construction. Subsection (b) provides:
Any State or political subdivision may petition the
Administrator for a finding that any major source or group of
stationary sources emits or would emit any air pollutant in
violation of the prohibition of section 110(a)(2)(D)[(i)] [of] this
section* * *.
Subsection (c) of section 126 states that--
[I]t shall be a violation of this section and the applicable
implementation plan in such State [in which the source is located or
intends to locate]--
(1) For any major proposed new (or modified) source with respect
to which a finding has been made under subsection (b) to be
constructed or to operate in violation of this section and the
prohibition of section 110(a)(2)(D)[(i)] \3\ [of] this section, or
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\3\ While the text of section 126 refers to section
110(a)(2)(D)(ii), this is a scrivener's error. Congress intended to
refer to section 110(a)(2)(D)(i). (See 64 FR 28267.) The EPA's
interpretation was upheld in Appalachian Power Co. v. EPA, 249 F. 3d
1032, 1040-44 (D.C. Cir. 2001).
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(2) for any major existing source to operate more than three
months after such finding has been made with respect to it.
However, subsection (c) further provides that EPA may permit the
continued operation of such major existing sources beyond the 3-month
period, if such sources comply with EPA-promulgated emissions limits
within 3 years of the date of the finding.
3. What Is EPA's Previous Section 126 Rulemaking?
The EPA has previously taken action under section 126 to address
interstate ozone transport (64 FR 28250; May 25, 1999 and 65 FR 2674;
January 18, 2000). Because there are many parallels between that
earlier action and today's rule, we briefly discuss our earlier action
here.
Like the present rulemaking, EPA's previous section 126 rulemaking,
dealing with interstate transport of NOX, occurred
essentially in conjunction with an EPA rulemaking dealing with
interstate transport of the same pollutants, the NOX SIP
Call (62 FR 60318; November 7, 1997). As in today's rule, EPA concluded
that section 126 and section 110(a)(2)(D)(i) are integrally connected
(due to the reference to the section 110(a)(2)(D)(i) prohibition found
in section 126 (b)). Thus, the interstate transport problem at issue
could be addressed under either provision, and once the underlying
section 110(a)(2)(D)(i) SIP deficiency is eliminated, there no longer
is a basis for EPA to make a positive finding under section 126. (See
sections II and III below for a more detailed discussion.) In the
earlier rulemaking, we therefore concluded that emissions reductions
sufficient to eliminate a section 110(a)(2)(D) SIP deficiency would
also be sufficient to satisfy section 126.
The NOX SIP Call required SIP revisions eliminating the
amount of emissions that contribute significantly to nonattainment in
downwind States, the amount of emissions reductions corresponding to
the quantity of emissions that could be eliminated by the application
of highly cost-effective controls on specified sources in each upwind
State. The section 126 remedy consequently called for the same set of
highly cost-effective controls for the section 126 source categories,
based on the record of the NOX SIP Call. We are adopting
this same conceptual approach in today's rulemaking.
There are also parallels between our earlier section 126 action and
this action with regard to timing of actions in the section 126
proceeding and in the closely-related interstate transport proceeding
under section 110(a)(2)(D)(i). Because a section 126 finding turns on
the existence of a section 110(a)(2)(D)(i) deficiency, in the May 1999
Section 126 Rule, we determined which petitions had technical merit,
but we stopped short of granting the findings sought by the petitions.
Instead, we stated that because we had promulgated the NOX
SIP Call, as long as an upwind State remained on track to comply with
that rule, EPA would defer making the section 126 findings (See 64 FR
28271-28272). Later judicial action staying the NOX SIP Call
rule resulted in EPA granting the section 126 petitions at issue, but
the new rule retained the basic linkage between section 126 and section
110(a)(2)(D)(i) by providing that EPA would withdraw the section 126
findings upon EPA approval of a SIP satisfying the emission reduction
requirements of the NOX SIP Call rule or upon EPA's
promulgation of a FIP that achieved the emissions reductions. [See 65
FR at 2683 and Appalachian Power v. EPA, 249 F. 3d 1032, 1039 (D.C.
Cir., 2001).] Similarly, in our proposal on the North Carolina section
126 petition, we proposed to deny the section 126 petition if we
approved SIPs which satisfied the emission reduction requirements of
the CAIR, or if we promulgated a FIP which included the emission
reduction requirements of the CAIR. (In today's final rule, we are
denying the petition because we are promulgating FIPs concurrently with
the final section 126 response, which FIPs eliminate the significant
[[Page 25333]]
contribution from upwind sources to North Carolina.)
Finally, in the earlier section 126 rule, EPA adopted as a remedy
for section 126 a Federal NOX cap-and-trade program
patterned after the model NOX cap-and-trade program that EPA
developed for States as an option to meet their NOX SIP Call
requirements. See 65 FR 2686. The EPA proposed the same approach for
the North Carolina section 126 petition, in the event that EPA granted
the petition.
4. What Is the Clean Air Interstate Rule?
The EPA developed the CAIR to address interstate pollution
transport with respect to the newly adopted PM2.5 and 8-hour
ozone NAAQS.
In the CAIR, based on air quality modeling analyses and cost
analyses, EPA concluded that SO2 and NOX
emissions in certain States in the eastern part of the country, through
the phenomenon of air pollution transport,\4\ contribute significantly
to PM2.5 and/or 8-hour ozone nonattainment and maintenance
problems in downwind States. The CAIR establishes emission reduction
requirements for the affected upwind States under CAA section
110(a)(2)(D)(i). The affected States and the District of Columbia have
until September 11, 2006 to adopt and submit SIP revisions to achieve
these required reductions. The SIP revision must contain measures that
will assure that sources in the State reduce their SO2 and/
or NOX emissions sufficiently to eliminate the amounts of
SO2 and NOX that contribute significantly to
nonattainment downwind. Reducing upwind precursor emissions will assist
the downwind PM2.5 and 8-hour ozone areas in achieving and
maintaining the NAAQS. Moreover, attainment will be achieved in a more
equitable, cost-effective manner than if each nonattainment area
attempted to achieve attainment by implementing local emissions
reductions alone. The EPA specified that the CAIR emissions reductions
be implemented in two phases. The first phase of NOX
reductions starts in 2009 (covering 2009-2014) and the first phase of
SO2 reductions starts in 2010 (covering 2010-2014); the
second phase of reductions for both NOX and SO2
starts in 2015 (covering 2015 and thereafter). The emissions reduction
requirements are based on controls that are known to be highly cost
effective for EGUs; however, States have the flexibility to determine
what measures to adopt to achieve the necessary reductions. In the
CAIR, EPA provided model SO2 and NOX trading
programs for EGUs that States can choose to adopt to meet the emissions
reduction requirements in a flexible and highly cost-effective manner.
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\4\ When we use the term ``transport'' we mean to include the
transport of both fine particles (PM2.5) and their
precursor emissions and/or transport of both ozone and its precursor
emissions.
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With the inclusion of Delaware and New Jersey in the CAIR
PM2.5 region, EPA estimates that the CAIR will reduce
SO2 emissions by 3.6 million tons in 2010 and by 3.9 million
tons in 2015; and will reduce annual NOX emissions by 1.2
million tons in 2009 and by 1.5 million tons in 2015. (These numbers
reflect the annual SO2 and NOX requirements.) If
all these States choose to achieve these reductions through EGU
controls, then EGU SO2 emissions in the affected States
would be capped at 3.7 million tons in 2010 and 2.6 million tons in
2015; \5\ and EGU annual NOX emissions would be capped at
1.5 million tons in 2009 and 1.3 million tons in 2015.
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\5\ It should be noted that the SO2 trading program
provides that sources may bank pre-2010 title IV SO2
allowances to be used for compliance with CAIR. These provisions
encourage sources to make early emission reductions and ease the
transition to the CAIR SO2 program, and as a result,
emissions may not reflect the emission caps in any given year.
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Based on the promulgated CAIR (70 FR 25162), EPA estimates that the
required SO2 and NOX emissions reductions would,
by themselves, bring into attainment 52 of the 79 counties that are
otherwise projected to be in nonattainment for PM2.5 in
2010, and 57 of the 74 counties that are otherwise projected to be in
nonattainment for PM2.5 in 2015. The EPA further estimates
that the required NOX emissions reductions would, by
themselves, bring into attainment 3 of the 40 counties that are
otherwise projected to be in nonattainment for 8-hour ozone in 2010,
and 6 of the 22 counties that are projected to be in nonattainment for
8-hour ozone in 2015. In addition, the CAIR will improve
PM2.5 and 8-hour ozone air quality in the areas that would
remain in nonattainment for those two NAAQS after implementation of the
CAIR. Because of CAIR, the States with those remaining nonattainment
areas will find it less burdensome and less expensive to reach
attainment by adopting additional local controls. The CAIR will also
reduce PM2.5 and 8-hour ozone levels in attainment areas,
providing significant health and environmental benefits in all areas of
the eastern United States.
For a more complete description of the CAIR and its impacts, the
reader is encouraged to review the preamble to the CAIR.
5. What Are the Findings of Failure To Submit for the Section
110(a)(2)(D) Plans?
In a final rule published on April 25, 2005 (70 FR 21147), we made
national findings that States have failed to submit SIPs required under
section 110(a)(2)(D) to address interstate transport with respect to
the 8-hour ozone and PM2.5 NAAQS.
The April 25, 2005 findings started a 2-year clock for EPA to
promulgate a FIP to address the requirements of section 110(a)(2)(D).
Under section 110(c)(1), EPA may issue a FIP any time after such
findings are made and must do so unless a SIP revision correcting the
deficiency is approved by EPA before the FIP is promulgated. For States
affected by CAIR, an approved SIP meeting the CAIR requirements would
satisfy the requirement and turn off the FIP clock. As discussed below
in section IV, EPA is today promulgating FIPs for States affected by
the CAIR. However, EPA intends to withdraw the FIP in a State in
coordination with approval of a SIP for the State that meets the CAIR
requirements.
The findings do not start a sanctions clock pursuant to section 179
because the findings do not pertain to a part D plan for nonattainment
areas required under section 110(a)(2)(I) and because the action is not
a SIP Call pursuant to section 110(k)(5).
6. What Are the Petitions for Reconsideration of the CAIR?
Following publication of the final CAIR, EPA received twelve
petitions requesting reconsideration of certain aspects of the final
rule. The EPA considered all issues raised in the petitions and decided
to reconsider six issues. In the notice of proposed rulemaking for this
rule, EPA announced its decision to reconsider one issue: the
definition of ``EGU'' as it relates to certain solid waste incineration
units. Subsequently, on December 2, 2005 (70 FR 72268), and December
29, 2005 (70 FR 77101), EPA published in the Federal Register notices
announcing its decisions to reconsider five additional aspects of CAIR
and requesting comment on those issues.
As part of this rule, EPA is taking final action on reconsideration
of the definition of ``EGU'' as it relates to certain solid waste
incineration units. As explained in sections VI.E and VII below, EPA
has revised the definition of EGU to establish a specific exemption for
certain solid waste incineration units.
In a separate notice signed today, EPA is taking final action on
the five
[[Page 25334]]
additional aspects of CAIR for which EPA granted petitions for
reconsideration. The EPA also is taking final action today to deny the
remaining issues raised in the twelve petitions for reconsideration.
These actions are discussed in greater detail in the preamble for the
notice of final action on reconsideration, titled ``Rule to Reduce
Interstate Transport of Fine Particulate Matter and Ozone (Clean Air
Interstate Rule): Reconsideration'' and all related documents are
available in the docket for the CAIR (EPA-HQ-OAR-2003-0053).
D. Summary of North Carolina's Section 126 Petition
1. What Sources Does the Petition Target?
The North Carolina petition requests reductions of certain
emissions from large EGUs located in 13 States. With respect to the
PM2.5 NAAQS, the petition requests that EPA find that
NOX and SO2 emissions from large EGUs in 12
States (Alabama, Georgia, Illinois, Indiana, Kentucky, Michigan, Ohio,
Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia)
are significantly contributing to nonattainment in, or interfering with
maintenance by, North Carolina. With respect to the 8-hour ozone NAAQS,
the petition requests that EPA find that NOX emissions from
large EGUs in 5 States (Georgia, Maryland, South Carolina, Tennessee,
and Virginia) are significantly contributing to nonattainment in, or
interfering with maintenance by, North Carolina (Petition, p.1).
The petition defines the term ``EGUs'' as all facilities meeting
the criteria described in the proposal for the CAIR. (See 69 FR 4566,
4610; January 30, 2004.) In the proposal for the CAIR, we defined EGUs
as ``fossil-fuel fired boilers and turbines serving an electric
generator with a nameplate capacity of greater than 25 megawatts (MW)
producing electricity for sale.'' (Id.) (See sections VI.E. and VII of
today's preamble for clarification of the EGU definition.)
2. What Control Remedy Does the Petition Request?
In its petition, North Carolina states that compliance with the
NOX and SO2 emissions budgets in the proposal for
the CAIR would satisfy the requirements of the petition. These
emissions budgets were based on controls that are highly cost effective
for EGUs [the highly cost effective control metric being a component of
determining which emissions contribute significantly (see State of
Michigan v. EPA, 213 F.3d 663, 674-80 (D.C. Cir., 2000) (upholding
consideration of cost as an aspect of significant contribution)]. North
Carolina also states that it does not oppose the flexibility discussed
by EPA (69 FR at 4622) to allow equivalent reductions from other source
categories in given States, so long as those reductions are real and
enforceable (Petition, p. 24).
In the CAIR, EPA provided model NOX and SO2
cap-and-trade programs for EGUs as control options for States to choose
to meet the CAIR emissions reductions requirements. The trading
programs allow interstate trading among sources in all States subject
to the CAIR that adopt the programs. In its petition, North Carolina
said it recognizes the value of allowing sources flexibility to reduce
their emissions in the most cost-effective manner consistent with the
statute. However, North Carolina expressed concerns about a regional
trading program (Petition, pp. 25-28). We address this issue below in
sections II and VI.
3. What Is the Technical Support for the Petition?
To support its claim that EGUs outside North Carolina are
contributing significantly to nonattainment and maintenance problems in
the State, North Carolina relies largely on EPA's technical analyses
for the proposed CAIR. Therefore, as discussed above, the petition
targets sources in the same States that EPA linked to North Carolina in
the proposed CAIR. As corroborative support, North Carolina cites
analyses conducted by the Southern Appalachian Mountains Initiative
(SAMI) on PM2.5 transport, North Carolina's further
evaluation of the SAMI's analyses, as well as back trajectory analyses
performed by the North Carolina Division of Air Quality from
PM2.5 monitors in two counties. (See Petition, pp. 13-17.)
E. What Is the Consent Decree on the Section 126 Rulemaking Schedule?
On March 19, 2004, EPA received a petition from the State of North
Carolina filed under CAA section 126. Section 126(b) requires EPA to
make the requested finding, or to deny the petition, within 60 days of
receipt. It also requires EPA to provide a public hearing before acting
on the petition. In addition, EPA's action under section 126 is subject
to the procedural requirements of section 307(d) of the CAA. [See
section 307(d)(2)-(5).] One of these requirements is that EPA conduct
notice-and-comment rulemaking. Section 307(d)(10) provides for a time
extension, under certain circumstances, for rulemakings subject to that
provision. Specifically, it allows statutory deadlines that require
promulgation in less than 6 months from proposal to be extended to not
more than 6 months from proposal to afford the public and the Agency
adequate opportunity to carry out the purposes of section 307(d). In an
action published on May 26, 2004 (69 FR 30038), EPA extended the
deadline for EPA to take action on the North Carolina petition by the
full 6 months, to November 18, 2004.
On February 17, 2005, the State of North Carolina and the citizen's
group Environmental Defense filed complaints against EPA seeking to
compel EPA to take action on the State's section 126 petition: State of
North Carolina v. Johnson, No. 5:05-CV-112 (E.D. N.C.) and
Environmental Defense v. Johnson, No. 5:05-CV-113 (E.D. N.C.). The EPA,
North Carolina, and Environmental Defense filed a proposed consent
decree that would establish a schedule for EPA to act on the petitions.
Pursuant to CAA section 113(g), the EPA solicited comments on the
proposed consent decree, by notice dated March 2, 2005 (70 FR 10089).
The comment period closed April 1, 2005 without EPA receiving negative
comment. On May 9, 2005, the court entered a slightly modified version
of the consent decree.
The schedule in the consent decree required EPA to sign a proposal
to grant or deny the petition by August 1, 2005, a date EPA met. (See
70 FR 49746.) The consent decree also required EPA to hold a public
hearing on the proposal during the week of September 12 in North
Carolina, and EPA held hearings in Research Triangle Park, North
Carolina and Washington, DC during that week. The EPA must also take
final action to grant or deny the petition by March 15, 2006, and is
doing so in this rule. With the signature of today's final response to
the petition, EPA has thus fulfilled all the deadlines and provisions
of the consent decree.
II. What Is EPA's Legal and Analytical Approach for the Section 126
Petition?
For the PM2.5 NAAQS, EPA proposed to deny the petition
with respect to sources in any State having an approved SIP meeting the
CAIR emissions reductions requirements, and with respect to sources in
any State for which EPA promulgated a FIP with those same emission
reductions requirements. In either case, there would no longer be a
violation of the prohibition in section 110(a)(2)(D)(i). Since a
violation of that prohibition is a condition precedent for granting a
section 126 petition, EPA
[[Page 25335]]
necessarily would deny the petition. (See 70 FR at 49716-49717.)
A number of commenters disagreed with EPA's approach. In their
view, section 126 guarantees a particular result: reductions of
emissions from designated upwind sources linked to North Carolina
nonattainment or maintenance problems, which reductions are to occur
within three years.
In the commenters' view, if an approved SIP or a FIP does not
provide this result within the three year time frame stated in section
126(c), then EPA must grant the petition. Thus, the argument goes, EPA
must find that certain sources significantly contribute to
nonattainment problems in North Carolina regardless of whether there is
a current violation of the section 110(a)(2)(D)(i) prohibition. The
commenters maintain that the statute, case-law, and past EPA practice
all compel their interpretation.
EPA disagrees. In our view, section 126 provides a mechanism
forcing EPA to act, but does not force adoption of controls beyond
those necessary to remove the underlying SIP deficiency which violates
the prohibition of section 110(a)(2)(D)(i). In essence, section 126
provides States a means to force EPA to take action to reduce specific
emissions when EPA has not taken the actions required by section
110(a)(2)(D)(i) to address significant contribution to downwind
receptors, but does not force further action. It follows, therefore,
that once EPA has taken action to eliminate the SIP deficiencies by
approving SIPs which implement CAIR (i.e., which eliminate the
significant contribution), or itself promulgates a CAIR FIP for states
with SIP deficiencies, there is no longer a cause of action under
section 126.\6\
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\6\ This analysis assumes that the facts underlying CAIR remain
unchanged. If a Petition were to present new information showing,
for example, that there is a different level of contribution than
EPA analyzed in CAIR, compliance with CAIR would not automatically
be determinative regarding whether upwind sources are emitting in
violation of the section 110 (a)(2)(D)(i) prohibition. See 64 FR at
28274 n. 15 and Appalachian Power, 249 F.3d at 1067 (later
developments can be the basis for another section 126 petition).
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This interpretation is consistent with the text of the statute,
which links action under section 126 inextricably with the existence of
an underlying section 110(a)(2)(D)(i) SIP deficiency: ``[a]ny State * *
* may petition the Administrator for a finding that any major source or
group of stationary sources emits * * * any air pollutant in violation
of the prohibition of section 110(a)(2)(D)[(i)] 7 o[f] this
section'' (emphasis added). Case law likewise makes clear that EPA's
determination of whether or not to grant a section 126 petition turns
on whether SIPs are in violation of section 110(a)(2)(D)(i).
Appalachian Power v. EPA, 249 F.3d 1032, 1045-46 (D.C. Cir. 2001).
Similarly, in the rulemaking dealing with a section 126 petition in
circumstances most analogous to those here (EPA's response to the
Northeastern states' petition regarding interstate transport of ozone
precursors, issued roughly contemporaneously with the NOX
SIP Call), EPA stated that it ``interprets section 126 to provide that
a source is emitting in violation of the prohibition of section
110(a)(2)(D)(i) where the applicable SIP fails to prohibit (and EPA has
not remedied this failure through a FIP) a quantity of emissions from
that source that EPA has determined contributes significantly to
nonattainment or interferes with maintenance in a downwind [S]tate''
(64 FR at 28272; May 25, 1999). Thus, ``[a]n upwind State and EPA may
remedy this excessive interstate transport of air pollutants through
adoption and approval of a SIP revision barring the emission of such
pollutants. Alternatively, a downwind State and EPA may remedy this
excessive interstate transport of air pollutants through the State
petitioning EPA under section 126 and EPA regulating the sources
directly'' (65 FR 2680; January 18, 2000).
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\7\ As noted earlier, the statutory text refers to subsection
(ii) of section 110(a)(2)(D), but this is a scrivener's error.
Appalachian Power, 249 F.3d 1032, 1040-44.
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Commenters argued, however, that the reference in section 126(b)
and (c) to ``the prohibition of section 110(a)(2)(D) [(i)]'' must be to
the functional prohibition in section 110(a)(2)(D)(i), by which they
mean a cessation of emissions that contribute significantly to
nonattainment in a downwind state. Under this reading, a remedy under
section 126 must entail emission reductions, not merely SIP revisions.
EPA agrees that the prohibition referred to is the functional
prohibition on significant contribution to downwind states, and
therefore, for example, EPA cannot defer granting a section 126
petition merely because a state is under a legal obligation to revise
its SIP. Appalachian Power, 249 F.3d at 1044. However, adoption of a
SIP implementing CAIR (or EPA enacting a CAIR FIP) addresses the
functional prohibition of section 110(a)(2)(D)(i) by eliminating the
SIP deficiency triggering the prohibition through requirements on
sources to eliminate the significant contribution to downwind
receptors. Moreover, to the extent the commenters are maintaining that
the `functional prohibition in section 110(a)(2)(D)(i)' refers to some
specific environmental result, such as North Carolina coming into
attainment (see Comments of North Carolina Attorney General at 17), we
disagree. EPA interprets ``significant contribution'' in the CAIR and
in this proceeding to include both an emission component and a
feasibility/cost-effectiveness component, so that what is prohibited
are specific levels of emissions which can feasibly be reduced in a
highly cost-effective manner. See also 65 FR at 2677 (applying cost
effectiveness component of the significant contribution standard in
granting a section 126 petition). Adoption of a CAIR SIP (or EPA
adopting a CAIR FIP) fully addresses this prohibition.
In the same vein, other commenters argued that sections
110(a)(2)(D) and 126 are independent provisions, and that EPA is
vitiating that independence by substituting a section 110 remedy for
the section 126 remedy, the implication again being that section 126
commands an environmental result which must be effectuated once the
section 110(a)(2)(D) prohibition is violated. EPA disagrees with the
premise of the comment. Although the two provisions unquestionably may
be applied independently, they are also closely linked in that a
violation of the prohibition in section 110(a)(2)(D)(i) is a condition
precedent for action under section 126 and, critically, that
significant contribution is construed identically for purposes of both
provisions (since the identical term naturally is interpreted as
meaning the same thing in the two linked provisions). See Appalachian
Power, 249 F. 3d at 1049-50. If EPA or a State has adopted provisions
that eliminate the significant contribution to downwind states, then
there simply is no violation of the section 110(a)(2)(D) prohibition.
Moreover, since we interpret significant contribution to mean the same
thing under both provisions, relief under section 126 to eliminate
significant contribution must in any case mean eliminating those
emissions which can feasibly be controlled in a highly cost-effective
manner as defined in the CAIR. Put another way, requiring additional
reductions would result in eliminating emissions which do not
contribute significantly, an action beyond the scope of section 126.
Commenters further argued that relief under section 126 must occur
within 3 years and therefore that the CAIR emission reductions do not
satisfy
[[Page 25336]]
section 126 because although those reductions commence within 3 years
they are phased in over a longer time. These comments assume that EPA
must make the section 126 findings, however, in which case sources
covered by the petition would indeed have to eliminate significant
contribution within 3 years. But as just explained, a condition
precedent to making section 126 findings is the existence of an
underlying SIP deficiency, which EPA has chosen to address directly
through action under section 110(a)(2)(D). Moreover, this choice is
appropriate. As a result of today's action, not only will there be an
approved SIP or a CAIR FIP in place requiring emission reductions which
eliminate the significant contribution to North Carolina, but these
reductions occur within 3 years, commencing in 2009 when NOX
controls (a PM2.5 precursor) are required (70 FR at 49718).
This is similar to EPA's decisions in the parallel NOX SIP
Call/section 126 rulemakings where EPA initially deferred making
section 126 findings because there would be approved SIPs in place
requiring elimination of significant contribution to downwind States
with emission reductions to commence (although not be concluded) within
the 3-year period (64 FR at 28275).\8\ When the NOX SIP Call
rule was judicially stayed, it was no longer appropriate to defer
making the section 126 findings because there were no longer ``explicit
and expeditious deadlines for compliance with the NOX SIP
Call'' (65 FR 2680). Here, the certainty of SIP submissions (or action
under a CAIR FIP) coupled with explicit and certain compliance
deadlines calling for emissions reductions commencing in the same
timeframe as the section 126 3-year window make it appropriate for EPA
to utilize the section 110(a)(2)(D) remedy.
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\8\ Commenters asserted that all emissions reductions under the
SIP Call would have occurred within the three-year period, but this
is not the case. The date for achieving the budgets provided by the
SIP Call (i.e., the full panoply of annual emission reductions) was
2007, six years from the rule's promulgation date. See 63 FR at
57450.
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We note further that in arguing that EPA must order all emissions
reductions from designated sources which contribute to North Carolina
PM2.5 nonattainment to occur within 3 years, commenters
again ignore the feasibility/cost-effectiveness prong of the
significant contribution test. EPA has found that the CAIR emissions
reductions are highly cost effective based on the compliance schedule
established in that rule, and further found that that compliance
schedule is needed for reasons of technical feasibility (70 FR at
25195-25229). Requiring those reductions to occur on a more rapid
timeframe would thus require considerably more than merely eliminating
significant contribution, and so would exceed the scope of section 126.
Moreover, commenters presented no independent analysis showing that
emission reductions from the designated sources could be obtained cost-
effectively (or even feasibly) within 3 years.\9\
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\9\ The petitioner (in its comments on the proposal) stated that
``[c]ontrols for sources contributing to nonattainment in North
Carolina would be cost effective. EPA concluded as much in the
Proposed CAIR Rule * * *. There is nothing in the Final CAIR Rule
that indicates that adding North Carolina to the list of downwind
states would `break the bank' on cost effectiveness.' '' Comments of
North Carolina Attorney General at p. 30 n. 16. This statement does
not address whether controls on upwind souces would be cost
effective (or feasible) in timeframes more rapid than those found to
be cost effective and feasible in the CAIR.
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Commenters also argued that because a SIP (or the CAIR FIP) could
(or in the case of the FIP, would) reflect a trading component, such a
scheme would not satisfy section 126. The legal argument is that
section 126 requires emission reductions to come from designated
sources, a result not possible to guarantee under a trading regime.
More basically, commenters stated that under a trading regime there was
no certainty that there would be reduction of emissions to North
Carolina, so that at the least, trading should be limited to sources
designated in the petition as contributing significantly to
nonattainment in North Carolina. These arguments again assume that EPA
must grant the petition, which is not our view so long as the
underlying SIP deficiencies are rectified, as explained above. The
arguments also do not address the critical point that availability of
trading options are part of the basis for EPA's findings that
reductions are highly cost effective, and hence are an element of the
finding that emissions contribute significantly to nonattainment.\10\
The approach here is also consistent with the one EPA adopted initially
in the NOX SIP Call/section 126 rulemaking, where EPA
deferred granting section 126 petitions based on the existence of the
NOX SIP Call remedy, which included a trading scheme across
the entire region. 63 FR at 56309-320; see generally 64 FR at 28307-309
(appropriateness of trading as a section 126 remedy). Indeed, as noted
earlier, EPA adopted a trading scheme when granting that earlier
section 126 petition. See 65 FR at 2686; see also Appalachian Power,
249 F. 3d at 1039 noting that EPA's section 126 rule included a cap-
and-trade program. Further discussion of issues relating to the trading
regime are found in section VI.B of this preamble.
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\10\ Indeed, the Petition relies on EPA's analysis of what
constitutes significant contribution, which, as just noted, includes
an assumption that sources participate in a trading scheme to
achieve highly cost-effective emission reductions. The Petition
presents no independent analysis of what would constitute a
significant contribution in the absence of a trading program. It is
thus illogical for the Petition to argue that sources must eliminate
all significant contribution (of which trading is a necessary
element) but must do so without a trading program.
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Some commenters also challenged EPA's basis for proposing to deny
the petition with respect to ozone. EPA did so because no area in North
Carolina is projected to be in nonattainment with the ozone 8-hour
NAAQS in the CAIR base case and therefore upwind states would (by
definition) not be contributing significantly to North Carolina
nonattainment (70 FR at 25162). Commenters argued that EPA is obligated
to consider current conditions, and not base findings on future
conditions, because some areas in North Carolina are presently in
nonattainment. They base this argument on the use of the present tense
in section 126(b) (``emits or would emit any air pollutant in violation
of the prohibition of section 110(a)(2)(D)[(i)]''), plus equitable
consideration of the need to address existing pollution problems.
EPA disagrees. With respect to the statutory language, both section
126(b) and 110(a)(2)(D)(i) do not specify the time by which EPA must
evaluate significance of contribution. Indeed, section 110(a)(2)(D)(i)
is written exclusively in the future tense, and the reference to
``emits or would emit'' in section 126(b) is naturally read as making
clear that controls can apply to both existing and new sources. See
Appalachian Power, 249 F. 3d at 1056-57. Moreover, it makes sense for
significant contribution determinations to be based on conditions at
the time at which potential controls are contemplated. Suppose, for
example, that due to future rules (a clutch of effective mobile source
controls, for example) it can reliably be predicted that an area will
be in attainment although it is not so presently. We do not believe
that the statute mandates immediate assessment of interstate
contribution to address a nonattainment problem that will no longer
exist at the time controls on the interstate emissions would be
implemented. EPA thus has consistently adopted this future-looking
approach when assessing interstate transport, and believes it
reasonable to continue doing so here. See 63 FR at 57375 (adopting this
approach in NOX SIP Call).
[[Page 25337]]
Finally, commenters argued that EPA had ignored the statutory
requirement in section 110(a)(2)(D)(i) (incorporated within section
126(b) and (c)) to prohibit interstate transport that ``interefere[s]
with maintenance'' by North Carolina of the 8-hour ozone NAAQS. They
further stated that a number of North Carolina counties projected to
attain the ozone NAAQS are modeled to do so by narrow margins that
should be deemed to fall within the interfere with maintenance test
based on modeling uncertainties and historic ozone variability patterns
in the counties in question.
EPA stated in the CAIR rule that it would apply the interfere with
maintenance provision in section 110(a)(2)(D) in conjunction with the
significant contribution to nonattainment provision and so did not use
the maintenance prong to separately identify upwind States subject to
CAIR (70 FR at 25193). EPA did this so as not to give the interfere
with maintenance requirement greater weight than the significant
contribution requirement, thus avoiding giving greater weight to the
potentially lesser environmental effect. (See CAIR Response to Comments
Response at p. 63.) EPA's reading also promotes a reasonable balance
between controls on upwind states and in-state controls, an important
objective in applying the section 110 and 126 interstate transport
provisions. (See 70 FR at 25193.) Suppose, for example, that a downwind
area is projected to attain by the effective date of potential section
110(a)(2)(D) (or section 126(b)) controls, so that those controls are
unnecessary to prevent significant contribution to nonattainment.
Applying controls on upwind sources in these circumstances not only
could be environmentally unnecessary, but could even create a perverse
incentive for downwind states to increase local emissions.\11\
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\11\ In this case, the three North Carolina counties mentioned
in comments as warranting upwind reductions to maintain attainment
status, are not only projected to be in attainment in 2010 in both
the base case and the CAIR case (considering emission reductions
occurring under CAIR to prevent significant contribution) and the
2015 base case and CAIR case. In fact, in 2015, these counties
(Mecklenburg, Rowan, and Wake) are projected to be attaining by
comfortable margins. CAIR Modeling TSD App. E Table E-1 (projected
levels of 75.0 ppb, 74.1 ppb, and 70.8 ppb respectively in the 2015
CAIR case, which are all below the levels (3-5 ppb) EPA considered
to raise maintenance concerns in the CAIR. These projections do not
consider the effect of local controls other than those already
enacted. Projected levels in the 2015 base case, i.e. without CAIR
and without further local controls, are likewise comfortably below
the levels which could raise likely possibility of returning to
nonattainment. (It is reasonable to defer consideration of
maintenance issues until 2015 in this anlaysis because the CAIR
remedy is in two parts. There thus will be further emission controls
of NOX between 2010 and 2015 as a result of CAIR which
could subsume any controls adopted for maintenance reasons.) EPA
thus in any case does not beleive that further reductions from
upwind sources is needed to maintain the 8-hour ozone standard in
these counties, and that such emission reductions would not
reasonably balance upwind and local controls. See also Response to
Comment Document addressing these factual issues.
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We note further that even if (against our view) the interference
with maintenance standard were to be applied in cases where there is no
evidence of significant contribution to nonattainment, EPA would still
interpret the standard as requiring consideration of cost and technical
feasibility since EPA already considers these factors as aspects of
significant contribution, and it would make little sense to interpret
the interfere with maintenance language (the lesser environmental
effect) as allowing reductions without considering those same factors.
See also 63 FR 57370 (interfere with maintenance must also reflect
significant contribution to be cognizable under section 110 remedies
for interstate transport. Moreover, given that maintenance addresses
the less significant environmental effect, EPA would likely require
that emission reductions be no less highly cost effective than those
which significantly contribute to nonattainment, and might require that
reductions be even more highly cost effective. It is thus difficult to
see that further emission reductions than those already required under
CAIR would be warranted.
III. What Is EPA's Final Action on the Section 126 Petition?
In determining whether emissions from EGUs in the States named in
the North Carolina section 126 petition contribute significantly to 8-
hour ozone and/or PM2.5 nonattainment and maintenance
problems in North Carolina, EPA is relying on the conclusions drawn in
the final CAIR. As discussed in section I above, North Carolina based
its petition in large part on the analyses for the proposed CAIR--
identifying EGUs in the same upwind States that EPA proposed to link to
North Carolina. The EPA conducted new modeling analyses using updated
emissions inventories for the final CAIR. The EPA also applied a
different value for the threshold contribution level for the air
quality portion of the significant contribution determination for
PM2.5 in the final CAIR. Therefore, the upwind State-to-
downwind State linkages differed in the final CAIR from the proposal.
A. What Is EPA's Final Action With Respect to the 8-Hour Ozone NAAQS?
In its petition, North Carolina requested that EPA make findings
that large EGUs in Georgia, Maryland, South Carolina, Tennessee, and
Virginia contribute significantly to nonattainment in, or interfere
with maintenance by, North Carolina with respect to the 8-hour ozone
NAAQS. In the proposed CAIR, EPA linked these States to 8-hour ozone
air quality problems in Mecklenburg County, North Carolina. In the
final CAIR, EPA's updated analyses project all of North Carolina to be
in attainment for 8-hour ozone in the CAIR 2010 base case. Therefore,
EPA did not link any upwind States to North Carolina with respect to
the 8-hour ozone NAAQS in the final CAIR (See CAIR preamble, Table VI-9
at 70 FR at 25249). Consequently, EPA is denying the section 126
petition with respect to the 8-hour ozone NAAQS.
B. What Is EPA's Final Action With Respect to the PM2.5 NAAQS?
In its petition, North Carolina also requested that EPA make
findings that large EGUs in Alabama, Georgia, Illinois, Indiana,
Kentucky, Michigan, Ohio, Pennsylvania, South Carolina, Tennessee,
Virginia and West Virginia contribute significantly to nonattainment
in, or interfere with maintenance by, North Carolina with respect to
the PM2.5 NAAQS. In the proposed CAIR, these 12 States were
linked to PM2.5 nonattainment problems in North Carolina. In
the final CAIR, as noted, EPA used different, updated modeling and also
applied a 0.2 ([mu]/m3 contribution threshold level rather
than the proposed 0.15 ([mu]/m3 for the air quality portion
of the significant contribution determination (70 FR 25190-25191).
Based on the updated modeling and the 0.2 ([mu]/m3
contribution threshold level, EPA determined in CAIR that only the
following 10 States are significantly contributing to PM2.5
air quality problems in North Carolina: Alabama, Georgia, Indiana,
Kentucky, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and
West Virginia (see preamble Table VI-8; 70 FR at 25248-25249). This
means for purposes of section 126(b) that sources within these States
for which EPA determined highly cost-effective controls are available
are also contributing significantly to PM2.5 nonattainment
problems in North Carolina.
In determining what action to take in response to the
PM2.5 portion of the section 126 petition, EPA is taking
into consideration the CAIR FIPs that are being promulgated today in
conjunction
[[Page 25338]]
with the section 126 action (see section IV below). The FIP action
establishes control requirements for each of the States affected by the
CAIR in order to achieve the emissions reductions required to address
interstate transport.
In the proposal for the section 126 action, for EGUs in States
linked to North Carolina in CAIR (and therefore, for which EPA proposed
a FIP), EPA proposed in the alternative (1) to deny the petition if EPA
issued the final FIPs to address the interstate transport no later than
the final section 126 response or (2) to grant the petition and make
section 126 findings if EPA did not promulgate the FIPs prior to or
concurrently with the final section 126 response. Because the FIPs
would fully address the PM2.5-related interstate transport
problem identified in CAIR and thus eliminate the section 110(a)(2)(D)
violation, there would no longer be a basis for the section 126
findings. In today's action, EPA is finalizing the CAIR FIPs.
Therefore, EPA is denying the section 126 petition for EGUs in States
linked to North Carolina for PM2.5.
For EGUs located in Illinois and Michigan, which are not linked to
North Carolina in the final CAIR with respect to the PM2.5
NAAQS (70 FR 25247-25248), EPA is also denying the petition.
IV. What Is the Federal Implementation Plan for the CAIR?
A. What Is the Legal Framework for the FIPs?
Section 110(c)(1) of the CAA requires the Administrator to
promulgate a FIP within 2 years of: (1) Finding that a State has failed
to make a required submittal, (2) finding that a submittal received
does not satisfy the minimum completeness criteria established under
section 110(k)(1)(A), or (3) disapproving a SIP submittal in whole or
in part. The EPA may issue a FIP any time after making one of these
findings or the Agency may issue a SIP disapproval. However, EPA is
relieved of the obligation to promulgate the FIP if a SIP revision
correcting the deficiency identified is approved by EPA before such a
FIP is promulgated.
As discussed in paragraph I.D.5, in a final rule signed the same
day as CAIR, EPA found that States have failed to submit SIPs to
satisfy the interstate transport requirement under section
110(a)(2)(D)(i) of the CAA for the PM2.5 and 8-hour ozone
NAAQS (70 FR 21147). These findings started the 2-year clock for the
promulgation of a FIP. They did not start a ``sanctions clock'' as
there are no mandatory sanctions associated with the FIP or the finding
of State failure to submit SIPs to satisfy 110(a)(2)(D)(i).
The EPA's authority to act when it has identified deficiencies in
SIPs is derived from multiple sources. First, EPA may promulgate any
measure which it is permitted to issue pursuant to pre-existing
independent statutory authority--for example, the provisions of title
II. That is, EPA may promulgate any measure which it has authority to
issue in a non-FIP context, without reliance on section 110(c). Second,
EPA may invoke section 110(c)'s general FIP authority and act in
accordance with this provision, and the CAA more broadly, to cure a SIP
deficiency. Third, under section 110(c), the courts have held that EPA
may exercise all authority that the State may exercise under the CAA.
The first type of authority, EPA's general authority, is
independent of section 110(c). It is not dependent on or altered by
finding a deficiency in a SIP.
The second type of authority, EPA's general authority under section
110(c), is essentially remedial. The EPA has broad power under that
section to cure a defective State plan. Thus, in promulgating a FIP,
EPA may exercise its own, independent regulatory authority in
accordance with section 110(c), and the CAA more broadly. When EPA has
promulgated a FIP, courts have not required explicit authority for
specific measures: ``We are inclined to construe Congress' broad grant
of power to the EPA as including all enforcement devices reasonably
necessary to the achievement and maintenance of the goals established
by the legislation.'' (South Terminal Corp. v. EPA, 504 F.2d 646, 669.
(1st Cir., 1974)).
Third, the same authority that is exercised by the States under the
CAA in connection with the adoption, implementation, and enforcement of
a SIP may be assumed to be available to the EPA when the agency issues
a FIP, after determining that a State has not adopted a satisfactory
SIP. As the Ninth Circuit has held, when EPA acts in place of the State
pursuant to a FIP under section 110(c), EPA ``stands in the shoes of
the defaulting State, and all of the rights and duties that would
otherwise fall to the State accrue instead to EPA,'' (Central Arizona
Water Conservation District v. EPA, 990 F.2d 1531, at 1541 9th Cir.,
1993). The First Circuit, in an early FIP case, agreed:
* * * the Administrator must promulgate promptly regulations
setting forth an implementation plan for a State should the State
itself fail to propose a satisfactory one. The statutory scheme
would be unworkable were it read as giving to EPA when promulgating
an implementation plan for a State, less than those necessary
measures allowed by Congress to a State to accomplish Federal clean
air goals. We do not adopt any such crippling interpretation.
South Terminal Corporation v. EPA, 504 F.2d 668 (1st Cir.,
1974).
In the case of Federally-recognized Indian Tribes, as we explained
in the CAIR, (70 FR 25167-25168) Tribes are subject to section
110(a)(2)(D), but are not required to submit implementation plans. The
EPA is required to promulgate FIPs for Indian country as necessary or
appropriate to protect air quality. See 40 CFR 49.11(a). Presently,
there are no emissions sources in Indian country within the region
affected by CAIR which would make a FIP necessary or appropriate. In
the event of the planned construction of such a source within Indian
country in the 28-State region subject to CAIR, EPA will work with the
relevant Tribal government to regulate the source through a Tribal or
Federal implementation plan. In the case of an EGU, the EPA anticipates
that the Tribal implementation plan (TIP) or FIP would involve the
participation of the EGU in the EPA administered cap-and-trade program.
The EPA will also work with the Tribe and affected States to determine
how allowances allocated to the Indian country source will affect State
allowance allocations. Because any FIPs for Indian country will
necessarily be tailored to the specific circumstances, today's action
contains no such FIP. The reader is referred to the CAIR for a more
detailed discussion of the potential impact of the CAIR in Indian
country (70 FR 25167-25168, 25315).
B. What Is the Timing and Scope of the CAIR FIP Actions?
As described in the CAIR, EPA views seriously its responsibility to
address the issue of regional transport. Decreases in NOX
and SO2 emissions are needed in the States identified in the
CAIR to enable downwind States to develop and implement plans to
achieve and maintain the PM2.5 and 8-hour ozone NAAQS. The
CAIR identified the amount of emissions reductions necessary for each
State identified in the CAIR to meet their section 110(a)(2)(D)
interstate transport obligations. Implementation of these reductions is
necessary to help downwind States to achieve the NAAQS in order to
provide clean air for their residents.
Therefore, EPA is promulgating FIPs today in conjunction with the
action responding to North Carolina's section 126 petition concerning
transport of
[[Page 25339]]
PM2.5 and 8-hour ozone. The EPA is promulgating these FIPs
at the same time as its response to North Carolina's section 126
petition, which is required to be finalized no later than March 15,
2006 in accordance with a judicially-enforceable consent decree. The
EPA believes it is appropriate to coordinate these two actions because
they both address interstate transport, both apply to EGUs, and because
the States of concern in the section 126 petition are a geographical
subset of the States covered by CAIR. Promulgating the CAIR FIPs at
this time provides a backstop of Federal controls for all States
covered by CAIR for PM2.5 and/or 8-hour ozone, not just
those States that significantly contribute to North Carolina for
PM2.5. This provides a level playing field, giving assurance
to all the affected downwind States that the upwind emissions
reductions required under CAIR will be achieved on time. Further, EPA
believes that the CAIR reductions are best implemented as a unified
program. The EPA believes that States will submit SIP revisions
implementing the CAIR reductions in their States in a unified manner,
and that this reduces workload for the States and provides sources with
more certainty. Finally, promulgating the 8-hour ozone FIP as well as
the PM2.5 FIP as early as possible gives States more
flexibility to take advantage of the abbreviated SIP option discussed
below and in section VI.C. This could further reduce workload for
States to meet the requirements of CAIR. In today's action, EPA is not
promulgating FIPs for any States not covered by CAIR.
The Agency is taking this action to provide a Federal backstop for
CAIR where all States may not be able to develop and submit timely,
approvable SIP revisions. In no way should the FIP for CAIR be viewed
as a sign of any concern about States ultimately making the emission
reductions required under CAIR. There are no sanctions associated with
today's rule, and EPA does not intend CAIR FIPs to have any negative
consequences for the affected States. To the contrary, EPA is
finalizing FIP approaches that are flexible and allow States a full
opportunity to get their SIP revisions in place, with minimal
disruption in transitioning from Federal to State implementation.
Moving quickly to promulgate a FIP is consistent with Congress'
intent that attaining the standard occurs in these downwind
nonattainment areas ``as expeditiously as practicable'' (sections
181(a) and 172(a)(2)(B)). The FIP will help ensure that all emissions
reductions required by CAIR, and the associated environmental benefits,
will be achieved by the CAIR deadlines. In addition, the FIP will
ensure that sources in all States covered by CAIR, regardless of
whether they were included in the North Carolina section 126 petition,
will be required to achieve emissions reductions at the same time.
By finalizing the FIP well before the deadline for States to submit
their CAIR SIPs, EPA is providing States an additional option for
complying with the requirements of CAIR. States planning to adopt the
model trading programs contained in the CAIR rule, can accept the FIP
and significantly reduce the State resources needed to establish a
program to implement the CAIR. Since there are no punitive consequences
for States associated with the FIP or the finding of failure to submit
SIPs to satisfy section 110(a)(2)(D)(i), some States could avoid much
of the time and expense of revising their SIPs to comply with CAIR.
Some States, particularly those subject to the NOX SIP Call,
may need to prepare minor SIP revisions regardless of whether they
accept the FIP implementing the requirements of CAIR; yet the time and
expense involved would be significantly reduced.
The EPA is finalizing, with certain changes described in section
VI.C, the approach that a State can choose to modify the application of
the CAIR FIP through abbreviated SIP revisions. The abbreviated SIP
revisions approach covers specific elements of the FIP trading programs
without submitting full SIP revisions to meet the requirements of CAIR.
By accepting such abbreviated SIP revisions, EPA is providing
additional options for States to comply with CAIR. A State can choose
to retain control of these specific elements of the trading programs,
without submitting a full SIP revision to meet the requirements of
CAIR. As there are no sanctions associated with the FIP, EPA
anticipates that some States will prefer to avoid spending the time and
money necessary to submit a full SIP revision.
The Agency will accept abbreviated SIP revisions for any or all of
the following four specific elements of the FIP trading programs: (1)
Provisions for otherwise unaffected units to opt-in to the FIP trading
programs, (2) allocating annual and/or ozone season NOX, (3)
allocating allowances from the annual NOX Compliance
Supplement Pool (CSP), and (4) including NOX SIP Call
trading sources that are not EGUs under CAIR in the Federal CAIR ozone
season NOX cap-and-trade program. Upon approval of any such
SIP revisions, EPA anticipates that the corresponding portions of the
FIP for that State would be replaced or their application to sources
would be modified.
In offering a framework for abbreviated SIP revisions, the Agency
anticipates that many States will wish to retain control over the
allocation of allowances. Additionally, the Agency recognizes that
States may wish to meet their NOX SIP Call obligations by
allowing NOX budget units (that is, units in the
NOX SIP Call trading program) that are not EGUs under CAIR
to participate in the CAIR ozone season trading program.
In its proposal, the EPA invited comment on the option for States
to submit abbreviated SIPs covering specific elements of the Federal
trading programs. A more complete discussion of the proposed
abbreviated SIP provisions and the comments received is found in
section VI of today's preamble.
Thus, the FIP will increase the options available for a State to
comply with CAIR. Through the CAIR rulemaking actions, EPA has provided
States with a great deal of data and analyses concerning air quality
and control costs, as well as a determination whether upwind sources
contribute significantly to downwind nonattainment under section
110(a)(2)(D). The EPA recognizes that States would face great
difficulties in developing transport SIPs to meet the requirements of
section 110(a)(2)(D) without these data and policies. Indeed, EPA
acknowledged in the CAIR that the Agency's extensive analyses and data,
including the multi-year operation of a federally-funded monitoring
system (and the considerable information generated through that system)
was a necessary element in the Agency's conclusion that it was
appropriate to impose such requirements on States (70 FR 25267).
States have 18 months from the signature date of the CAIR, or until
September 11, 2006, to develop, adopt, and submit revisions to their
SIPs that meet the requirements of CAIR. The EPA will withdraw the FIP
once EPA approves a SIP that meets the CAIR requirements in that State.
Having the FIP in place early provides for a transition to a CAIR
trading program with the greatest continuity, administrative ease, and
cost savings for States that would otherwise develop a program
identical to the model trading programs. The EPA's goal is to have
approvable programs in place that meet the requirements of the CAIR
whether they are in the form of a SIP or a FIP. By finalizing a FIP
today, EPA in no way precludes a State from developing its own SIP to
either adopt the trading
[[Page 25340]]
rules with any discretionary elements allowed by the CAIR or from
meeting the State emissions budget through different measures of the
State's choosing. The EPA has considered the timing of each element of
the FIP process to make sure to preserve each State's freedom to
develop and implement SIPs. In this way, EPA has enhanced each State's
options for complying with the requirements of the CAIR while ensuring
that all the emissions reductions and environmental benefits of the
CAIR are realized.
C. What Are the FIP Control Measures?
In contrast to the SIP process--where selection and implementation
of control measures is the primary responsibility of the State--in the
case of a FIP, it is EPA's responsibility to select the control
measures for sources and assure compliance with those measures. Thus,
while the FIP is designed by EPA to achieve the same total emissions
reductions described in the CAIR, the specific control measures
assigned in the FIP may be different from what a State might choose.
In selecting the control measures for the FIP, EPA is adopting the
same measures used in the CAIR for calculating the required emissions
reductions. In the CAIR, EPA is requiring States to achieve specified
levels of emissions reductions based on levels that are achievable
through implementation of highly cost-effective controls on EGUs. See
the discussion in section IV of the CAIR, ``What Amounts of
SO2 and NOX Emissions Did EPA Determine Should Be
Reduced?'' The EPA is including by reference the technical basis and
supporting rationale for EPA's conclusions as to the highly cost-
effective strategy developed for the CAIR.
The SO2 and NOX cap-and-trade programs for
the FIP are discussed below in section VI. The unit NOX
allocations will be provided in a later action and will meet the State
EGU budgets that are established in the CAIR for States that choose to
meet the required emissions reductions by controlling EGUs only.
D. When and How Will EPA Remove the FIP Requirements if EPA Approves a
SIP To Meet the CAIR?
As discussed previously, EPA is finalizing the FIP today
concurrently with EPA's response to the section 126 petition from North
Carolina. The EPA intends to withdraw the FIP in a State in
coordination with EPA's approval of a SIP for that State that meets the
CAIR requirements. It is EPA's preference that States regulate sources
to control the interstate transport; therefore, EPA will work with
States to help ensure that the FIP would not need to be implemented.
The EPA intends to withdraw the FIP requirements as soon as
practical after receiving approvable CAIR SIP revisions. The EPA will
work with States to ensure a timely withdrawal of the FIP and recording
of State NOX allocations in source accounts (for States
choosing to allocate NOX allowances). A more detailed
discussion of the timing for recording allocations is found in section
VI.F.1 of this preamble.
V. Emission Reduction Requirements for the CAIR FIP
A. Introduction
In the CAIR (70 FR 25162), EPA determined that SO2 and
NOX emissions from sources in the District of Columbia and
the following 23 States contribute significantly to downwind
PM2.5 nonattainment: Alabama, Florida, Georgia, Illinois,
Indiana, Iowa, Kentucky, Louisiana, Maryland, Michigan, Minnesota,
Mississippi, Missouri, New York, North Carolina, Ohio, Pennsylvania,
South Carolina, Tennessee, Texas, Virginia, West Virginia, and
Wisconsin.
In a separate rulemaking signed the same day as this action, EPA
finds that SO2 and NOX emissions from sources in
Delaware and New Jersey also contribute significantly to downwind
PM2.5 nonattainment.
In the CAIR, the Agency also determined that the District of
Columbia and the following 25 States contribute significantly to
downwind 8-hour ozone nonattainment: Alabama, Arkansas, Connecticut,
Delaware, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey,
New York, North Carolina, Ohio, Pennsylvania, South Carolina,
Tennessee, Virginia, West Virginia, and Wisconsin.
The EPA established CAIR annual SO2 and NOX
emission reduction requirements for States that contribute
significantly to downwind PM2.5 nonattainment and
established NOX ozone season emission-reduction requirements
for States that contribute significantly to downwind 8-hour ozone
nonattainment. The CAIR requires upwind States to revise their SIPs to
include control measures to reduce emissions of SO2 and/or
NOX to meet the requirements in CAIR (SO2 is a
precursor to PM2.5 formation, and NOX is a
precursor to both ozone and PM2.5 formation).
The CAIR requires that the emission reductions be implemented in
two phases. The first phase of CAIR NOX reductions starts in
2009 (covering 2009-2014) and the first phase of CAIR SO2
reductions starts in 2010 (covering 2010-2014); the second phase of
CAIR reductions for both NOX and SO2 starts in
2015, covering 2015 and thereafter.
In CAIR, EPA determined the extent of reductions required to
eliminate significant contribution (i.e., to remove the section
110(a)(2)(D) violation). EPA interprets significant contribution as a
specific level of emissions that can be feasibly reduced in a highly
cost-effective manner. The required reductions are expressed as
statewide budgets of SO2 and NOX emissions.
Regionwide emissions trading programs for large EGUs (within the
constraints of the emissions caps based on these statewide emission
budgets \12\) provide one option for eliminating significant
contribution and thus also eliminating the section 110(a)(2)(D)
violation. The violation is eliminated once a State adopts a SIP
containing the CAIR trading programs (or a SIP containing other
emission reduction options meeting the requirements specified in CAIR),
or EPA promulgates a FIP to achieve those same reductions. The CAIR
includes model rules for regionwide EGU SO2 annual,
NOX annual, and NOX ozone season emission cap-
and-trade programs. States can choose to adopt these model rules (the
CAIR SIP model trading rules) to obtain the required reductions in a
flexible and cost-effective manner.
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\12\ It should be noted that the SO2 trading program
provides that sources may bank pre-2010 title IV SO2
allowances to be used for compliance with CAIR. These provisions
encourage sources to make early emission reductions and ease the
transition to the CAIR SO2 program, and as a result,
emissions may not reflect the emission caps in any given year.
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Today, EPA is finalizing FIPs that implement the emission reduction
requirements of the CAIR in all States covered by CAIR. The Agency is
promulgating today's FIPs to provide a federal backstop for CAIR.
EPA decided to adopt, as the FIP for each State in the CAIR region,
the SIP model trading programs in the final CAIR, modified slightly to
allow for federal instead of State implementation.\13\ The specific
requirements of the FIP trading programs are explained in greater
detail in section VI below.
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\13\ Today's action includes revisions to the CAIR SIP model
rules as described in section VII in this preamble. For the FIP
trading programs the Agency adopts the SIP model rules as finalized
today and modified for federal implementation.
---------------------------------------------------------------------------
The CAIR FIPs will require SO2 annual and NOX
annual emission
[[Page 25341]]
reductions from EGUs in States contributing significantly to
PM2.5 nonattainment and NOX ozone season emission
reductions from EGUs in States contributing significantly to ozone
nonattainment through participation in the regionwide cap-and-trade
programs. The requirements of these trading programs were developed in
the SIP model trading rules. The SIP model trading rules provide
flexibility to the implementing organization only in certain specific
areas. In adopting these model trading programs as FIPs, the Agency
adopts the requirements of the model trading rules. As the implementing
organization, therefore, it has only the same flexibility that is
available to States that choose to implement the model trading
programs.
The CAIR FIP trading programs will achieve the emission reductions
required by CAIR by the deadlines established in that rule, with the
same highly cost-effective EGU control measures forming the basis for
the emission budgets. The regionwide emission reduction requirements,
State emission budgets and trading rules that are the basis for today's
FIPs were established in the final CAIR rule. They were developed
through a process that involved significant public participation. In
the CAIR rulemaking, EPA determined that the CAIR emission reduction
requirements can be met in a highly cost-effective manner using
regionwide SO2 and NOX cap-and-trade programs for
large EGUs (70 FR 25195-25229). The incentives provided by such
regionwide cap-and-trade programs encourage economically efficient
compliance over the entire region.
The applicability provisions of the FIPs promulgated in today's
final rule, which cover large EGUs, are identical to the applicability
provisions in the CAIR SIP model rules including the revisions
finalized today. See sections VI.E and VII in today's preamble for
detailed discussion of applicability. The FIPs and the CAIR SIP model
rules apply to large EGUs because EPA determined that their emissions
can be reduced through the application of highly cost-effective
controls (70 FR 25195-25229).
During development of the CAIR, the Agency considered the
interactions between the existing title IV Acid Rain Program and the
new CAIR (see the preamble to the final CAIR for discussion, 70 FR
25290). As explained in CAIR, ``In the absence of an approach for
taking account of the title IV program, a new program (i.e., the CAIR)
that imposes a significantly tighter cap on SO2 emissions
for a region encompassing most of the sources and most of the
SO2 emissions covered by title IV would likely result in a
significant excess in the supply of title IV allowances, a collapse of
the price of title IV allowances, disruption of operation of the title
IV allowance market and the title IV SO2 cap-and-trade
system, and the potential for increased SO2 emissions.''
These impacts would undermine the efficacy of the title IV program and
could erode confidence in emissions trading programs in general. For
these same reasons, today's FIP SO2 trading program is
integrated with the title IV program (see discussion of FIP
SO2 trading program in section VI, below). EPA was
petitioned for and granted reconsideration of CAIR on claims that
inequities result from applying the SO2 allocation
methodology (which is based on title IV allocations). In the notice of
final action on reconsideration, signed the same day as this action,
EPA decided not to alter the approach taken in the final CAIR (see
further discussion of reconsideration in section VI.G, below).
Today's FIPs implement the CAIR emission reduction requirements by
adopting the CAIR SIP model trading rules; the FIPs do not develop new
emission reduction requirements or trading programs. For these reasons,
the Agency did not re-open in the FIP rulemaking any elements of the
reduction requirements and trading programs (except for the elements
such as NOX allocations and opt-ins where States had
flexibility) that were determined in the CAIR NFR and that were not
modified by today's rule. By adopting as FIPs the CAIR SIP model
trading programs, the Agency intends to implement the requirements of
CAIR in a highly cost-effective manner and to ease the transition for
sources that might initially be covered by the FIP programs and
subsequently be covered by SIP programs that also adopt the model
trading rules.
The Agency is promulgating these FIPs to provide a Federal backstop
for CAIR. In no way should the FIPs be viewed as a sign of any concern
about States ultimately making the emission reductions required under
CAIR. There are no sanctions associated with today's rule, and EPA does
not intend CAIR FIPs to have any negative consequences for the affected
States. To the contrary, EPA is finalizing FIP approaches that are
flexible and allow States a full opportunity to get their SIP revisions
in place, with minimal disruption in transitioning from Federal to
State implementation.
B. Regionwide SO2 and NOX Caps
Today's final rule provides a federal backstop for achieving the
CAIR emission reduction requirements. Today's rule does not establish
those reduction requirements, which were established in the CAIR
rulemaking.
In the preamble to the CAIR NFR, the Agency explained how it
determined regionwide SO2 and NOX emissions caps.
See section IV in the CAIR NFR preamble (70 FR 25195-25229). The EPA
also summarized the process for determining the regionwide CAIR
SO2 and NOX emissions caps in the preamble to the
proposed CAIR FIP (70 FR 49722). The CAIR FIP proposal did not reopen
for public comment EPA's determination of the CAIR regionwide caps or
the caps themselves. The EPA received a few comments on the CAIR
regionwide caps during the public comment process on the proposed FIP.
Those comments are not within the scope of today's final rule. As
discussed above, in today's FIP rule the Agency is implementing the
emission reduction requirements (including regionwide SO2
and NOX caps) that EPA developed in the CAIR rulemaking
through a process that included extensive public participation.
The CAIR regionwide caps (including the States of Delaware and New
Jersey) are: for SO2, 3.7 million tons and 2.6 million tons
in 2010 and 2015, respectively; for NOX annual, 1.5 million
tons and 1.3 million tons in 2009 and 2015, respectively; for
NOX ozone season, 0.6 million and 0.5 million tons in 2009
and 2015, respectively.
C. State SO2 Emission Budgets
In the preamble to the final CAIR, the EPA explained how it
determined CAIR State annual SO2 emission budgets (see
section V.A.1.a of the CAIR NFR preamble, 70 FR 25229-25230; see also
the rulemaking, signed the same day as this action, to include Delaware
and New Jersey in CAIR for PM2.5). The EPA also summarized
the process for determining CAIR State SO2 budgets in the
preamble to the proposed FIP (70 FR 49723). The CAIR FIP proposal did
not reopen for public comment EPA's determination of the CAIR State
SO2 budgets or the budgets themselves. As discussed above,
in today's FIP rule, the Agency is implementing the emission reduction
requirements (including State SO2 emission budgets) that EPA
developed in the CAIR rulemaking through a process that included
extensive public participation.
Today's final FIP rule will achieve the required SO2
emission reductions
[[Page 25342]]
through a regionwide SO2 cap-and-trade program for EGUs. As
discussed further in section VI, below, the CAIR FIP SO2
cap-and-trade program will rely on title IV allowances, which sources
will retire at specified ratios generally greater than 1-to-1 for
compliance with the CAIR FIP SO2 program. Congress has
already allocated title IV SO2 allowances to sources in
perpetuity. State SO2 emissions budgets would not affect the
distribution of SO2 allowances for the CAIR FIP
SO2 trading program (because SO2 allowances are
already allocated to sources) and are not directly relevant for today's
final FIP rule.
After EPA finalized CAIR, the Agency was petitioned for and granted
reconsideration on claims that inequities result from applying the CAIR
SIP model rule SO2 allocation methodology (which is based on
existing title IV allocations). The Agency announced its decision to
reconsider this issue in a Federal Register action dated December 2,
2005 (70 FR 72268) and is taking final action on the reconsideration in
a separate action signed the same day as this action. EPA decided not
to alter the approach taken in the final CAIR (see further discussion
of reconsideration in section VI.G, below).
A few commenters on the proposed CAIR FIP expressed concern with
the use of title IV to establish State SO2 emission budgets.
The FIP State SO2 budgets and the FIP unit SO2
allocations are both based on existing title IV allocations. The EPA
responds to comments on the budgets and allocations for the FIP
together in section VI.G, below.
The Agency is finalizing its proposed approach regarding
SO2 budgets for the CAIR FIP SO2 trading
programs.
D. State NOX Annual and NOX Ozone Season Emission Budgets
In the preamble to the final CAIR, the EPA explained how it
determined CAIR State NOX annual and NOX ozone
season emission budgets (see section V.A.1.a of the CAIR NFR preamble,
70 FR 25230-25233; see also the rulemaking, signed the same day as this
action, to include Delaware and New Jersey in CAIR for
PM2.5).
The EPA also summarized the process for determining CAIR State
NOX annual and NOX ozone season budgets in the
preamble to the proposed FIP (70 FR 49723). The CAIR FIP proposal did
not reopen for public comment EPA's determination of the CAIR State
NOX annual and NOX ozone season budgets or the
budgets themselves. As discussed above, in today's FIP rule the Agency
is implementing the emission reduction requirements (including State
NOX annual and NOX ozone season emission budgets)
that EPA developed in the CAIR rulemaking through a process that
included extensive public participation.
After EPA finalized CAIR, the Agency was petitioned for and granted
reconsideration on the use of fuel adjustment factors in determining
CAIR State NOX annual and NOX ozone season
emission budgets. The EPA announced its decision to reconsider this
issue in a Federal Register notice dated December 2, 2005 (70 FR 72268)
and is taking final action on the reconsideration in a separate action
signed the same day as this action. EPA decided not to alter the
approach taken in the final CAIR.
A commenter on the proposed CAIR FIP raised concerns regarding the
use of fuel adjustment factors in determining State NOX
emission budgets. Concerns raised by the commenter with respect to
EPA's use of fuel adjustment factors in determining State emission
budgets are the same issues that the Agency is addressing in the
context of the CAIR reconsideration process. The Agency's responses to
this commenter on the use of fuel adjustment factors in setting FIP
State NOX emission budgets are addressed in the CAIR
reconsideration notice. See the December 2, 2005 Federal Register
notice announcing the reconsideration (70 FR 72268) as well the notice
of final action on reconsideration signed the same day as this action.
Some commenters addressed the use of fuel adjustment factors in the
proposed FIP methodology for unit-by-unit NOX allocations.
The Agency's responses regarding the use of fuel adjustment factors in
the NOX allocation methodology are discussed in section VI.F
in this preamble.
The State annual and ozone season EGU NOX budgets for
today's final CAIR FIP trading programs are the same as the budgets in
the final CAIR. For each State affected by the FIP NOX
trading programs, the State NOX budgets are the total amount
of allowances \14\ that the Agency will allocate to sources in the
State or that States will allocate using an abbreviated SIP revision.
See section VI.F, below, for EPA's methodology and schedule for
allocating NOX allowances to affected sources.
---------------------------------------------------------------------------
\14\ As in CAIR, a NOX annual allowance will
authorize the emission of a ton of NOX during a calendar
year, and a NOX ozone season allowance will authorize the
emission of a ton of NOX during an ozone season.
---------------------------------------------------------------------------
Table V-1 shows the State NOX emission budgets for the
final FIP NOX cap-and-trade program. These are the same
State NOX budgets as in the final CAIR (see Table V-2 in the
CAIR NFR preamble (70 FR 25231); see also the rulemaking, signed the
same day as this action, to include Delaware and New Jersey in CAIR for
PM2.5).
Table V-1.--CAIR FIP NOX Annual Electric Generating Units Budgets
[tons]
------------------------------------------------------------------------
State NOX
State NOX annual
State annual budget 2015
budget 2009- and
2014 thereafter
------------------------------------------------------------------------
Alabama....................................... 69,020 57,517
Delaware...................................... 4,166 3,472
District of Columbia.......................... 144 120
Florida....................................... 99,445 82,871
Georgia....................................... 66,321 55,268
Illinois...................................... 76,230 63,525
Indiana....................................... 108,935 90,779
Iowa.......................................... 32,692 27,243
Kentucky...................................... 83,205 69,337
Louisiana..................................... 35,512 29,593
Maryland...................................... 27,724 23,104
Michigan...................................... 65,304 54,420
Minnesota..................................... 31,443 26,203
Mississippi................................... 17,807 14,839
Missouri...................................... 59,871 49,892
New Jersey.................................... 12,670 10,558
New York...................................... 45,617 38,014
North Carolina................................ 62,183 51,819
Ohio.......................................... 108,667 90,556
Pennsylvania.................................. 99,049 82,541
South Carolina................................ 32,662 27,219
Tennessee..................................... 50,973 42,478
Texas......................................... 181,014 150,845
Virginia...................................... 36,074 30,062
West Virginia................................. 74,220 61,850
Wisconsin..................................... 40,759 33,966
-------------------------
CAIR Region Total........................... 1,521,707 1,268,091
------------------------------------------------------------------------
Table V-2 shows the State NOX ozone season emission
budgets for the final CAIR FIP NOX ozone season cap-and-
trade program. These are the same State NOX ozone season
budgets as in the final CAIR (see Table V-4 in the CAIR NFR preamble
(70 FR 25233).
Table V-2.--CAIR FIP NOX Ozone Season Electricity Generating Unit
Budgets
[tons]
------------------------------------------------------------------------
State NOX
State NOX ozone
ozone season
State * season budget 2015
budget 2009- and
2014 thereafter
------------------------------------------------------------------------
Alabama....................................... 32,182 26,818
Arkansas...................................... 11,515 9,596
Connecticut................................... 2,559 2,559
Delaware...................................... 2,226 1,855
District of Columbia.......................... 112 94
Florida....................................... 47,912 39,926
[[Page 25343]]
Illinois...................................... 30,701 28,981
Indiana....................................... 45,952 39,273
Iowa.......................................... 14,263 11,886
Kentucky...................................... 36,045 30,587
Louisiana..................................... 17,085 14,238
Maryland...................................... 12,834 10,695
Massachusetts................................. 7,551 6,293
Michigan...................................... 28,971 24,142
Mississippi................................... 8,714 7,262
Missouri...................................... 26,678 22,231
New Jersey.................................... 6,654 5,545
New York...................................... 20,632 17,193
North Carolina................................ 28,392 23,660
Ohio.......................................... 45,664 39,945
Pennsylvania.................................. 42,171 35,143
South Carolina................................ 15,249 12,707
Tennessee..................................... 22,842 19,035
Virginia...................................... 15,994 13,328
West Virginia................................. 26,859 26,525
Wisconsin..................................... 17,987 14,989
-------------------------
CAIR Region Total........................... 567,744 484,506
------------------------------------------------------------------------
* For States that have lower EGU budgets under the NOX SIP Call than
their 2009 CAIR budget, table V-2 includes their SIP Call budget. For
Connecticut, the NOX SIP Call budget is also used for 2015 and beyond.
E. State NOX Annual Compliance Supplement Pool
The CAIR established State Compliance Supplement Pools (CSP) of
NOX annual allowances of vintage 2009. In the FIP NPR, the
Agency proposed to include in the CAIR FIP NOX trading
program the same State CSP amounts as were established in CAIR.
The Agency received several comments on its proposal to include the
CAIR CSPs in the CAIR FIP NOX trading program. The EPA
responds to comments on inclusion of the CAIR CSPs in the FIP program,
as well as comments on EPA's proposed method for distributing CSP
allowances to sources, in section VI.I in today's preamble, below.
The Agency is finalizing its proposal to include the CAIR CSPs in
the FIP trading programs. Table V-3 shows the State CSP amounts for the
final CAIR FIP NOX trading program. These are the same CSP
amounts as shown in the CAIR NFR preamble (see Table V-3 in the CAIR
NFR at 70 FR 25232; see also the rulemaking, signed the same day as
this action, to include Delaware and New Jersey in CAIR for
PM2.5).
The CSPs provide, for each affected State, a pool of CAIR
NOX annual allowances from which EPA, or a State using an
abbreviated SIP revision, can distribute allowances for use in
complying with the CAIR FIP NOX annual trading program (see
section VI.I in today's preamble for further discussion regarding
distribution of CSP allowances).
Table V-3.--CAIR FIP NOX Annual Compliance Supplement Pool
[tons]
------------------------------------------------------------------------
Compliance
State supplement
pool
------------------------------------------------------------------------
Alabama.................................................... 10,166
Delaware................................................... 843
District Of Columbia....................................... 0
Florida.................................................... 8,335
Georgia.................................................... 12,397
Illinois................................................... 11,299
Indiana.................................................... 20,155
Iowa....................................................... 6,978
Kentucky................................................... 14,935
Louisiana.................................................. 2,251
Maryland................................................... 4,670
Michigan................................................... 8,347
Minnesota.................................................. 6,528
Mississippi................................................ 3,066
Missouri................................................... 9,044
New Jersey................................................. 660
New York................................................... 0
North Carolina............................................. 0
Ohio....................................................... 25,037
Pennsylvania............................................... 16,009
South Carolina............................................. 2,600
Tennessee.................................................. 8,944
Texas...................................................... 772
Virginia................................................... 5,134
West Virginia.............................................. 16,929
Wisconsin.................................................. 4,898
------------
Total.................................................. 199,997
------------------------------------------------------------------------
VI. CAIR FIP NOX and SO2 Cap-and-Trade Programs
for EGUs
A. Purpose of CAIR FIP NOX and SO2 Cap-and-Trade Programs and
Relationship to the CAIR
In today's action, EPA is finalizing CAIR FIP NOX and
SO2 cap-and-trade programs for EGUs as the Implementation
Plan remedy for CAIR. The Agency is finalizing 3 separate CAIR FIP cap-
and-trade programs: (1) SO2 annual; (2) NOX
annual; and (3) NOX ozone season. The EPA decided to adopt,
as the FIP for each State in the CAIR region, the model cap-and-trade
programs in the final CAIR, modified slightly to allow for Federal
instead of State implementation. \15\ Emissions cap-and-trade programs
are a proven method for achieving highly cost-effective emissions
reductions while providing regulated sources of emissions with
flexibility in adopting compliance strategies. The incentives provided
by regionwide cap-and-trade programs encourage economically efficient
compliance over the entire region. The specific elements of the 3
trading programs in the FIP were developed by EPA, with significant
public participation, during the CAIR development process.
---------------------------------------------------------------------------
\15\ Today's action includes revisions to the CAIR SIP model
rules as described in section VII in this preamble. For the FIP
trading programs the Agency adopts the SIP model rules as finalized
today and modified for federal implementation.
---------------------------------------------------------------------------
Participation in the new CAIR FIP NOX and SO2
cap-and-trade programs is mandatory for all sources covered by the
final CAIR FIP. See section VI.E in today's preamble for discussion of
affected sources (applicability). Regulatory text for today's new CAIR
FIP NOX and SO2 cap-and-trade programs will be
located in part 97 in title 40 of the CFR.
The CAIR established State EGU emissions budgets that each State
will use to determine its required emissions reductions. Today's final
CAIR FIP cap-and-trade programs set specific rules for EGUs to decrease
NOX and SO2 emissions sufficiently to achieve
emission reductions that are required under CAIR. As explained above in
section IV, EPA will withdraw a State's FIP in coordination with
approval of a SIP implementing the requirements of CAIR.
States may choose to meet their emission reduction obligations
under CAIR by adopting, as part of their SIPs, the model cap-and-trade
rules set forth in the CAIR and participating in the EPA administered
trading programs. Any such participation will be fully integrated with
the CAIR FIP NOX and SO2 cap-and-trade programs
that are finalized in today's action.
In order to be eligible to participate in an emissions cap-and-
trade program, the Agency believes that there are two principal
criteria that sources must meet, as stated in the supplemental proposal
for the NOX SIP Call (62 FR 25923). The first criterion
requires that sources be able to account accurately and consistently
for all of their emissions to ensure the trading program goal of
maintaining emissions within a cap. Emissions monitoring must be
accurate and consistent among all sources so that each allowance turned
in, represents its assigned amount of emissions. The second criterion
for participation in a trading program is the ability to identify a
responsible party for each regulated source who would be accountable
for demonstrating and ensuring compliance with the program's
provisions. The EPA believes that today's rule meets those criteria.
The Agency also believes that, because
[[Page 25344]]
today's rule contains the same mandatory program elements as are in the
part 96 CAIR SIP model trading programs and is designed to meet the
same environmental goals and caps sources at the same levels as those
model trading programs, it is appropriate to integrate today's CAIR FIP
with the CAIR SIP trading programs.
Sources subject to trading programs under the FIP and sources in
States choosing to participate in the EPA-administered CAIR SIP trading
programs will be able to trade allowances with one another under common
emissions caps across participating States. Integration of the trading
programs reduces the possibility of inconsistent or conflicting
deadlines or requirements, increases the potential cost savings for
sources, and streamlines program administration. Unnecessary
inconsistency in trading programs could hamper sources' ability to plan
and achieve the needed reductions as cost effectively as possible. In
addition, if a State submits and EPA approves a SIP revision including
the CAIR SIP model trading programs after EPA establishes trading
programs under today's FIP, disruptions to sources that shift from
regulation under a FIP to regulation under a SIP will be minimized due
to the consistency between the respective CAIR SIP and FIP programs.
The EPA establishes (in part 97) the geographic boundaries of the
common trading programs as those States that submit SIP revisions in
response to the CAIR implementing the EPA-administered trading programs
or that are subject to FIPs. The EPA will administer these common
trading programs in collaboration with affected States.
For the final CAIR FIP NOX and SO2 cap-and-
trade programs, EPA adopted the CAIR model trading programs with slight
revisions to allow for Federal implementation. The FIP trading programs
are thus virtually identical to the CAIR SIP model trading programs.
The CAIR FIP cap-and-trade programs include all of the mandatory
elements that States are required to include in their SIPs in order to
participate in the EPA-administered cap-and-trade programs for CAIR.
The Agency is finalizing, with certain changes described in section
VI.C, the proposal to provide States that are subject to today's CAIR
FIP requirements with the option to submit abbreviated SIP revisions
covering specific elements of the FIP trading programs without
submitting full SIP revisions to meet the requirements of CAIR. See
section VI.C in this preamble for further discussion of abbreviated SIP
revisions.
B. Relationship of Emissions Trading Programs to Section 126 Relief
In section II of today's preamble, EPA responds to commenters who
argued that, because a CAIR SIP could or the CAIR FIP would reflect a
trading component, such an implementation plan would not satisfy
section 126 as a matter of law. As explained in section II, these
arguments assume that the Agency must grant the petition, which is not
EPA's view so long as the underlying SIP deficiencies are rectified.
Although EPA is denying the section 126 petition as discussed
elsewhere in today's preamble, based on modeling projections the Agency
believes that sources in States upwind of North Carolina will reduce
emissions under the CAIR trading regime.
As discussed in the FIP NPR (70 FR 49737), EPA believes that upwind
sources in States that were found to contribute significantly to North
Carolina nonattainment will in fact reduce emissions of
PM2.5 precursors under the CAIR trading regime. The Agency
explained that its Integrated Planning Model (IPM) \16\ analysis
conducted for the CAIR NFR--which assumes emissions trading--projects
decreases in annual SO2 and NOX emissions under
CAIR compared to the Base Case (i.e., compared to projections without
CAIR) in both 2010 and 2015 for each of the States found in the CAIR
NFR analysis to contribute significantly to nonattainment of the
PM2.5 NAAQS in North Carolina.
---------------------------------------------------------------------------
\16\ The IPM is a multiregional, dynamic, deterministic linear
programming model of the U.S. electric power sector. The Agency uses
IPM to examine costs and, more broadly, analyze the projected impact
of environmental policies on the electric power sector in the 48
contiguous States and the District of Columbia.
---------------------------------------------------------------------------
The EPA further explained that the Agency's CAIR modeling--which,
again, assumes interstate emissions trading--projects that under CAIR
by 2010, with the projected emission reductions, there will be no
remaining PM2.5 nonattainment counties in North Carolina.
Thus, the emission reductions under CAIR are projected to be sufficient
to eliminate PM2.5 nonattainment in North Carolina and,
necessarily, no States will contribute to nonattainment.\17\ This
discussion of the Agency's analysis of CAIR is informational and is not
intended to reopen or reconsider any issue related to that analysis.
---------------------------------------------------------------------------
\17\ IPM emissions modeling conducted for the final CAIR is in
the CAIR docket EPA-HQ-OAR-2003-0053; air quality modeling results
are in the Air Quality Modeling Technical Support Document for the
Final Clean Air Interstate Rule, March 2005, Appendix F; see also
Table VI-10 to the preamble of the CAIR final rule at 70 FR 25251.
---------------------------------------------------------------------------
As discussed in section II in today's preamble, some commenters
argued that relief under section 126 must occur within 3 years and
therefore that the CAIR emission reductions do not satisfy section 126
because although those reductions commence within 3 years they are
phased in over a longer time. We respond to legal arguments in section
II, above.
In any case, the EPA believes that many emission sources in States
upwind of North Carolina will install NOX and/or
SO2 emission control technology before 2009. As explained
above, EPA modeling projects that North Carolina will come into
attainment of the PM2.5 standards by 2010 under CAIR,
including trading programs. Much of the emission reductions that will
bring North Carolina counties into attainment with the PM2.5
standards will result from use of selective catalytic reduction (SCR)
for NOX control and flue gas desulphurization (FGD) for
SO2 control on units in upwind States. For the following
reasons, EPA believes that many of these controls will be installed
before 2009.
Early emission reductions occur for several reasons. Today's CAIR
FIP trading rules and the CAIR SIP model trading rules include
incentives for early emission reductions. For example, sources may bank
title IV SO2 allowances into the CAIR FIP or CAIR SIP
SO2 trading programs (see section VI.I, below, for further
discussion of incentives for early reductions). Another reason why
sources may reduce emissions early is the need to stagger control
installations at plants where multiple units will be retrofitted to
avoid operational disruptions.
As discussed elsewhere in today's preamble, the 10 States that EPA
determined in CAIR contribute to North Carolina's nonattainment of the
PM2.5 standards are Alabama, Georgia, Indiana, Kentucky,
Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West
Virginia. Table VI-1, below, summarizes for these 10 States the total
coal-fired electric generating capacity expected to be on-line by the
end of 2006 as well as the portion of that capacity expected to be
controlled with SCR or FGD.\18\ In addition, the table
[[Page 25345]]
summarizes for the 10 States the generating capacity that EPA expects
to be controlled with SCR or FGD through the end of 2008 based on
research that the Agency conducted for today's action.\19\ The table
also summarizes for the 10 States the generating capacity that EPA
projects will be controlled with SCR or FGD by the end of 2010 based on
IPM modeling projections.\20\ As Table VI-1 indicates, many of the
emission controls that EPA's modeling projects will be installed by the
end of 2010 are actually likely to be installed before 2009.
---------------------------------------------------------------------------
\18\ Generating capacity through the end of 2006 (with capacity
greater than 25 MWe) based on EPA's v.2.1.9 NEEDS database (2004).
Capacity expected to be controlled with SCR or FGD by the end of
2006 based on research EPA conducted on planned control retrofits on
coal-fired units.
\19\ This includes expected capacity (greater than 25 MWe) with
control retrofits through the end of 2008 based on EPA research of
planned control retrofits on coal-fired units. Research included
searching the Internet for company announcements regarding contracts
for control retrofits. For 2007 and 2008 retrofits EPA focused its
research on units with capacity greater than 100 MWe; if smaller
units were included, we might have identified additional planned
retrofits.
\20\ These 2010 projections are from IPM modeling conducted for
the final CAIR and include units with capacity greater than 25 MWe
(IPM version 2.1.9, 2004).
Table VI-1.--SCR and FGD Summary for 10 States Contributing to North Carolina's Nonattainment of the PM2.5
Standards
----------------------------------------------------------------------------------------------------------------
Expected capacity with Expected capacity with Projected capacity with
Total generating capacity by end of emission controls by emission controls by emission controls by
2006 end of 2006 end of 2008 end of 2010 under CAIR
----------------------------------------------------------------------------------------------------------------
132 GW (466 units)................... SCR: 67 GW (126 units). SCR: 70 GW (130 units). SCR: 82 GW (184 units)
FGD: 48 GW (111 units). FGD: 64 GW (137 units). FGD: 73 GW (167 units)
----------------------------------------------------------------------------------------------------------------
EPA believes that even more controls may be installed before 2009
than were identified in the Agency's research. It is reasonable to
suppose that, once CAIR SIP revisions are submitted and approved,
additional plans for control retrofits will be adopted due to SIP
revisions.
Some commenters supported the use of trading programs in connection
with a section 126 remedy and some did not. A commenter, using South
Carolina as an example, questioned why emissions can be above State
budget amounts through allowance trading. This commenter points out
that EPA's IPM modeling for CAIR projects emissions in South Carolina
above the State's 2015 SO2 emissions budget 5 years after
2015 and asserts that emissions over the State budget ``will still
contribute to attainment problems in North Carolina.'' However, as
explained above, based on modeling for CAIR--which assumes interstate
emissions trading--by 2010 there will be no remaining PM2.5
nonattainment counties in North Carolina. In other words, the EGU
emission reductions projected by IPM to occur under the CAIR trading
regimes are the amounts that are projected to be sufficient to bring
North Carolina into attainment in 2010, regardless of whether for some
States emissions are projected to be above the State EGU emissions
budgets.
C. Abbreviated SIP Revisions Covering Elements of the CAIR FIP Cap-and-
Trade Programs
In the FIP NPR (70 FR 49720, 49727-49739), the Agency proposed to
provide States that are covered by CAIR with the option to submit
abbreviated SIP revisions covering specific elements of the CAIR FIP
trading programs without submitting full SIP revisions to meet the
requirements of CAIR. By proposing to accept such abbreviated SIP
revisions, the Agency intended to increase the options available for
States to comply with CAIR. A State could choose to retain control of
these specific elements of the trading programs without submitting a
full SIP revision.
As proposed, a State would submit an abbreviated SIP revision that
would modify the application of certain elements of the FIP in order to
better meet the needs of the State. The EPA proposed that a State could
choose to modify the application of the FIP through abbreviated SIP
revisions that would do any or all of the following:
Make applicable, to the State, provisions in the FIP for
otherwise unaffected units to opt into the FIP trading programs,
Allow the State, rather than EPA, to allocate
NOX annual and/or NOX ozone season allowances,
Allow the State, rather than EPA, to allocate allowances
from the NOX annual Compliance Supplement Pool (CSP), and
Include NOX SIP Call trading sources that are
not EGUs under CAIR in the CAIR FIP NOX ozone season cap-
and-trade program.
As there are no sanctions or penalties for leaving the CAIR FIP
trading programs in place, EPA anticipates that some States may prefer
to avoid spending the time and money necessary to submit a full SIP
revision and may just modify the application of certain parts of the
FIP.
The final CAIR (70 FR 25162) requires States to submit SIP
revisions complying with the CAIR requirements to the Agency by
September 11, 2006 and to submit the initial set of NOX
allocations by October 31, 2006.
In the CAIR FIP NPR, the Agency proposed that States choosing to
submit abbreviated SIP revisions addressing the specific elements
identified in the proposal would be required to submit such revisions
to EPA by March 31, 2007, and--if choosing to address NOX
allocations in an abbreviated SIP revision--would be required to submit
the initial set of NOX allocations by September 30, 2007 (70
FR 49731).\21\ The EPA proposed allowing States to submit abbreviated
SIP revisions later than full revisions because the Agency anticipates
that it will be able to complete the approval process more quickly for
abbreviated revisions due to their narrower scope.
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\21\ The proposed regulatory text at Sec. 51.123 (70 FR 49746)
would require States using the abbreviated SIP revision approach for
NOX allocations to notify EPA of such allocations by
September 30, 2007 for 2009, 2010 and 2011. Through an inadvertent
error, the preamble listed a different date--the preamble indicated
that the proposed deadline for such allocations would be October 31,
2007 (70 FR 49731). The Agency intended the proposed date to be
September 30, 2007 as indicated in the regulatory text.
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The Agency proposed to include appendices in part 97 that will be
amended in the future to list any States for which the Administrator
approves abbreviated SIP revisions covering opt-ins, allocation of
NOX allowances, distribution of CSP allowances, or inclusion
of non-CAIR NOX SIP Call trading sources in the CAIR FIP
NOX ozone season trading program.
The Agency received a number of comments on its proposal to allow
submission of abbreviated SIP revisions for CAIR. Several commenters
supported the abbreviated SIP revision approach. A commenter states
that the approach provides States added flexibility, helps facilitate
eventual transitions from a FIP-implemented to a State-implemented
CAIR, and provides
[[Page 25346]]
sources with better certainty regarding key operational elements (such
as NOX allocations) over the initial years of the program.
Commenters generally supported the choice of specific elements that EPA
proposed to allow States to control using abbreviated SIP revisions.
Several commenters argued against the Agency's proposed submission
deadline for abbreviated SIP revisions. Commenters who argued against
the proposed submission deadline generally did so in relation to the
timing for NOX allocations. The EPA discusses the schedule
for determining and recording NOX allocations in detail in
the NOX allocations section in today's preamble (section
VI.F, below) and responds in that section to commenters' concerns
regarding submission deadlines for abbreviated SIP revisions in
relation to NOX allocation timing.
One commenter that did not support the proposal for abbreviated SIP
revisions suggested that allowing such revisions to be submitted later
than the deadline for a full SIP revision sets a poor procedural
precedent. The Agency disagrees. The proposal to allow abbreviated SIP
revisions for CAIR is based on the unique circumstances in this case
and does not set precedent for other different circumstances.
The EPA is finalizing, with certain changes described below, the
approach that a State can choose to modify the application of the CAIR
FIP through abbreviated SIP revisions that do any or all of the
following:
Make applicable, to the State, provisions in the FIP for
otherwise unaffected units to opt into the FIP trading programs,
Allow the State, rather than EPA, to allocate annual and/
or ozone season NOX allowances,
Allow the State, rather than EPA, to allocate allowances
from the annual NOX Compliance Supplement Pool (CSP), and
Include NOX SIP Call trading sources that are
not EGUs under CAIR in the CAIR FIP NOX ozone season cap-
and-trade program.
Thus a State could choose, through its abbreviated SIP revision, to
bring its NOX SIP Call trading sources that are not EGUs
under CAIR from the NOX SIP Call trading program into the
CAIR NOX ozone season trading program.
With regard to the provision allowing an abbreviated SIP revision
to provide for State allocation of annual and/or ozone season
NOX allowances, EPA is revising that provision to give
States the same flexibility concerning such allocations as States have
in a full SIP revision. In a full SIP revision, States have the option
of allocating allowances to CAIR units or to other entities (such as
renewable energy facilities) or of auctioning allowances. The States
must submit the CAIR unit allocations to the Administrator by specified
deadlines so that the allowances can be recorded in the allowance
tracking system, but the requirements for a full SIP revision do not
address what happens if the State fails to meet these deadlines. In
contrast, under the proposed provision for an abbreviated SIP revision
allowing for State allowance allocations, a State's allocation
provisions must provide that, if a State does not inform the
Administrator of the allocations to CAIR units by the specified
deadlines, the Administrator will assume that the units get the same
allocations for the year as in the prior year and will record such unit
allocations. (EPA notes that the deadline for submitting the initial
set of allocations is changed, as described below, from the proposed
deadline of September 30, 2007 to April 30, 2007.)
The difficulty with the proposed approach is that it assumes that
the State is distributing (not auctioning) allowances and is providing
them to CAIR units (not to other entities). In order to clarify that
States have the same flexibility in allocating in abbreviated SIP
revisions and full SIP revisions, EPA is removing the abbreviated SIP
revision language concerning the Administrator's actions in the event a
State fails to inform in a timely manner the Administrator of the
allocations. However, it should be noted that the provisions for both
abbreviated SIP revisions and full SIP revisions set deadlines for
State submission of allocations to the Administrator for recordation
and that, in reviewing such SIP revisions, EPA intends to ensure that
the SIP revisions are consistent with those deadlines.
With regard to the provision allowing an abbreviated SIP revision
to provide for State allocation of the CSP, EPA is revising that
provision to give States the same flexibility with regard to CSP
allocations as States have in a full SIP revision. Under Sec.
51.123(e)(4)(iii), States may use in a full SIP revision one or both of
the mechanisms described for CSP allocation, one based on early
reductions and one based on need. Under the proposed provision for an
abbreviated SIP revision concerning State CSP allocations, a State must
use the allocation methods detailed in either Sec. 96.143 or Sec.
97.143. In order that an abbreviated SIP revision provides States the
same flexibility as a full SIP revision, EPA is revising the
abbreviated SIP revision language to give States the options of using
the Sec. 96.143 or Sec. 97.143 provisions or the provisions under
Sec. 51.123(e)(4).
The EPA will include appendices in part 97 that will be amended in
the future to list any States for which the Administrator approves
abbreviated SIP revisions covering any of the 4 specific elements
listed above. The EPA anticipates coordinating such amendments of the
appendices with the Administrator's final decision to approve such SIP
revisions.
D. Overall Structure of the CAIR FIP Cap-and-Trade Programs
In the CAIR NFR, the Agency provided SIP model rules for the CAIR
NOX annual, CAIR NOX ozone season, and CAIR
SO2 annual trading programs that States can use to meet the
emission reduction requirements in the CAIR (in part 96). For the final
CAIR FIP cap-and-trade programs, EPA decided to adopt the CAIR SIP
model rules with minor changes to allow for Federal implementation.
The emission reductions mandated by today's final rule will be
achieved from EGUs (see sections VI.E and VII, below, for discussion of
applicability provisions).
The CAIR FIP cap-and-trade programs rely on the detailed unit-level
emissions monitoring and reporting procedures of part 75 and consistent
allowance management practices. All affected sources are required to
monitor and report their emissions using part 75. Source information
management, emissions data reporting, and allowance trading will be
accomplished using on-line systems similar to those currently used for
the Acid Rain SOX and NOX SIP Call trading
programs.
The penalty provisions for excess emissions under today's FIP
trading programs were also adopted from the CAIR model trading rules.
As discussed in section VII in today's preamble, the Agency revised the
excess emission penalties in the CAIR SO2 trading program to
clarify the penalties for units that have excess emissions under both
the Acid Rain Program and the CAIR SO2 trading program. The
penalty provisions adopted for the final FIP thus are the excess
emissions penalty provisions in the CAIR with the revised CAIR
SO2 trading program penalties.
1. SO2 Annual Program
The final CAIR FIP SO2 cap-and-trade program requires
affected sources to hold SO2 allowances sufficient to cover
their emissions for each control period. For the FIP SO2
program, EPA decided to adopt the CAIR model SO2 trading
rule (with minor changes to allow for Federal implementation) which is
based
[[Page 25347]]
on the existing Acid Rain Program and relies on title IV SO2
allowances.
As in the CAIR SIP SO2 model trading program, the
SO2 reductions for the CAIR FIP SO2 trading
program will be achieved by requiring sources to retire, in most cases,
more than one title IV allowance for each ton of SO2
emissions.\22\ Sources can use pre-2010 title IV SO2
allowances for compliance with the CAIR FIP SO2 cap-and-
trade program at a 1-to-1 ratio (i.e., SO2 allowances of
vintage 2009 and earlier will offset one ton of SO2
emissions). Allowances of vintages 2010 through 2014 will offset 0.5
tons of emissions (i.e., such allowances will need to be retired at a
ratio of 2-to-1 for CAIR compliance, in other words 2 allowances for
every ton of emissions). Allowances of vintages 2015 and beyond will
offset 0.35 tons of emissions (i.e., such allowances will need to be
retired at a ratio of 2.86-to-1, in other words 2.86 allowances for
every ton of emissions). The emission value of an SO2
allowance is independent of the year in which it is used, but rather is
be based on its vintage (i.e., the year for which the allowance is
issued). These SO2 allowance retirement ratios are the
retirement ratios in the CAIR NFR, which EPA adopted in the CAIR FIP
SO2 trading program (see discussion in section VII in the
CAIR NFR preamble at 70 FR 25255-25273, as well as in section IX at 70
FR 25290-25291).
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\22\ Allowances of pre-2010 vintage will be retired at a ratio
of one allowance per ton of emissions. For allowances of later
vintages, more than one allowance will be retired per ton of
emissions.
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The Agency uses the single term, ``CAIR SO2 allowance,
'' to refer to an SO2 allowance under a CAIR SIP using the
model trading rule or CAIR FIP.\23\ A CAIR SO2 allowance can
be used for compliance with the SO2 allowance-holding
requirement in a CAIR SIP or CAIR FIP SO2 trading program.
Sources in States governed by either of these SO2 trading
programs can trade CAIR SO2 allowances with each other.
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\23\ A CAIR SO2 allowance is generally a tilte IV
SO2 allowance; the only exception is where a State adopts
the provisions allowing units not otherwise covered by the CAIR
SO2 trading program to opt in and allocates allowances
(which are not title IV allowances) to such units. For purposes of
compliance with the EPA-administered CAIR SIP SO2 trading
program or with the CAIR FIP SO2 trading program in
today's rule, the value of SO2 allowances are discounted
based on the allowance vintage year, as explained above.
---------------------------------------------------------------------------
2. NOX Annual Program
The final CAIR FIP NOX annual cap-and-trade program
requires affected sources to hold NOX annual allowances
sufficient to cover their emissions for each control period. For the
FIP NOX trading program, EPA adopted the CAIR SIP model
NOX trading program with minor revisions to allow for
Federal implementation. The FIP NOX program relies on CAIR
NOX annual allowances that will be allocated to affected
units by the EPA (see section VI.F in today's preamble for discussion
of the methodology and schedule for allocating NOX
allowances) or allocated by States using abbreviated SIP revisions. A
NOX annual allowance authorizes the emission of one ton of
NOX.
The Agency is finalizing the proposed Compliance Supplement Pool
(CSP) of allowances that will be allocated to sources and can be used
for compliance with the CAIR FIP NOX annual cap-and-trade
program. See sections V and VI.I in today's preamble for further
discussion of the CSP.
NOX ozone season allowances issued under the
NOX SIP Call or under the CAIR FIP NOX ozone
season trading program can't be used for compliance with the CAIR FIP
NOX annual reduction requirement. (Pre-2009 NOX
ozone season allowances issued under the NOX SIP Call can be
banked into the CAIR FIP NOX ozone season program; see
discussion of FIP NOX ozone season program, below.)
The Agency uses the single term, ``CAIR NOX allowance,''
to refer to a NOX allowance issued under a CAIR SIP using
the model trading rule or CAIR FIP. A CAIR NOX allowance can
be used for compliance in a CAIR SIP or CAIR FIP NOX annual
trading program. Sources in States governed by either of these
NOX annual trading programs can trade CAIR NOX
allowances with each other.
3. NOX Ozone Season Program
The final CAIR FIP NOX ozone season cap-and-trade
program requires affected sources to hold CAIR NOX ozone
season allowances sufficient to cover their emissions for each control
period. For the ozone season program, the control period extends from
May 1 through September 30 for each year of the program. For this
trading program also, EPA adopted the trading program from the CAIR SIP
model NOX ozone season trading rule with minor modifications
to allow for Federal implementation. Under the FIP program, a
NOX ozone season allowance authorizes the emission of one
ton of NOX during the ozone season.
The FIP program relies on CAIR NOX ozone season
allowances that will be allocated to affected sources by the EPA (see
section VI.F in today's preamble for discussion of the methodology and
schedule for allocating NOX allowances) or allocated by
States using abbreviated SIP revisions. In addition, pre-2009
NOX SIP Call allowances can be banked into the CAIR FIP
NOX ozone season program and used by affected sources for
compliance with that program. NOX allowances issued under
the CAIR FIP NOX annual program can't be used for compliance
with the CAIR FIP NOX ozone season reduction requirement.
As discussed in the CAIR NFR and the CAIR FIP NPR, certain emission
sources that do not meet the applicability requirements of CAIR are
included in the existing EPA-administered NOX Budget Trading
Program under the NOX SIP Call. (The types of NOX
Budget Trading Program units that are not EGUs under CAIR include
industrial boilers and turbines, cement kilns, and small EGUs.) As
explained in the CAIR NFR and CAIR FIP NPR, EPA will no longer
administer the NOX SIP Call ozone season cap-and-trade
program for ozone seasons after 2008; however, NOX SIP Call
requirements will remain in place. The CAIR NFR provides that States
that choose to participate in the CAIR EPA-administered NOX
ozone season cap-and-trade program may choose whether or not to bring
their non-CAIR NOX SIP Call trading sources into the CAIR
ozone season trading program, through their SIP revisions. Bringing the
non-CAIR NOX SIP Call trading sources into the CAIR ozone
season program is one way to continue to meet NOX SIP Call
requirements. See section VII in the CAIR NFR (70 FR 25255-25273) and
section IX.A. (70 FR 25289-25290).
As discussed above, the Agency is finalizing its proposal that
States may choose to submit an abbreviated SIP revision to bring their
non-CAIR NOX SIP Call trading sources into the CAIR FIP
NOX ozone season cap-and-trade program. The abbreviated SIP
revision may increase a State's NOX ozone season trading
budget under the CAIR FIP NOX ozone season cap-and-trade
program by an amount equal to the portion of the State's NOX
SIP Call State trading budget that is attributed to such units.
The Agency uses the single term, ``CAIR NOX Ozone Season
allowance,'' to refer to a NOX ozone season allowance issued
under a CAIR SIP using the model trading rule or CAIR FIP. A CAIR
NOX ozone season allowance could be used for compliance in a
CAIR SIP or CAIR FIP NOX ozone season trading program.
Sources in States governed by either of these NOX ozone
season trading programs can trade CAIR NOX Ozone Season
allowances with each other.
[[Page 25348]]
E. Sources Subject to the CAIR FIP Cap-and-Trade Programs
Under the proposed CAIR FIP cap-and-trade programs, only EGUs were
subject to the proposed rules. The proposed applicability provisions
are, by design, identical to the provisions for applicability the CAIR
SIP model trading programs and incorporated the FIP NPR revisions to
the applicability provisions of the final CAIR SIP model trading rules.
The revisions to CAIR SIP model rule applicability include exemptions
for (1) municipal solid waste incinerators and (2) existing units that
have not served a generator since before November 15, 1990.
Incorporating these exemptions into the applicability provisions in
both the CAIR SIP and CAIR FIP trading programs provides clarity and
aligns the provisions more closely with the provisions in the title IV
Acid Rain Program. A detailed discussion of the rationales for
including these exemptions may be found in section VII of the CAIR FIP
NPR. (See section VIII.C. in the CAIR NFR preamble for applicability
discussion at 70 FR 25276-25278 and section VII in today's preamble for
additional discussion of changes to the CAIR EGU definition).
Public comment on the proposed applicability provisions of the CAIR
FIP trading programs primarily expressed interest in additional
exemptions for waste coal-fired units, biomass-fired units, and low
emissions units. These are discussed in detail below.
Applicability in the Final CAIR FIP. Today's action finalizes that,
in any jurisdiction for which a final CAIR FIP is promulgated, units
will be subject to the CAIR FIP trading programs (i.e., to the CAIR FIP
SO2, NOX annual, or NOX ozone season
programs, as appropriate) if they are 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. Certain cogeneration units
or solid waste incinerators are exempt from the CAIR FIP and are
described below.
Cogeneration Unit Exemption. As in the CAIR NFR, certain
cogeneration units are exempt from the CAIR FIP trading programs.
Cogeneration units include units having equipment used to produce
electricity and useful thermal energy for industrial, commercial,
heating, or cooling purposes through sequential use of energy and
meeting certain operating and efficiency standards. The program has
different applicability provisions for non-cogeneration units and
cogeneration units. Any cogeneration unit, serving (since the later of
November 15, 1990 or the start-up of the unit), a generator with a
nameplate capacity of greater than 25 MW and supplying more than \1/3\
potential electric output capacity and more than 219,000 MW-hrs
annually to any utility power distribution system for sale, will be
subject to the requirements of the CAIR FIP trading rules. Otherwise,
the unit will qualify for an exemption under the FIP rules. This
cogeneration unit exemption is identical to the exemption in the CAIR
NFR, as revised by today's action. Section VIII.C.3. of the CAIR NFR
preamble describes the cogeneration unit exemption and discusses the
specific elements of how units would qualify and remain qualified for
the exemption (70 FR 25276-25278).
Solid Waste Incinerator Exemption. Today's action includes an
exemption for certain solid waste incinerators in both the CAIR and
CAIR FIP cap-and-trade programs. Specifically, a solid waste
incineration unit commencing operation before January 1, 1985, for
which the average annual fuel consumption of non-fossil fuels during
1985-1987 exceeded 80 percent and during any 3 consecutive calendar
years after 1990 the average annual fuel consumption of non-fossil
fuels exceeds 80 percent, is not subject to either the CAIR or CAIR FIP
cap-and-trade programs. (Section VII of the preamble for today's rule
provides additional discussion.)
Individual Unit Opt-ins. Today's action includes provisions for
individual units to opt-in to the CAIR FIP trading programs. These
units, when they opt-in, become ``affected'' by the CAIR FIP trading
program and, as a result, must comply with allowance holding
requirements, monitor and report emissions, and receive CAIR
allowances.
The opt-in provisions of the CAIR FIP trading programs would become
applicable to sources in a given State only if the State chooses to
submit an abbreviated SIP revision that would provide for the inclusion
of opt-ins in the CAIR FIP trading programs. The EPA considered
requiring all States to have opt-in provisions in the proposed CAIR FIP
trading programs. By not requiring opt-in provisions in all States
covered by the proposed FIP trading programs, the Agency seeks to
preserve the States' flexibility to decide whether to allow opt-in
units. In addition, the EPA believes that including opt-in provisions
only in States that have elected to include them in an abbreviated SIP
revision avoids the possibility of ``stranding'' some opt-in units.
More specifically, this requirement avoids a situation where a unit
might make investments based upon assumption that it will opt-in to a
CAIR FIP trading program only to be stranded if the CAIR FIP program
was later supplanted by EPA approving a CAIR SIP submitted by the State
that did not include opt-in provisions.
If States choose to submit abbreviated SIP revisions to provide for
the inclusion of opt-ins in the CAIR FIP trading programs, the SIP
revisions must include the opt-in provisions that are provided in the
CAIR final rule. See section VIII.G. of the CAIR NFR preamble for
discussion of opt-in provisions (70 FR 25286-25288).
Waste Coal-Fired Units Under CAIR FIP. The EPA received comments
requesting an exemption for waste coal-fired units from both the CAIR
and CAIR FIP SO2 annual programs. Some commenters claimed
that their costs to comply with the programs are excessively high. The
economics of a waste coal-fired unit are different depending upon
whether the unit has a fixed price power purchase agreement in place or
whether it is selling electricity on the wholesale market.
Units that had power purchase agreements with fixed prices in place
on November 15, 1990, are exempt from title IV and do not receive title
IV allowances. The commenters state that, while their agreements are in
effect, these units are not able to pass through cost increases, such
as the cost of compliance with CAIR, except where specific escalations
are provided (e.g., compensation for increases in fuel costs or
inflation).
While under the agreements and exempt from title IV, the units can
opt into the title IV program and receive allowances as opt-in units.
Commenters claim that the title IV opt-in provisions could allocate
allowances to them at levels below their projected emissions because
the years on which title IV bases the allocations are early in the
units operation and might under-represent the unit's typical heat
input. The commenters add that it is not cost effective for the units
to reduce SO2 emissions by installing advanced emission
controls because the units already achieve significant reductions and
have fixed price contracts that do not allow them to pass through
control costs.
The second scenario is the period beginning when the units' power
purchase agreements expire and the units lose their title IV exemption.
As title IV affected units, they lose their
[[Page 25349]]
title IV opt-in status and can no longer receive title IV allowances
under the title IV opt-in provisions. These units are no longer locked
into their power purchase contracts and are free to participate in the
wholesale electricity markets. The commenters contend that reducing
emissions--even when they are free to pass through the cost of
compliance--is not cost-effective, because most waste coal-fired
facilities already operate at lower SO2 emission rates than
many other sources. This, however, belies the real issue, since under a
trading program, sources have multiple compliance options including
installing emission controls, switching fuels or purchasing allowances.
If a source's control costs are above the marginal cost of control in
the region, the unit is likely to comply by purchasing allowances,
thereby reducing their cost of control to the market price.
In general, information regarding the cost of generation,
electricity markets, and cost of controlling emissions may be found
through publicly available sources. This information is used, and in
some cases developed, by EPA in its regulatory efforts (e.g., IPM
modeling results, technical support documents (TSD) examining the cost
and feasibility of control options). However, information regarding
specific terms of the contracts, such as found in the power purchase
agreements of the waste coal-fired units, is generally proprietary and
is claimed to vary widely from contract to contract. Although complete
information on contracts (e.g., the fixed price for electricity, price
escalators) could have been provided in order to perform a thorough
analysis, commenters provided EPA with some limited information (much
of it after the public comment period closed) that did not support the
commenters' case for the broad closure of waste coal-fired units as a
category of sources. In addition, commenters presented some limited
analysis of the ratio of their estimated cost of compliance with CAIR
to their projected revenue. Again, EPA's evaluation of this limited
analysis showed that it did not support the commenters claims that they
would not be economically viable. (The results of EPA's evaluation of
the commenters' analysis are discussed later in this section.) Because
the unit-specific information provided by the commenters was limited,
EPA conducted an analysis using generally available information to
evaluate the potential impact of the cost of complying with CAIR for a
typical CFB combusting waste coal. This analysis shows that the typical
waste coal-fired unit would remain economically viable under CAIR. (The
results of this analysis are discussed later in this section.)
EPA understands that waste coal-fired facilities have not received
a title IV SO2 allowance allocation because they have been
exempt from title IV under the IPP exemption. Title IV's IPP exemption
applies to units that had power purchase agreements with fixed prices
in place on November 15, 1990, and includes units other than waste
coal-fired facilities. Congress limited this exemption to only those
units with power purchase commitments in effect, thereby acknowledging
that once the unit was freed from its power purchase commitment, it was
free to pass through compliance costs to its customers. The unit may
lose this exemption even before the full-term of the contract if the
power purchase commitment changes after November 15, 1990, in a way
that allows the cost of compliance with the Acid Rain Program to be
shifted to the purchaser. For example, expiration or termination of the
power purchase commitment or modification so that the price is
increased (e.g., changed to a market price) results in loss of the
exemption. The purpose of the exemption is to protect IPP facilities
subject to contract prices that were set before passage of the CAA
Amendments of 1990 (including the Acid Rain Program in title IV) and
that did not allow pass through of the costs of Acid Rain Program
compliance. Congress has limited the exemption to apply to the Acid
Rain Program and did not mandate the Agency with maintaining the
exemption in future programs. EPA believes that this exemption was
aimed at easing the transition of such facilities into the Acid Rain
Program and that there is no basis for maintaining this exemption for
every subsequent cap-and-trade program.
Waste coal-fired units are designed and operated for the purpose of
generating electricity for sale. As a result, they are reasonably
treated as part of the power generation sector, which comprises the
category of sources the CAIR and CAIR FIP trading programs aimed at
regulating. For this reason, EPA modeling for CAIR included waste coal-
fired EGUs as part of the power sector, which was shown to collectively
be able to make highly cost-effective SO2 and NOX
emission reductions. The marginal cost of control and the average cost
of control, shown to be highly cost-effective, reflect a range of power
sector control costs that include costs from sources such as waste
coal-fired units. Notably, the model considers where control will be
least expensive and that some units will purchase allowances in the
determination of which units are projected to dispatch. EPA modeling
shows that waste coal-fired units continue to be dispatched even when
the cost of complying with CAIR is part of the unit's production costs.
Commenters did not provide any basis for changing EPA's treatment of
waste coal-fired units in the modeling or for challenging EPA's
modeling results.
EPA agrees that these units do not have large SO2
emissions. These units may emit based on a reduction in SO2
from sulfur content in the fuel of approximately 90 percent, or in some
cases greater, reductions in SO2 from sulfur content of the
fuel.\24\ However, many continue to emit at rates above those recently
achieved by coal-fired units with advanced SO2 controls
(i.e., scrubbers). Nevertheless, because these units tend to be
relatively small and have lower total emissions, they would be required
to purchase significantly fewer allowances than other, potentially
higher emitting, sources that also may not have received SO2
allowances under title IV.
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\24\ Reduction in SO2 from CFB units are EPA
estimates based upon the design of the facilities.
---------------------------------------------------------------------------
However, EPA does not believe that the CAIR SO2 annual
requirements would impose an undue or inequitable ``economic burden''
on waste coal-fired units that would ``threaten the viability'' of all,
or even many, of these units. EPA considered the potential impacts for
both the periods of the concern identified by the commenter: (1) When
the power purchase agreement is in place and the unit is exempt from
title IV; and (2) after the power purchase agreement has expired and
the unit is title IV affected.
For the period in which the waste coal-fired unit has a power
purchase contract in place, EPA examined the analysis presented by the
commenters in support of their argument that CAIR compliance costs
would threaten their economic viability. EPA believes the commenters'
analysis substantially overestimated the potential compliance costs of
CAIR and the CAIR FIP (by inaccurately accounting for the future
projected cost of emitting one ton of SO2, underestimating
access to title IV SO2 allowances through the title IV opt-
in provisions, and inaccuracies in other analytical assumptions) and,
when more realistic assumptions are correctly applied, these units are
much better off. (Section VI.A of the CAIR FIP Response to Comment
Document presents the results of this analysis.)
[[Page 25350]]
As mentioned above, while waste coal-fired units have a valid power
purchase agreement (and, subsequently, an exemption from title IV),
they may choose to opt-in to the title IV program and receive
SO2 allowances. The title IV opt-in provisions provide units
with SO2 allowances based upon their heat input (i.e., the
average of their annual heat input for the years 1985 through 1987 or
their first 3 whole years of operation) and their emission rate (i.e.,
the lesser of their actual emission rate during the first baseline year
or, their lowest permitted emission limit in year they apply that will
be effective that year or any time after). As a result, these units
could receive SO2 allowances sufficient to authorize all of
their future, annual emissions under the title IV program. Other units,
that may operate more than they did during the baseline years, may
receive SO2 allowances from the title IV opt-in provisions
at levels lower than their future emissions. Assuming the waste coal-
fired units made no additional reduction in SO2 emissions,
this same opt-in allocation level would authorize half of their
emissions, and require them to purchase SO2 allowances equal
to half of their emissions, under the first phase of CAIR or the CAIR
FIP.\25\ Considering that waste coal-fired CFB units generally achieve
greater than 90 percent SO2 emission reductions, the unit
would purchase SO2 allowances equal 5 percent of this total,
uncontrolled emissions. The retirement ratio for the second phase of
CAIR or the CAIR FIP would result in the sources purchasing
SO2 allowances equivalent to 7 percent of this uncontrolled
emissions level (i.e., two thirds of the remaining 10 percent of the
uncontrolled emissions). From the evidence that EPA has been provided,
the commenters have not demonstrated that purchasing allowances equal
to approximately 5 percent or 7 percent of uncontrolled emissions in
the phases 1 and 2 of the CAIR FIP (and CAIR), respectively, would
result in the units not being economically viable.
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\25\ Assumes sources receive title IV opt-in allowances equal to
their current emissions. The 2-to-1 retirement ratio of CAIR's first
phase requires CAIR sources to hold twice as many allowances.
---------------------------------------------------------------------------
The commenters concerns about the economic viability of waste coal-
fired units continue for periods of time when the power purchase
agreements have expired (i.e., the units have lost the exemption from
title IV) and the units are free to participate in the electricity
markets. EPA addressed this concern by conducting additional analysis
using generally available information to evaluate the potential impact
of the cost of complying with CAIR for a typical CFB combusting waste
coal. More specifically, EPA examined how the potential cost to operate
a typical waste coal-fired CFB unit (in $/MWh) compares to the
potential price it would receive on the electricity market. This
analysis estimated the potential cost of producing electricity for a
waste coal-fired CFB (including the cost of complying with CAIR) to be
significantly less than the EPA projected wholesale price and the
forecasted price of electricity. In general, waste coal-fired
facilities will continue to be profitable, even when factoring in the
cost of complying with CAIR.
EPA also notes that, upon the expiration of the power purchase
agreements, waste coal-fired units will participate in the electricity
markets and be required to comply with all applicable emission control
programs, including the title IV Acid Rain Program, just as other coal-
fired facilities. Some of these coal-fired units have installed
emission control equipment, emit SO2 at lower rates than the
waste coal-fired units, and are complying with title IV while they
compete in the electricity markets. Additionally, new units continue to
come online and are economically viable even though they must acquire
title IV SO2 allowances on the market.
In addition, commenters mentioned that waste coal-fired facilities
provide benefits outside of air emissions, such as assisting in the
mitigation of waste coal impacts on the land. EPA notes that, in case
of waste coal-fired units, there are a variety of avenues of potential
relief for States that wish to assist these units as they transition to
competitive markets. Options for States to encourage certain types of
generation include, but are not limited to: Revenue from renewable
portfolio standards (where waste coal-fired units can qualify); and
providing valuable CAIR NOX annual and ozone season
allowances, as well as mercury allowances under the Clean Air Mercury
Rule (which are options in Pennsylvania, where most of the commenters
waste coal-fired units are located). EPA also notes that, in the case
of waste coal-fired units that have contended that they provide multi-
media benefits, that they will have the flexibility to develop
integrated, multi-pollutant compliance strategies under CAIR.
In summary, EPA does not agree with commenters that believe that
complying with the CAIR FIP or CAIR SO2 annual program would
result in this category of units not being economically viable. These
units are designed to generate electricity for sale on the grid and are
part of the power generation sector. The CAIR FIP and CAIR trading
programs are designed to achieve emission reductions from EGUs while
providing the flexibility for the markets to find the least-cost
reductions. Once their contracts expire, waste coal-fired units, just
as other coal-fired generation sources which may or may not receive
title IV SO2 allowances, will be expected to hold
SO2 allowances and compete in the electricity markets. In
addition, the commenter has not provided analysis that demonstrates
that waste coal-fired units, as a category, would not be economically
viable as a result of CAIR. For these reasons, EPA has not included an
exemption for waste coal-fired units or IPPs in the CAIR FIP or CAIR
trading programs.
Biomass-Fired Units under CAIR FIP. EPA received comment that
biomass-fired units should be exempt from the CAIR and CAIR FIP trading
programs. These commenters claimed that their operations are similar to
those of solid waste incineration units, which EPA proposed to exempt
in the CAIR FIP NPR. Commenters added that they could meet fossil fuel
use criteria used in the solid waste incineration unit exemption (i.e.,
the average annual fuel consumption of non-fossil fuels not exceeding
80 percent for the years 1985-1987 (or for a unit commencing operation
after January 1, 1985, the first 3 years of operation) and during any 3
consecutive calendar years after 1990). In addition, commenters noted
that this would be consistent with the title IV exemptions for biomass-
fired units as ``qualifying facilities.''
EPA disagrees with commenters that request that biomass-fired EGUs
be exempted from the CAIR and CAIR FIP trading programs because they
are similar to solid waste incinerators. While biomass-fired EGUs may
be able to meet the criteria for limited combustion of fossil fuel used
in the solid waste incineration unit exemption in the CAIR and CAIR FIP
trading programs, they differ from solid waste incineration units in
that biomass-fired units are designed and operated for the purpose of
generating electricity for sale. As a result, they are reasonably
treated as part of the power generation sector, which comprises the
category of sources the CAIR and CAIR FIP trading programs aimed at
regulating. For this reason, EPA modeling for CAIR included biomass-
fired EGUs as part of the power sector, which was shown to be able to
make highly cost-effective SO2 and NOX emission
reductions. The marginal cost of control and the average
[[Page 25351]]
cost of control, shown to be highly cost-effective, reflect a range of
power sector control costs that include costs from sources such as
biomass-fired units. Commenters did not provide any basis for changing
EPA's treatment of biomass-fired units in the modeling or for
challenging EPA's modeling results.
Biomass-fired units included in the CAIR and CAIR FIP trading
programs are distinguishable from solid waste incineration units exempt
from the CAIR and CAIR FIP trading programs. First, while the purpose
of biomass-fired units are to generate electricity (and, in some cases,
useful thermal energy), solid waste incineration units are designed and
operated for the purpose of disposing of solid waste, with electricity
generation incidental to this purpose. In fact, the term ``solid waste
incineration unit'' excludes sources whose primary purpose is something
other than waste disposal, such as ``material recovery facilities * * *
which combust for the primary purpose of recovering materials'' and
``qualifying small power production facilities * * * or qualifying
cogeneration facilities * * * which burn homogeneous waste for the
production of electric energy * * * for the production of electric
energy and steam or forms of useful energy (such as heat) * * *'' (18
U.S.C. 7429(g)(1)) Thus, it was reasonable for EPA to treat biomass-
fired units, but not solid waste incineration units, as part of the
power sector. Second, as explained in the CAIR FIP NPR, emission
reductions from solid waste incineration units, treated as a separate
source category, were not considered in EPA's determination of highly
cost-effective reductions from the power sector. Biomass-fired units
were treated as part of the power sector, which was shown in EPA's
modeling to be able to make highly cost-effective reductions.
EPA does not believe that the title IV exemption for qualifying
biomass-fired units means that these units should be exempt from all
cap-and-trade programs developed after the Acid Rain Program. Under the
Acid Rain Program, an IPP facility (such as a biomass-fired unit) that
has, as of November 15, 1990, a qualifying power purchase commitment
(including a sales price) to sell at least 15 percent of planned net
output capacity and has installed net output capacity not exceeding 130
percent of planned net output capacity is exempt from the program.
However, if the power purchase commitment changes after November 15,
1990 in a way that allows the cost of compliance with the Acid Rain
Program to be shifted to the purchaser, then the IPP facility loses the
exemption. For example, expiration or termination of the power purchase
commitment or modification so that the price is increased (e.g.,
changed to a market price) results in loss of the exemption. The
purpose of the exemption is to protect IPP facilities subject to
contract prices that were set before passage of the CAA Amendments of
1990 (including the Acid Rain Program in title IV) and that did not
allow pass through of the costs of Acid Rain Program compliance.
However, EPA maintains that this exemption was aimed at easing the
transition of such facilities into the Acid Rain Program and that there
is no basis for maintaining this exemption for every subsequent cap-
and-trade program.
Under the CAIR trading programs, a biomass-fired unit can be
allocated NOX allowances, just as any other CAIR unit.
Further, although biomass-fired units are not generally allocated title
IV allowances, which are used in the CAIR SO2 annual trading
program, those units can opt into the Acid Rain Program and receive
title IV allowances as long as they retain their IPP exemption. If they
lose the exemption because they are no longer bound by their power
purchase commitment, then they can pass through compliance costs to the
same extent any CAIR unit can do so.
For the reasons discussed above, the EPA is not including an
exemption from the CAIR and CAIR FIP trading programs for biomass-fired
units in today's final rule.
Low Emissions Units Under CAIR FIP. EPA received comment requesting
that units with low emissions, such as units that emit less than 25-
tons annually, be exempt from the CAIR and CAIR FIP trading programs.
This includes simple cycle turbines that are operated infrequently,
primarily during peak demand or when there are operational difficulties
with baseload units. Commenters claim that the cost of monitoring and
reporting their emissions is excessively burdensome and that special
provisions in part 75 monitoring for low mass emitting (LME) units does
not provide adequate relief.
Today's final CAIR FIP trading rules do not include an exemption
for low emitting units. While low emitting, these units are designed
and operated for the purposes of generating electricity for sale. As a
result, they are reasonably treated as part of the power generation
sector, which comprises the category of sources the CAIR and CAIR FIP
trading programs aimed at regulating. For this reason, low-emitting
units were included as part of the power sector, which was shown
through EPA modeling for CAIR to be able to make highly cost-effective
emission reductions. The marginal cost of control and the average cost
of control, shown to be highly cost effective, reflect a range of power
sector control costs that include costs from low-emitting units
(including simple-cycle turbines).
Commenters advocating an exemption of these units did not provide
any basis for changing EPA's treatment of these units in the modeling
or for challenging EPA's modeling results.
The NOX SIP Call did include an exemption for units that
could demonstrate that their permits imposed an operating hour
limitation under which their potential emissions during the ozone
season did not exceed 25 tons (the ``25-ton exemption''). Units wishing
to obtain the 25-ton exemption were required to use conservative
emission estimates of their potential emissions and State budgets were
adjusted to remove the equivalent of their potential emissions from
that State's trading program budget. In general, this exemption was
undersubscribed and complex. EPA also notes that it received little
comment on including a 25-ton exemption, with only a single facility
claiming that this exemption is necessary. EPA does not see compelling
justification to include this exemption in the CAIR and CAIR FIP
trading programs.
EPA does not agree with commenters that contend that the LME
provisions do not adequately relieve the cost of monitoring and
reporting for low emitting units. The part 75 LME provisions provide
qualifying sources with multiple options to allow facilities to choose
the approach that best fits their circumstances. First, units may
choose to use EPA-provided, conservative emission factors in lieu of
installing and operating Continuous Emissions Monitoring Systems
(CEMS). The LME provisions provide a second option that allows
facilities to determine unit-specific emission factors for use in
estimating their annual emissions. Additionally, EPA provides the
software necessary to generate the quarterly emissions reports for
these sources to further lessen the burden on these sources. These
streamlined monitoring and reporting procedures relieve much of the
administrative burden, and therefore, the compliance costs, for LME
qualifying units. This allows EPA to accurately and cost-effectively
account for the emissions, even at low emission levels, and allow these
units to participate in the CAIR trading programs.
[[Page 25352]]
F. Allocation of NOX Emission Allowances to Sources
The EPA presented in the NPR (70 FR 49730-49734) its proposed
schedules and methods for allocating NOX allowances to
sources, including allowances for the CAIR FIP NOX annual
trading program and the CAIR FIP NOX ozone season trading
program. The Agency proposed to use NOX allocation methods
that are consistent with the NOX allocation methods in the
CAIR SIP model trading rules.
As discussed above, the Agency proposed that a State could choose
to modify the application of the FIP through abbreviated SIP revisions
that would allow the State, rather than EPA, to allocate NOX
annual and/or ozone season allowances for the CAIR FIP trading
programs.
The EPA proposed formulas for EPA-determined allocations of
NOX allowances to units (both existing units with sufficient
baseline data and new units) under the CAIR FIP trading programs.
Further, the Agency proposed schedules for applying the allocation
formulas and for determining such NOX allocations for the
CAIR FIP trading programs. The EPA also proposed schedules for States
to apply State-determined allocation formulas under abbreviated SIP
revisions. In addition, EPA proposed a schedule for the Administrator
to record NOX allocations (whether EPA-or State-determined)
in source accounts.
The EPA received a number of comments on each of these elements of
its proposed schedules and methods for NOX allocations. The
Agency discusses the comments and presents the final schedules and
methods for NOX allocations below.
See section VI.I in today's preamble for a discussion of the
Agency's method for distributing FIP NOX annual allowances
from the NOX annual CSP.
1. Schedule for Determining and Recording NOX Allocations
The Agency's preference is for States to make decisions about
NOX allocations for their sources. Although EPA will
determine NOX allocations for the CAIR FIP trading programs,
we intend to only record EPA-determined allocations in allowance
accounts for sources located in a State without a timely, approved CAIR
SIP revision (or timely, approved abbreviated CAIR SIP revision
providing for State-determined allocations).
While EPA's proposal included schedules for determining and
recording NOX allocations for both existing units with
sufficient baseline data and new units, this section of the preamble--
and the public comments--focus on the allocations for existing
units.\26\
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\26\ The Agency is finalizing the proposed schedules for
determiing and recording FIP NOX allocations for new
units; see Sec. Sec. 97.141, 97.341, 97.153 and 97.353.
---------------------------------------------------------------------------
As discussed further below, EPA intends to determine NOX
allocations for the CAIR FIP trading programs by October 31, 2006
(covering 2009-2014). For any State choosing to determine CAIR FIP
NOX allocations using an abbreviated SIP revision, the
deadline for States to notify EPA of their first set of NOX
allocations (covering at least 2009-2011) is April 30, 2007. The Agency
will record EPA-determined allocations for the CAIR FIP trading
programs by September 30, 2007 (covering 2009), September 30, 2008
(covering 2010) and September 30, 2009 (covering 2011-2013). If State-
determined NOX allocations are approved earlier than these
recordation deadlines (under a full SIP revision or an abbreviated SIP
revision), the Agency intends to record the State-determined
allocations in source accounts rather than EPA-determined allocations,
as soon as possible. Table VI-2, below, summarizes the final deadlines
for recording CAIR FIP NOX allocations (EPA-determined
allocations or State-determined allocations using an abbreviated SIP
revision). Table VI-3 summarizes the final deadlines for recording CAIR
SIP NOX allocations for States choosing to use the CAIR
model trading rules (full SIP revisions).
As discussed in the NPR, the Agency developed proposed schedules
for recording CAIR FIP NOX allocations for existing units in
source accounts with the objective of balancing the following two
goals: (1) Providing both adequate certainty to sources regarding their
CAIR NOX allocations and adequate time for sources to make
compliance decisions, and (2) providing States choosing to allocate
CAIR NOX allowances with time to submit, and EPA to approve,
abbreviated or full SIP revisions that provide for State-determination
of allowance allocations.
The final CAIR (70 FR 25162) requires States to submit SIP
revisions complying with the CAIR requirements to the Agency by
September 11, 2006 and to submit the initial set of NOX
allocations by October 31, 2006.
In the CAIR FIP NPR, the Agency proposed that States choosing to
submit abbreviated SIP revisions would be required to submit such
revisions to EPA by March 31, 2007, and--if choosing to address
NOX allocations in an abbreviated SIP revision--would be
required to submit the initial set of NOX allocations by
September 30, 2007. The EPA proposed allowing States to submit
abbreviated SIP revisions later than full revisions because the Agency
anticipates being able to complete the approval process more quickly
for abbreviated revisions due to their narrower scope.
The Agency stated in the FIP NPR its intention to determine final
NOX allocations for 2009 through 2014 for the FIP trading
programs prior to December 1, 2007 (70 FR 49732). The EPA has further
considered its plans for determining these final NOX
allocations and now intends to determine them by October 31, 2006. The
Agency intends to publish a Notice of Data Availability (NODA) during
spring 2006 with NOX allocations for 2009 through 2014. The
public will have an opportunity to make objections to any of the data
used in these allocations. EPA will publish a NODA with the final
NOX allocations for 2009 through 2014 (adjusted if necessary
in light of any objections) by October 31, 2006. In this manner, the
Agency intends to provide earlier notice to sources of the EPA-
determined NOX allocations.
The EPA proposed to determine NOX allocations by July
31, 2011 and July 31 of each year thereafter for the control period in
the fourth year after the year of the deadline for the determination
and then to provide opportunity for submission of objections to the
determination. The EPA would make any necessary adjustments to the
allocations in light of any objections, before the deadline for EPA to
record the allocations. The EPA is now finalizing this schedule. For
example, the Agency will determine allocations by July 31, 2011 for the
2015 control period and then provide opportunity for submission of
objections. The Agency intends to make any necessary adjustments to
these allocations, in light of any objections, as soon as possible
after the receipt of objections and before the recordation deadline
\27\ of December 1, 2011. As discussed further below, the Agency
intends to record EPA-determined NOX allocations in source
accounts only in the absence of a timely, approved full CAIR SIP
revision or a timely, approved abbreviated CAIR SIP revision providing
for State-determined allocations.
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\27\ Recordation deadline means the date by which the
Administrator will record allocations in source accounts in the
allowance tracking systems.
---------------------------------------------------------------------------
The EPA presented in the FIP NPR its proposed deadlines for
recording NOX allocations in source accounts for the CAIR
FIP trading programs (see Table
[[Page 25353]]
VI-1 in the NPR at 70 FR 49732.) The proposed recordation deadlines for
FIP NOX allocations were as follows: By December 1, 2007 for
the 2009 control period; by December 1, 2008 for the 2010 control
period; by December 1, 2009 for the 2011, 2012 and 2013 control
periods; by December 1, 2010 and December 1 of each year thereafter for
the control period in the fourth year after the recordation deadline.
These proposed recordation deadlines were the latest dates by which EPA
proposed to record NOX allocations for the CAIR FIP trading
programs. The EPA proposed to record EPA-determined NOX
allocations only in the absence of a timely, approved full CAIR SIP
revision or a timely, approved abbreviated CAIR SIP revision providing
for State-determined NOX allocations. The Agency intended to
record any NOX allocations determined by a State using an
abbreviated SIP revision as soon as feasible after approval of the
abbreviated SIP revision; EPA did not intend to wait until the proposed
deadlines to record such State-determined allocations. Likewise, the
Agency intended to record any NOX allocations determined by
a State using a full SIP revision as soon as feasible after approval of
the full revision (and according to the recordation deadlines in the
CAIR SIP rules at Sec. Sec. 96.153 and 96.353).\28\
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\28\ The FIP NPR preamble contained an inaccurate statement
regarding proposed NOX allocation recordation deadlines.
The preamble (70 FR 49731) indicated that the recordation deadlines
would be the same whether the allocations were in a full SIP
revision or in an abbreviated revision; however the proposed
recordation deadlines relevant to abbreviated revisions are
different from deadlines for full SIP revisions.
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In the FIP NPR (70 FR 49739), the Agency proposed to remove the
deadline to record NOX allocations for the first set of
years submitted in a SIP revision (i.e., in a full SIP revision) that
used the model allocation method in part 96, but to retain the
deadlines to record the subsequent allocations. The CAIR NOX
model trading rules, as finalized at 70 FR 25162, required the
Administrator to record the initial set of NOX allocations
submitted by the States by December 1, 2006 (Sec. Sec. 96.153 and
96.353). However, since the SIP revisions that include such allocations
are not due until September 11, 2006, it is highly unlikely that all
the SIP revisions will be approved by EPA in time for the allocations
to be recorded by December 1, 2006. CAIR NOX allowance
allocations should not be recorded, and thereby be tradable in the
allowance market, before the SIP revision on which the allocations are
based is final; it would be highly disruptive to the allowance market
if allocations that are recorded and could be traded could subsequently
be rendered invalid due to disapproval of the SIP revision on which the
allocations are based.
The Agency's proposal to remove the deadline to record the first
set of NOX allocations submitted in a full SIP revision did
not include an alternative recordation deadline. Some commenters
suggested that EPA should set an alternative deadline, and one
commenter suggested that the deadline should be within 30 to 60 days
following EPA approval of a State's SIP revision. The Agency is
finalizing a recordation deadline of September 30, 2007 for the first
set of NOX allocations submitted with a full SIP revision.
This recordation deadline is based on the Agency's belief that full SIP
revisions can be approved in about a year from submission, that is by
about September 2007.
Some industry commenters who supported the abbreviated SIP revision
approach did not support the proposed schedule for abbreviated
revisions, in particular with regard to the schedule for NOX
allocations. Some suggested that abbreviated SIP revisions should be
due on the same schedule as full SIP revisions (i.e., that the deadline
for abbreviated SIP revisions should be September 11, 2006, instead of
March 31, 2007 as proposed) or, as suggested by one commenter, on an
even earlier schedule than full SIP revisions. Similarly, some
suggested that the deadline for the first set of NOX
allocations submitted with an abbreviated SIP revision should be the
same as the NOX allocations deadline for a full SIP revision
(i.e., that the deadline for allocations in an abbreviated revision
should be October 31, 2006, instead of the proposed deadline).\29\ Some
commenters suggested that sources should be provided earlier knowledge
of their allocations in order to plan for compliance.
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\29\ The deadline that EPA proposed for submitting
NOX allocations with an abbreviated SIP revision is
September 30, 2007 for 2009, 2010 and 2011, as specified in the
proposed regulatory text at Sec. 51.123 (70 FR 49746). Through an
inadvertent error the preamble to the NPR listed a different date;
the preamble indicated that the proposed deadline for such
allocations would be October 31, 2007 (70 FR 49731).
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A State commenter asserts that submitting an abbreviated SIP
revision under the proposed schedule will be problematic for some
States that may not be able to complete a State rulemaking prior to the
deadline for such submission.
The EPA is finalizing the proposed March 31, 2007 deadline for
submission of abbreviated SIP revisions to the Agency. Because of the
narrower scope of abbreviated SIP revisions, EPA anticipates that it
will be able to complete the approval process more quickly for such
revisions than for full SIP revisions. The EPA believes that it can
approve abbreviated SIP revisions in about 6 months from submission.
With abbreviated SIP revisions due to the Agency about 6 months later
than the deadline for full SIP revisions, EPA anticipates that approval
for both types of submissions would be feasible by about the same time,
that is by about September 2007.
The Agency is finalizing a deadline of April 30, 2007--instead of
September 30, 2007 as proposed--for States to submit to EPA their first
set of NOX allocations associated with an abbreviated SIP
revision (covering at least 2009, 2010 and 2011). The Agency revised
this deadline in order to provide sources with an earlier opportunity
to have notice of the State-determined NOX allocations.
A few industry commenters argued that the deadlines for recording
NOX allocations in source accounts for the CAIR FIP trading
programs should be earlier than proposed, to provide earlier knowledge
to sources of their allocations. One recommended that NOX
allocations for the CAIR FIP trading programs--whether determined by
EPA or determined by a State using an abbreviated SIP revision--be
recorded in source accounts by December 1, 2006 for 2009 through 2011.
Another industry commenter suggested that, if a State fails to meet
the October 31, 2006 deadline for allowance allocations in a full SIP
revision, EPA should immediately record the FIP allowance allocations.
The same commenter also suggested that NOX allocations
should be recorded in source accounts a minimum of 3 years prior to the
date they can be used for compliance and asserted that, if a source did
not know until a year before the compliance deadline what its
allocation will be, the source ``would be completely unable to plan for
compliance.''
A State commenter suggests that the requirements for notification
of allocations under CAIR SIP trading programs and the CAIR FIP trading
programs should be the same. According to the commenter, if EPA
finalizes a lead time for recording NOX allocations under
the CAIR FIP trading programs of less than 3 years for the first 4
control periods, ``the same flexibility
[[Page 25354]]
should be extended to approved CAIR SIP trading programs.''
In determining the final NOX allocation recordation
deadlines, abbreviated SIP submission deadlines, and schedules for
determining NOX allocations, the Agency is balancing the
goals of (1) providing information in advance to source owners and
operators regarding their future CAIR NOX allocations in
order to facilitate their decision-making concerning compliance with
the requirements to hold allowances and (2) providing States choosing
to allocate CAIR NOX allowances sufficient time to prepare
and submit SIP revisions (full or abbreviated revisions) setting forth
the State allocation methodology and prepare and submit unit
allocations for specific years and providing EPA sufficient time to
review and approve these SIP revisions and record these unit
allocations. The EPA made adjustments to the proposed NOX
allocation schedules in response to public comments received on the
proposal. The Agency believes that the final schedules achieve a
reasonable balance between these goals within the constraints of the
available time.
The Agency is finalizing a deadline of September 30, 2007 (instead
of December 1, 2007 as proposed) for recording NOX
allocations for 2009 for the CAIR FIP trading programs, whether EPA-
determined or State-determined using an abbreviated SIP revision. This
is the same deadline that EPA is finalizing for recording the first set
of State-determined NOX allocations in a full SIP revision,
as discussed above. This is the earliest feasible recordation date
based on EPA's assumption that it will take about a year to approve a
full revision and about 6 months to approve an abbreviated revision.
The EPA would like to stress that, if State-determined NOX
allocations are approved earlier than this deadline (under a full SIP
revision or an abbreviated SIP revision) the Agency intends to record
the State-determined allocations in source accounts as soon as
possible. The Agency does not intend to wait until the recordation
deadline to record State-determined allocations and will record EPA-
determined allocations for 2009 by this deadline in the absence of an
approved full SIP revision or an approved abbreviated SIP revision
providing for State-determined allocations.
Similarly, the Agency is finalizing a recordation deadline of
September 30, 2008 (instead of December 1, 2008) for recording CAIR FIP
NOX allocations for 2010; and September 30, 2009 (instead of
December 1, 2009) for recording CAIR FIP NOX allocations for
2011, 2012 and 2013. The Agency does not intend to wait until these
deadlines to record State-determined allocations and will record EPA-
determined allocations for 2010, 2011, 2012 and 2013 according to these
deadlines in the absence of an approved full SIP revision or an
approved abbreviated SIP revision providing for State-determined
allocations. The Agency will record EPA-determined allocations in
source accounts one year at a time for 2009 and 2010 in order to
provide flexibility to States to determine allocations for their
sources.
Beginning with allocations for the 2014 compliance year, EPA is
finalizing the proposed recordation deadlines for CAIR FIP
NOX allowances. That is, beginning with the 2014 control
period and for each control period thereafter, EPA intends to record
NOX allocations for the CAIR FIP trading programs in source
accounts by December 1 of each year for the control period 4 years
after the year in which the allocations are recorded. This approach
will provide sources with their allocations about 3 years in advance.
For example, EPA will record FIP allocations for the 2014 control
period by December 1, 2010. The Agency will record EPA-determined
allocations only in the absence of an approved full SIP revision or an
approved abbreviated SIP revision providing for State-determined
allocations.
Table VI-2, below, summarizes the final NOX allocation
recordation deadlines for the CAIR FIP trading programs. Deadlines for
future control periods not shown in the table follow the same pattern
shown for 2014 through 2016. Note that these are the latest dates by
which EPA will record CAIR FIP NOX allocations. The EPA
intends to record State-determined CAIR FIP NOX allocations
as soon as possible after approval of abbreviated SIP revisions.
Table VI--2.--Recordation Deadlines for CAIR FIP NOX Allocations
------------------------------------------------------------------------
Deadline by which FIP NOX
allocations are recorded (EPA-
CAIR control period determined allocations or state-
determined allocations using
abbreviated SIP revision)
------------------------------------------------------------------------
2009................................... September 30, 2007.
2010................................... September 30, 2008.
2011................................... September 30, 2009.
2012................................... September 30, 2009.
2013................................... September 30, 2009.
2014................................... December 1, 2010.
2015................................... December 1, 2011.
2016................................... December 1, 2012.
------------------------------------------------------------------------
As discussed in the FIP NPR (70 FR 49731), EPA acknowledges that it
is preferable for source owners and operators to have at least 3 years
lead time with regard to allowance allocations when feasible. A shorter
lead time would reduce the period for buying or selling allowances and
could prevent sources from participating in allowance futures markets,
a mechanism for hedging risk and lowering costs (CAIR NFR, 70 FR
25279). Although lead time may impact the selection of trading
strategies, as discussed further below, EPA believes that the selection
of compliance methods (e.g., installation of emission control
technology, fuel switching, or allowance purchases) should not be
impacted by the amount of allowances a source is allocated for a given
year.
The final schedule for recording NOX allocations for the
CAIR FIP trading programs in today's rulemaking provides that
allocations will be recorded with at least 3 years lead time in all but
the initial 4 compliance years. For those initial years, the Agency
will work with the States to be able to record State-determined
NOX allocations as soon as feasible and will record EPA-
determined allocations by the recordation deadlines in the absence of
timely, approved full SIP revisions or timely, approved abbreviated SIP
revisions providing for State-determined allocations.
Table VI-3, below, summarizes the final recordation deadlines for
NOX allocations for the CAIR SIP model trading rules (i.e.,
NOX allocations contained in full SIP revisions). Deadlines
for future control periods not shown in the table follow the same
pattern shown for 2015 and 2016. The EPA intends to record State-
determined allocations as soon as possible after approval of full SIP
revisions.
Table VI--3.--Recordation Deadlines for CAIR SIP Model Rule NOX
Allocations
------------------------------------------------------------------------
Deadline by which SIP NOX
allocations are recorded (for
CAIR control period States choosing to use the CAIR
SIP model rules)
------------------------------------------------------------------------
2009................................... September 30, 2007.
2010................................... September 30, 2007.
2011................................... September 30, 2007.
2012................................... September 30, 2007.
2013................................... September 30, 2007.
2014................................... September 30, 2007.
2015................................... December 1, 2009.
2016................................... December 1, 2010.
------------------------------------------------------------------------
It is likely that source owners and operators will know or at least
have a reasonable understanding of the likely
[[Page 25355]]
amounts of their NOX allocations substantially earlier than
the deadlines for recording allocations in source accounts. States
submitting full CAIR SIP revisions must notify EPA of their initial set
of unit-by-unit NOX allocations (covering at least 2009,
2010 and 2011) by October 31, 2006. As indicated in the CAIR, the
States have broad discretion in making unit-by-unit allocations, and
EPA's review will center on whether the total allocations in a given
year exceed the State's trading budget. See Sec. Sec.
51.123(o)(2)(ii)(A) and (aa)(2)(iii)(A). The Agency intends to
determine unit-by-unit NOX allocations for the initial
compliance years of the CAIR FIP trading programs by the same date,
October 31, 2006 (covering 2009 through 2014). States submitting
abbreviated SIP revisions must notify EPA of their unit-by-unit
NOX allocations for the CAIR FIP trading programs by April
30, 2007 (covering at least 2009, 2010 and 2011). As is the case for
States submitting full SIP revisions, EPA's review of unit-by-unit
allocations will center on ensuring that the State budget would not be
exceeded.
Moreover, through each State's public rulemaking, adjudicative,
and/or legislative processes for determining allocations, source owners
and operators will likely be aware of their State's plans regarding
NOX allocations even in advance of the deadlines by which
the States must submit their unit-by-unit allocations to EPA. For
example, the public is likely to know whether the State is planning to
allocate using the example NOX allocation method provided in
the CAIR SIP model rules, or what alternative allocation method the
State is planning to use. This knowledge would give owners and
operators a sense for what their allocations will be.
An industry commenter asserted that, if a source did not know until
a year before the compliance deadline what its allocation will be the
source ``would be completely unable to plan for compliance,'' stating
as a reason ``it takes longer than a year to install the controls that
might be necessary to meet an unexpectedly low allocation.'' Another
commenter asserted that ``Sources use the period of time between
finalization of source-by-source allocations and the control period to
plan and implement any strategy necessary to achieve compliance.'' The
Agency disagrees with these arguments. The EPA believes--and general
economic theory suggests--that for owners and operators of sources
covered by CAIR trading programs, the determination regarding what will
be the lowest cost compliance methods (e.g., installation of emission
control technology, fuel switching, or allowance purchases) should not
be impacted by the amount of allowances a source is allocated for a
given year.
The Agency believes the decision to install NOX control
technology will be made based on evaluating the cost to that source of
installing controls compared to the price of NOX allowances
in the allowance market. For a particular source, if the cost to
control a ton of NOX emissions is lower than the
NOX allowance price, then the source will likely choose to
control emissions. This is the case regardless of the amount of
allowances allocated to the source since using an allocated allowance
to cover emissions has an opportunity cost (i.e., the value of that
allowance if it were sold in the allowance market) just as using a
purchased allowance to cover emissions has a cost (i.e., the price of
purchasing that allowance in the allowance market).
Such a source may choose to over-control and make greater
reductions than those required on average by the NOX trading
program cap either to free up allocated allowances that can then be
sold for more than it cost to free up the allowances or in order to
avoid purchasing allowances in the allowance market. In contrast, for a
particular source, if the cost to control a ton of NOX
emissions is higher than the NOX allowance price, the source
will likely choose to use allocated allowances or buy allowances to
cover its NOX emissions since that will cost less than
installing control technology.
The Agency strongly urges States to submit CAIR SIP revisions (full
or abbreviated revisions) to EPA in a timely manner. The EPA will
endeavor to work with States to ensure that the Agency can timely
approve SIP revisions and record State NOX allocations in
source accounts.\30\ However, once EPA-determined NOX
allocations are recorded for a particular control period (which would
only occur in the absence of a timely, approved full CAIR SIP revision,
or a timely, approved abbreviated CAIR SIP revision providing for
State-determined allocations), EPA intends not to record overlapping
State-determined allocations for that same control period. Rather, EPA
will work with the States to approve SIP revisions with State
allocations for control periods after the last control period for which
EPA-determined allocations have been recorded in source accounts. It
would be highly disruptive to the allowance market if EPA-determined
allocations that had been recorded and could be traded in the market
could subsequently be rendered invalid due to approval of overlapping
State allocations for the same control period.\31\
---------------------------------------------------------------------------
\30\ EPA believes that, if a State submits its CAIR SIP revision
later than the submission deadline (September 11, 2006 or March 31,
2007 for a full or abbreviated SIP revision, respectively), it is
unlikely that there will be adequate time for the Agency to review
and approve the SIP revision and record State-determined
NOX allocations by the recordation deadline under the FIP
for the 2009 compliance year. For a CAIR SIP revision submitted
after its deadline, EPA intends to withdraw FIP requirements in a
State as soon as practical after receiving approvable SIP revisions
and will work with any State to ensure a timely withdrawal of the
FIP and recording of State NOX allocations in source
accounts. The deadlines for recording CAIR FIP NOX
allocations and CAIR SIP NOX allocations are presented
above in Tables VI-2 and VI-3, respectively.
\31\ The discussion in this section focuses on the time frame in
which EPA plans to record EPA-determined allocations in order to
coordinate with the approval of SIP revisions and the recordation of
State allocations, assuming States choose to participate in the EPA-
administered CAIR NOX trading programs. The Agency will
also carefully consider the timing of a transition from federal to
State-implemented programs for any States choosing to use a method
other than the EPA-administered CAIR SIP trading programs to meet
their CAIR obligations.
---------------------------------------------------------------------------
For States choosing to submit full SIP revisions for CAIR, the
Agency suggests they consider designating any of the 4 specific
elements that can be included in abbreviated SIP revisions (e.g.,
NOX allocations) as being submitted for purposes of both a
full SIP revision and an abbreviated SIP revision. Because the Agency
anticipates that it will be able to approve abbreviated SIP revisions
more quickly than full SIP revisions, a State's designation of its
NOX allocations as an abbreviated SIP revision (as well as
part of a full SIP revision) may result in EPA being able to approve
the allocations portion more quickly and being able to record the
State-determined unit-by-unit allocations sooner.
The Agency intends to work with any State choosing to allocate
NOX allocations (whether through a full SIP revision or an
abbreviated SIP revision) and to ensure that the State's allocations,
rather than EPA-determined allocations, will be recorded as soon as
possible.
The Clean Air Act is designed to give States the first obligation
(and opportunity) to prevent significant contribution to a downwind
State's nonattainment problems. The EPA only acts in the case where a
State does not meet this obligation. The Agency is promulgating CAIR
FIPs as soon as possible to assure downwind States that emission
reductions will occur in time to help them meet their nonattainment
deadlines. Even though EPA is
[[Page 25356]]
promulgating FIPs, the Agency recognizes that the Clean Air Act assigns
first responsibility to the States, and it is EPA's preference to
defer, wherever possible, to States the decisions about control
mechanisms to prevent significant contribution, including States'
decisions about allocation of NOX allowances.
2. Method for Allocating NOX Allowances
Proposed NOX Allocation Methodology. In the NPR, EPA proposed a
NOX allocation approach for both annual and ozone season
allowances that is consistent with the example methodology presented in
the CAIR SIP model trading rules. The proposed methodology was the same
for annual NOX allowances and for ozone season
NOX allowances, except that the ozone season method uses
ozone season heat input not annual heat input.
For existing units, the proposed NOX allocation
methodology used input-based allocations, adjusting the heat input by
factors based on fuel type (described later in this section). As in the
example allocation methodology in the CAIR SIP model trading rules, for
existing units the Agency proposed to use heat input based on the
average of the 3 highest amounts of a unit's adjusted heat input for 5
years (2000 through 2004). The EPA took comment on using heat input
based on 3 or 4 years of data rather than 5 years.
For new units that have established baselines, EPA proposed that
allocations would be based on generation using a modified output
approach to convert output to heat input (described below), and
allocations to existing units would be updated to take into account new
generation, because new units would receive allocations from the pool
of allowances shared with existing sources. New units that have not yet
established baseline data would receive allowances from a new unit set-
aside.
The Agency proposed that EPA would allocate allowances to existing
units from the State's EGU NOX budget for the first 6
control periods (2009 through 2014) for existing sources on the basis
of historic baseline heat input. Consistent with CAIR, EPA proposed
January 1, 2001 as the proposed cut-off on-line date for considering
units as existing units. Allowances for 2015 and later would be
allocated from the State's EGU NOX budget annually, 3 years
in advance. These allocations would take into account output data from
new units with established baselines (modified by heat input conversion
factors to yield heat input numbers, as described below). As new units
enter into service and establish a baseline, they would be allocated
allowances in proportion to their share of the total calculated region-
wide heat input. Allowances allocated to existing units would slowly
decline as their share of total calculated heat input decreases with
the entry of new units. (Note that once a baseline heat input was
established for existing units, this baseline heat input would not
change).
EPA proposed to allocate allowances from a new unit set aside to
new units that have entered service but have not yet established a 5-
year baseline. The allowances from the set-aside would be distributed
based on a unit's reported emissions from the previous control period,
which would provide allowances for use in meeting the allowance-holding
requirement during the interim period before the unit would be
allocated allowances on the same basis as existing units.
Consistent with the CAIR SIP example allocation methodology, the
new unit set-aside would be equal to 5 percent of a State's emission
budget for the years 2009-2013 and 3 percent of a State's emission
budget for subsequent years. New units would begin receiving allowances
from the set-aside for the control period immediately following the
control period in which the new unit commences commercial operation,
based on the unit's emissions from the preceding control period. EPA
would allocate allowances from the set-aside to all new units in any
given year as a group. If there were more allowances requested than
exist in the set-aside, allowances would be distributed on a pro-rata
basis.
EPA received a number of comments on various aspects of the
proposed NOX allocation methodology. First, while most
commenters were supportive of allocating allowances to existing units
using historic heat input, some commenters advocated the use of output
data for determining allocations, suggesting that such an approach
would reward cleaner, more efficient generation, particularly with
updating.
Second, most commenters supported the use of a 5-year baseline for
allocating allowances based on heat input, noting that a longer period
of data collection is more likely to capture a unit's normal operating
conditions. One commenter suggested that a shorter baseline period
would allow new sources to enter the existing source pool in a more
timely manner and thus provide existing sources with more certainty.
One commenter requested clarification on the treatment of
replacement units under the allocation provisions, regarding whether
they would be treated as new units, and have to reestablish a baseline,
or maintain their allowance allocation similarly to retired units.
Several industry commenters made suggestions regarding the use of
new unit set-asides in the FIP NOX allocation methodology.
Some stated that EPA should provide that unused allowances from the
set-aside would be returned to existing units. The Agency proposed to
do so, and is finalizing that any unallocated allowances that remain in
the new unit set-asides will be allocated on a prorated basis to the
units that received allocations. See Sec. Sec. 97.142(d) and
97.342(d). One commenter argued against using a new unit set-aside.
Another commenter supported the use of a set-aside but argued that new
units should be provided access to allocations during their initial
year of operation.
In today's rule, EPA is finalizing most of the NOX
allowance allocation provisions as proposed. First, EPA is finalizing
the use of an input-based approach for allocating allowances. This
approach uses a baseline heat input comprised of operating data from
the years 2000-2004, and uses the average of the 3 highest heat input
years from this time period for allowance allocation calculations for
existing units. This baseline heat input will not be updated over time.
EPA believes, as it stated in the final CAIR, that allocating to
existing units based on a baseline of historic heat input data, rather
than output data, is desirable because accurate protocols currently
exist for monitoring this data and reporting it to EPA, and several
years of certified data are available for most of existing units. EPA
has chosen not to utilize an updating system for allocating allowances,
in order to avoid the subsidization of increased fuel use (or increased
electricity generation) and the associated market distortions. If
allocations were based on updated heat input (or updated output) data
then increased fuel use (or increased electricity generation) would
result in increased future allocations and thus would in effect be
subsidized.
For new units, EPA is finalizing the use of the proposed modified
output approach for calculating baseline heat input, described in
detail below, as well as the allocation to new units without a baseline
from a new unit set aside of 5 percent of a State's emission budget for
the years 2009-2013 and 3 percent of a State's emission budget for
subsequent years.
The Agency believes that it is reasonable to provide a set-aside
for allocations to new units and further
[[Page 25357]]
believes that it is reasonable not to provide access to allocations for
a new unit during its initial year of operation. The Agency's final
methodology provides allocations to new units based on the prior year's
emissions until the new unit establishes a baseline and is allocated as
an existing unit. The methodology does not provide allowances to a unit
in its first year of operation; however, it is straightforward,
reasonable to implement, and predictable (see preamble to final CAIR,
70 FR 25281).
As in the CAIR SIP example methodology, after 5 years of operation,
a new unit will have an adequate operating baseline of output data to
be incorporated into the calculations for NOX allocations
for existing units. (However, as discussed below in section VII of this
preamble, allowances are allocated to existing units several years in
advance, and a new unit with a baseline may need to continue to get
allowances from the new unit set-aside for a few years after the unit's
baseline is established.) The average of the highest 3 years from these
5 years will be multiplied by a heat-input conversion factor of 7,900
Btu/KWh to calculate the heat input value used to determine the new
unit's allocation from the pool of allowances for existing units. New
units will update the heat input numbers only once--for the initial 5-
year baseline period after they start operating. As in the CAIR SIP
example methodology, existing units as a group will not update their
heat input. This eliminates the potential for a generation subsidy
because current or future operating behavior will not impact the units'
allocations. Retired units will continue to receive allowances
indefinitely, thereby avoiding creation of a disincentive to retire
less efficient units.
As discussed in section VII in today's preamble, EPA is adopting
technical changes to the SIP rules that make it clear that a separate
request for new-unit-set-aside allowances must be submitted for each
control period for which they are sought and must be submitted by May 1
(rather than July 1) of that control period; the final FIP rules are
consistent with these technical changes.
Regarding replacement units, EPA's allocation approach allows such
units to retain their NOX allowance allocation, so as not to
provide a disincentive to replace (e.g., repower) older, less-efficient
units. As discussed in section VII in today's preamble, a definition of
``replacement'' has been added and the definition of ``commence
commercial operation'' has been clarified in the CAIR SIP model trading
rules in order to clarify the treatment of replacement units. The final
CAIR FIP rules are consistent with these changes in the SIP rules.
Adjustments to Heat Input Data by Fuel Factors. In the NPR, EPA
proposed an allocation methodology based on the example allocation
methodology in the CAIR SIP model rules, which included adjustments to
heat input by fuel type, using fuel adjustment factors that are based
on average historic NOX emissions rates by 3 fuel types
(coal, natural gas, and oil) for the years 1999--2002. These adjustment
factors are 1.0 for coal-fired units, 0.6 for oil-fired units, and 0.4
for units fired with all other fuels (e.g., natural gas). The factors
reflect the inherently different emissions rates of different fossil
fuel-fired units.
A number of commenters supported the use of the proposed fuel
factors to adjust heat input, arguing that adjusting heat input for
fuel type results in a more equitable allocation scheme that would
provide allowances that are in closer proportion to historic emissions.
Commenters supporting the use of fuel factors also noted that EPA
should retain these fuel factors in order to maintain consistency with
the model cap-and-trade rule, which would ease any necessary
transitions from a CAIR FIP to a CAIR SIP if most States are expected
to eventually adopt the model rule. One commenter opposing the use of
fuel factors for individual unit allocations argued that adjusting
baseline heat input for fuel use is inequitable and penalizes clean
generation and is irreconcilable with EPA's ``highly cost-effective''
determination and EPA's air quality modeling. This same commenter also
questioned EPA's legal authority to use fuel adjustment factors in the
allocation of allowances.
EPA is finalizing the use of the proposed adjustment factors (1.0
for coal-fired units, 0.6 for oil-fired units, and 0.4 for units fired
with all other fuels (e.g., natural gas)), to adjust baseline heat
input. EPA believes that these adjustment factors appropriately
consider the inherently higher emissions rate of coal-fired units and
the relatively greater burden on these units to control emissions.
EPA's determination that CAIR control levels are highly cost
effective was assessed at the regional, rather than the State, level
because of the ability of sources to meet control requirements through
a regional cap-and-trade program for EGUs. While the chosen allocation
methodology can affect the distribution of compliance costs under the
cap-and-trade program, it will have little effect on overall compliance
costs or environmental outcome. This is because the incentives provided
by cap-and-trade encourage economically efficient compliance over the
entire region, as discussed above. The economically efficient outcome
will not depend on the relative levels of individual unit allowance
allocations.
For this same reason, air quality modeling is not relevant to the
determination of allowance allocations, and a given allowance
allocation approach, particularly one based on historic data, would
have no affect on air quality modeling.
Finally, EPA disagrees with the commenter who questioned its legal
authority to use this allocation scheme. The approach selected by EPA
is reasonable, is supported by the information available to EPA and is
well within the scope of EPA's authority to act. For further discussion
of this issue, see the CAIR notice of final action on reconsideration
signed the same day as the final FIP notice. While the reconsideration
notice addresses the use of fuel factors in the context of determining
the State NOX budgets, the same rationale applies to the use
of fuel factors for individual unit allocations.
Cogeneration Units. In the NPR, EPA proposed that for a new
cogeneration unit that is a boiler, annual heat input values used to
calculate the unit's baseline heat input for purposes of allowance
allocations would be determined by converting the available thermal
output (Btu) of useable steam from the boiler to an equivalent heat
input by dividing the total thermal output (Btu) by a standard boiler/
heat exchanger efficiency rate of 80 percent. In today's rule, EPA is
finalizing this approach.
For new cogeneration combustion turbines, EPA proposed in the NPR
to calculate annual heat input for such a unit by: Converting the
available thermal output of useable steam from a heat recovery steam
generator (HRSG) to an equivalent heat input by dividing the total
thermal output (Btu) by a standard boiler/heat exchanger efficiency
rate of 80 percent; and then adding the equivalent heat input for the
electrical generation from the combustion turbine, which is calculated
by multiplying the turbine's generation (in KWh) by the conversion
factor of 3,413 Btu/kWh. EPA is finalizing this approach as proposed.
One commenter suggested that EPA's approaches for allocating to new
cogeneration boilers and combustion turbines be modified. This
commenter argued that EPA's proposed
[[Page 25358]]
methodology improperly rewards new cogeneration units by not matching
the rate of allocation with the degree of benefits realized by a
specific cogeneration unit. The commenter further asserts that EPA's
methodology would give a unit that only slightly improves its
efficiency the same allowance allocation benefit as a unit that
achieves a large increase in efficiency.
The commenter proposes an alternative allocation approach for
cogeneration units, the primary goal of which is rewarding electricity
as a higher value product than steam.
As EPA noted in the final CAIR preamble, steam and heat output,
like electrical output, are useable forms of energy that can be
utilized to power other processes. Because it would be nearly
impossible to adequately define the efficiency in converting steam
energy into the final product for each of the various processes and
uses for these outputs, EPA selected an approach that focuses on the
effectiveness of a cogeneration unit in capturing energy from fuel
input and converting it into the useable forms of steam and
electricity. EPA's approach does not attempt to regulate the efficiency
of the processes that are powered by the steam output from cogeneration
units.
Further, EPA disagrees with the commenters suggestion that the
Agency's approach would not provide an incentive for cogeneration units
to operate efficiently. The use of modified output, rather than actual
heat input, as the basis of determining allowance allocations will
promote the development of cleaner and more efficient generation of
both electricity and process steam. EPA's approach rewards cogeneration
combustion turbines that have HRSGs capable of recapturing greater than
80 percent of the available heat from the combustion turbine exhaust
and any auxiliary burners. Furthermore, EPA's use of a 3,413 btu/KWh
factor to convert electrical output from the combustion turbine to an
equivalent heat input assumes that 100 percent of the combustion
turbine's heat input that is not converted to electricity is sent to
the HRSG as heat. This approach neglects energy losses in the
combustion turbine and generator. EPA believes that any efficiency
gains made by reducing these losses will be rewarded by the Agency's
approach, by resulting in greater electricity and/or steam output for a
given amount of heat input.
Comments on providing sources owned by small entities with a
greater share of allowances: In the NPR, EPA took comment on allocating
NOX allowances in such a way as to provide sources owned by
small entities with a greater share of allowances. As discussed at
proposal, this option was based on the recommendation of one of the
Small Business Advocacy Review Panel members. This option would
necessitate reducing the number of NOX allowances available
to other affected sources in order to ensure that the overall reduction
requirements of CAIR are achieved, but could potentially provide
economic relief to small entities that demonstrate economic hardship as
a result of the rulemaking.
A number of commenters expressed opposition to such an allocation
approach arguing that it is inappropriate for EPA to subsidize small
entity sources through additional allocations that result in reduced
allowance allocations and increased compliance costs for larger
sources. Additionally, some of these commenters noted that such an
approach could open the NOX allowance allocation system to
gaming, such as through a company establishing subsidiaries in order to
obtain additional allowances made available for small entities.
Finally, one of these commenters suggested that such an approach would
deviate from the CAIR model rules, and could restrict a State's freedom
if the State plans to transition from CAIR FIP allocations to CAIR SIP
allocations. One commenter expressed support for the approach described
in the NPR, but noted the need for additional clarification on the
definition of hardship and how such an approach would fit in with the
compliance supplement pool. No potentially affected small entities, as
defined in the NPR, submitted comments in support of this approach.
EPA is not finalizing a NOX allocation approach that
gives a greater share of allowances to small entities that demonstrate
hardship. EPA believes that the flexibilities inherent in the CAIR FIP
trading program, as well as the existence of the Compliance Supplement
Pool in the first year of the program, will reasonably address concerns
about the economic impact of the rule on all sources. Additionally, the
lack of commenter support for such an approach suggests that such an
approach may not be warranted.
Comments on use of an auction to distribute NOX allowances. In the
NPR, the Agency asked for comment on using a combination of direct
allocation and auctions for distributing NOX allowances in
the proposed CAIR FIP trading programs. The proposed approach was
analogous to the approach in the Administration's proposed Clear Skies
legislation: For the first CAIR NOX control period (2009)
the Agency would allocate 100 percent of the allowances using the fuel-
factor adjusted heat input approach described above. For the second
control period (2010) the Agency would allocate 99 percent of
allowances to units and auction the remaining 1 percent. The percentage
of allowances distributed via auction would increase over time, with
the Agency distributing via auction an additional 1 percent of
allowances every year for 20 years and then an additional 2.5 percent
of allowances every year thereafter, until eventually 100 percent of
allowances would be distributed via auction. The Agency also requested
comment on appropriate auction procedures for the proposed CAIR FIP
trading programs.
The majority of commenters opposed the use of an auction for
allocating allowances. One commenter expressed support for an auction
and the specific approach that EPA outlined at proposal. This commenter
suggested that EPA modeled the auction procedure after that used in the
Acid Rain Program. EPA does not necessarily agree with the specifics of
the arguments submitted by commenters opposing the use of an auction.
However, in light of the comments, EPA is concerned that adoption of
the auction approach would be premature because the Agency lacks
sufficient information about the potential impact of such auctions on
sources and about the appropriate procedures for implementing such
auctions. Consequently, the allocation provisions for today's final
rule do not include auctions. Today's final allocation methodology,
described earlier in this section, provides for the direct distribution
of allowances to affected units.
G. Allocation of SO2 Allowances to Sources
The Agency proposed a CAIR FIP SO2 cap-and-trade program
substantively identical to the CAIR SIP model SO2 trading
rule, which relies on title IV allowances. Title IV allowances have
already been allocated in perpetuity to individual units by title IV of
the CAA (70 FR 25278). Thus, the FIP proposal did not include an
allocation methodology for SO2 allowances, except with
regard to opt-in units.
The Agency received several comments on the use of the title IV
allowances in the CAIR FIP SO2 program. EPA also received
several petitions for reconsideration of the CAIR, and granted
reconsideration concerning claims that inequities result from using
title IV allowance allocations in the CAIR program. EPA received,
considered, and responded to numerous
[[Page 25359]]
comments on this issue as part of the reconsideration process. As
explained in the CAIR Notice of Final Action on Reconsideration signed
the same day as this action, EPA has decided not to alter the approach
taken in the final CAIR.
In today's action, EPA is adopting the CAIR model SO2
trading rules as the CAIR FIP SO2 trading rules, with minor
revisions to allow for Federal implementation. Thus, EPA is adopting
the approach taken in the final CAIR for SO2 allowance
allocation and State SO2 budgets, which was not changed
during the reconsideration process. This approach is explained below,
with a brief explanation of EPA's response to the major comments
received on this process. A more complete discussion of this issue and
the comments received appears in the preamble to the CAIR Notice of
Final Action on Reconsideration.
Several issues on SO2 allowance allocations and State
budgets were raised both in comments on the proposed CAIR FIP and in
the context of the CAIR reconsideration process. EPA has responded to
such FIP comments in the CAIR Notice of Final Action on
Reconsideration, a separate action signed the same day as this notice.
These comments include the following claims:
Inequities result from EPA's allocation approach, i.e.,
using title IV allowance allocations in the CAIR FIP trading program. A
few commenters suggested that EPA instead create new CAIR
SO2 allowances and allocate these allowances using a
methodology similar to that adopted in the CAIR SIP model trading rule
for NOX.
EPA's approach to SO2 allowance allocation and
State budgets creates inequities between States.
New units and independent power production (IPP)
facilities, which did not receive allocations under the Acid Rain
Program, are unfairly disadvantaged by the CAIR SO2 budget
and allocation methodology.
A variety of approaches to SO2 allowance allocation were
raised and analyzed during the CAIR rulemaking process, including the
approach EPA adopted in the final CAIR SIP model rule and in today's
final FIP trading rule. Alternative approaches analyzed for the final
CAIR included the creation of new CAIR SO2 allowances and
allocating on the basis of historic tonnage emissions, heat input (with
alternatives based on heat input from all fossil generation or heat
input from coal- and oil-fired generation only), and output (with
alternatives based on all generation and all fossil-fired generation).
(See CAIR Corrected Response to Comments, section X.A.26, Docket
: EPA-HQ-OAR-2003-0053-2172).
Furthermore, as a part of the CAIR reconsideration, EPA reanalyzed
State differences in allocation approaches using the same methodology
as for the final CAIR, comparing the title IV approach and seven
alternative approaches (those discussed above, and those raised by the
commenters on the reconsideration, discussed below). EPA also performed
additional analyses to evaluate the use of title IV allowance
allocations in the final CAIR to see how companies and States fared in
terms of the amount of allowances allocated relative to their projected
SO2 emissions. In these analyses, EPA compared 3 alternative
SO2 allowance allocation methodologies that were either
referred to by the petitioner in the petition for reconsideration or by
commenters on the proposed response to the petition, to the use of
title IV SO2 allowance allocations. EPA considered the
following approaches, all using 1999-2002 data: (1) Pure heat input;
(2) heat input adjusted for fuel type (e.g., coal, oil and gas); and
(3) heat input adjusted for fuel type and coal type (e.g., bituminous,
sub-bituminous, and lignite).
Each allocation methodology suggested by the petitioner and
commenters during the CAIR rulemaking results in both advantages and
disadvantages for different companies and States. However, as EPA
explained in the CAIR Response to Comments and again in the CAIR Notice
of Final Action on Reconsideration, the analyses performed by EPA
demonstrate that EPA's use of title IV allowance allocations is
reasonable (see CAIR Notice of Final Action on Reconsideration, signed
in a separate action the same day as this notice).
Comments about new units and IPPs, which did not receive
allocations under the acid rain program, being disadvantaged by the
CAIR SO2 budget and allocation methodology are also
addressed in the CAIR Notice of Final Action on Reconsideration, as
well as in the applicability section (VI.E) of this final FIP action.
EPA considered the allocation of title IV allowances to CAIR region
units that are not currently in the Acid Rain Program but that could
opt into the Acid Rain Program and receive title IV allowances (see 42
U.S.C. 7651i and 18 CFR part 74). EPA assumes that companies owning
non-Acid Rain units subject to CAIR will opt into the Acid Rain Program
to receive title IV allowances to cover a portion of the units'
emissions under CAIR. EPA believes this assumption is reasonable
because, as explained in the CAIR Notice of Final Action on
Reconsideration, each of these units has the option of becoming an Acid
Rain Program opt-in unit at little cost.
The fact that non-Acid Rain units may opt into the Acid Rain
Program and receive allocations addresses the concern that the CAIR
applicability provisions sweep in units that are not covered under the
Acid Rain Program and thus do not receive Acid Rain Program
allocations. EPA maintains that the statutory and regulatory provisions
governing Acid Rain Program opt-in units allow units that are subject
to CAIR, but not to the Acid Rain Program, to opt into the Acid Rain
Program. See CAIR Notice of Final Action on Reconsideration--signed the
same day as the final FIP rule--for additional discussion of authority
under section 410(a) of the Clean Air Act.
Further, it should be noted, that not all units required to
participate in the Acid Rain Program receive allocations under the Acid
Rain Program. While, as noted above, the Acid Rain Program provides
allowances for non-Acid Rain units opting into the program as long as
they remain non-Acid Rain units, the Acid Rain Program provides no
allocations for virtually all new Acid Rain units (i.e., Acid Rain
units commencing commercial operation on or after November 15, 1990)
and for all existing units that were not Acid Rain units when the
allowance allocations were completed in 1998 but that become Acid Rain
units thereafter. By using title IV allowance allocations in the CAIR
SIP SO2 model trading program (adopted today as the CAIR FIP
SO2 trading program), EPA is taking the same approach to
allocations for these units.
Finally, it is worth noting that not all title IV allowances for
future years have been allocated. 250,000 allowances will continue to
be auctioned for the years 2012 and thereafter, and these allowances
could be used to comply with the requirements of CAIR. The availability
of these allowances ensures that all sources, including new units and
non-title IV sources, will have access to a pool of allowances.
In summary, EPA's use of title IV allowances in the CAIR (and CAIR
FIP) SO2 trading program is supported by: (1) EPA's
determination that this approach is necessary to maintain the efficacy
of the title IV program and prevent erosion of confidence in cap-and-
trade programs in general; and (2) the results of EPA's analysis which
indicate that the allocations resulting from this approach are
reasonable.
[[Page 25360]]
A few comments related to SO2 budgets and allocations
submitted in response to the proposed CAIR FIP were unique to this
action and, therefore, are addressed below.
One FIP commenter states that the CAIR final allocation methodology
is ``inequitable'' because lower emitting units would buy allowances
from higher emitting units that install emission controls. However, it
is unclear why such a result would actually be inequitable. On the
contrary, the owner of each of the units involved would be choosing to
adopt the most economic compliance strategy in light of the unit's
emission control costs and the market value of allowances. The ability
of the owners to make such choices reflects the flexibility provided by
a cap-and-trade program.
Moreover, EPA believes that for purposes of evaluating various
allocation methodologies, computing allocations on a company-by-company
basis is more appropriate than comparing allocations on a unit-by-unit
basis. This is because, while one unit could be allocated fewer
allowances under one methodology, another unit owned by the same
company could be allocated more allowances, which may offset the
smaller allocation of the first unit.
This same commenter performed its own analysis of differences in
SO2 State budgets for select States, comparing EPA's
finalized method to ``a heat input method (similar to the
NOX allowance allocation method).'' The commenter described
the 6 of its selected States as ``[l]ow-emitting states that already
have made substantial investments in SO2 emissions controls
(e.g., South Carolina, Minnesota, Iowa, Wisconsin, Virginia, and North
Carolina).'' Another 5 States the commenter analyzed were described as
``high-emitting states (e.g., Ohio, Georgia, West Virginia,
Pennsylvania and New York).'' See Docket ID: EPA-HQ-OAR-2004-0076-0204.
The commenter's characterization of States as ``low-'' or ``high-
emitting'' and as having made ``substantial'' SO2 control
investments is entirely unsupported. The commenter provided no criteria
or factual basis for making such characterization, and the analysis
submitted by the commenter appears to disregard the cost of installing
controls in order to generate any excess allowances in States that are
characterized as ``high-emitting.'' Further, only 3 utilities from the
State's listed as ``low-emitting'' by the commenter, submitted adverse
comments on EPA's use of title IV.
Nevertheless, as mentioned above, EPA performed a comprehensive
State-by-State SO2 budget analysis of all CAIR States and a
variety of alternative methodologies to evaluate the claim of inequity
as a part of the CAIR Notice of Final Action on Reconsideration. In
that analysis, EPA demonstrated that the CAIR (and CAIR FIP)
SO2 State budget and allocation methodology provides a
reasonable result. EPA's use of title IV allowances in the CAIR (and
CAIR FIP) SO2 trading program is supported by: EPA's
determination that this approach is necessary to maintain the emissions
reductions from, and effectiveness of, the title IV program; prevent
erosion of confidence in cap-and-trade programs in general; and EPA's
analysis showing that the allocations resulting from this approach is
reasonable.
H. Allowance Banking
Allowance banking is the retention of unused emissions allowances
from one calendar year for use in a later calendar year (or from one
ozone season for use in a later ozone season). Banking allows sources
to make reductions beyond required levels and ``bank'' the unused
allowances for use later. Generally speaking, banking has several
advantages. Allowance banking can encourage earlier or greater
reductions than are required from sources, stimulate the market and
encourage efficiency, and provide flexibility in achieving emissions
reduction goals. The CAIR FIP NPR proposed a trading program with
unrestricted banking.
Comments on the Banking of Allowances
Several commenters supported EPA's proposal to allow unrestricted
banking of allowances. In general, they agreed with EPA that this
approach: provides incentives for sources to make emission reductions
beyond required levels, in some cases earlier emission reductions; is
consistent with the CAIR SIP model trading rules; and provides
flexibility in compliance strategies. Supporters of unrestricted
banking also agreed with the EPA assessment that the use of banking
restrictions, such as the ``flow control'' in the Ozone Transport
Commission (OTC) cap-and-trade program, is complicated to understand
and implement and caused market complexity.
Other commenters supported the use of banking restrictions claiming
that allowing unrestricted banking delays emission reductions. These
commenters did not provide additional details regarding an alternative
to banking or, if banking were to be restricted, what restrictions
should be used.
Final CAIR FIP Cap-and-Trade Program
Today's final CAIR FIP cap-and-trade programs allow unrestricted
banking. EPA disagrees with commenters who claimed that unrestricted
banking simply delays emission reductions. The ability of sources to
sell allowances, without restriction, provides incentives for sources
to over-control their emissions prior to emission reduction deadlines.
As discussed in the CAIR NFR (section VIII.E), this creates a ``glide
path'' towards the final emission cap levels. Emission levels along the
glide path, which may not equate to the emissions caps for any given
year, are the levels of emission reductions that are shown to address
the pollution transport issue.
EPA also agrees with supporting commenters that banking
restrictions, such as ``flow control,'' introduce uncertainty into
source planning by introducing the potential for devaluing allowances
on short notice. EPA also agrees that allowing unrestricted banking in
the CAIR FIP cap-and-trade programs provides consistency with the CAIR
cap-and-trade programs.
I. Incentives for Early Reductions
When sources reduce their SO2 and NOX
emissions prior to the first phase of a multi-phase cap-and-trade
program, it creates a slope of emissions that gradually declines over
time, an emission reduction ``glide path'' that provides early
environmental benefit and lowers the costs of compliance. Each of the
cap-and-trade programs proposed in the CAIR FIP NPR incorporated the
incentives for early reductions provided in the respective CAIR model
trading programs: i.e., the banking of title IV allowances allocated of
vintage years pre-2010 into the CAIR SO2 trading program,
the compliance supplement pool (CSP) in the CAIR NOX annual
program, and the banking of NOX SIP Call allowances of pre-
2009 vintage into the CAIR NOX ozone season program. While
EPA believes that modeling has shown that the CAIR and CAIR FIP
timelines are as early as feasible, early reductions incentives provide
a mechanism for those facilities that can reduce their emissions prior
to the implementation deadline to receive some credit. By shifting some
emission reductions earlier, some environmental benefit is realized
earlier. In addition, the CAIR FIP trading programs' early reduction
mechanisms provide a way for companies that may have some difficulty
meeting the implementation timeline to start early and achieve the
mandated reductions on a more gradual pace. These mechanisms, along
with
[[Page 25361]]
public comment on each, are discussed below.
1. SO2 Annual Program
The proposed CAIR FIP SO2 annual cap-and-trade program
would provide incentives for sources to reduce their SO2
emissions prior to the 2010 implementation date by allowing affected
sources to use title IV SO2 allowances of vintage 2009 and
earlier for compliance with the CAIR FIP program at a 1-to-1 ratio. The
CAIR FIP trading program adopts the early reductions incentive
mechanism in the CAIR model trading rules. The modeling for the CAIR
assumed the existence of such incentive mechanisms and showed that the
SO2 cap-and-trade program, with this early incentive
mechanism, will achieve the level of SO2 reductions needed
to meet the CAIR goals.
Comments on Early Emission Reduction Incentives in the CAIR FIP SO2
Cap-and-trade Program. In general, commenters supported EPA's approach
of allowing sources to bank title IV SO2 allowances into the
CAIR FIP SO2 trading program at a 1-to-1 ratio. One
commenter opposed this mechanism because ``EPA does not explain how
carrying these allowances over to the CAIR bank creates an incentive
for reductions if the allowances already exist.'' The commenter
continues by highlighting that EPA modeling projects emissions to be
approximately 37 percent above the annual CAIR emission caps for the
first 5 years after the compliance deadline.
Final CAIR FIP SO2 Annual Cap-and-trade Program. Today's
action allows sources to bank title IV SO2 allowances into
the Federal CAIR SO2 annual cap-and-trade program at a 1-to-
1 ratio. EPA disagrees with the comment that allowing banked allowances
does not promote early reductions because allowances were banked before
CAIR was proposed or finalized. Allowing sources to bank title IV
allowances in the CAIR FIP SO2 annual program provides
incentive for sources to: (1) Preserve reductions already made (whether
before or after CAIR was proposed) rather than negating these
reductions by increasing their emissions before 2010 and ``spending
down'' their bank; and (2) to reduce further emissions before 2010 and
increase their bank. This incentive is created by allowing sources to
benefit financially from allowances banked before 2010 that retain
their value in the CAIR FIP and CAIR SO2 trading programs.
All pre-2010 vintage allowances will retain their value in the CAIR and
CAIR FIP trading programs because they can be used (on a one-allowance-
per-ton basis) to meet the requirement to hold allowance to cover
emissions under the CAIR FIP (and CAIR) trading programs. In summary, a
source has an incentive to continue banking allowances before 2010,
which results in the preservation of existing emission reductions and
the creation of further reductions.
The commenter noted that allowing banking into the CAIR FIP
SO2 annual program results in the emissions being greater
than the cap levels. However, the gradually declining emissions ``glide
slope'' is one of the keys to cap-and-trade programs achieving cost-
effective reductions. As discussed above, EPA's modeling for CAIR
showed that, with the pre-2010 title IV SO2 allowance
banking and subsequent use of the bank, the environmental goals of
reducing the interstate transport of pollution will be achieved.
2. NOX Annual Program
The FIP NPR proposed a CAIR FIP NOX annual cap-and-trade
program that included a Compliance Supplement Pool (CSP) to provide an
incentive for early, annual NOX annual emission reductions.
The CSP would provide, for each affected State, a pool of CAIR
NOX annual allowances from which EPA could distribute
allowances for early, surplus NOX emissions reductions
occurring in the years 2007 and 2008. The CSP would provide a total of
200,000 annual NOX allowances of vintage 2009 for the CAIR
region (including Delaware and New Jersey's share of the pool),
apportioned to each State, which would be in addition to each State's
annual NOX budgets. Table V-3 in this preamble sets forth
the CSP amounts by State. The CAIR FIP trading program adopts the CSP
established in the CAIR model trading program. However, where the CAIR
model trading program provides States with flexibility to determine
what constitutes an early reduction qualifying for an allocation of
allowances from the CSP, the Administrator allocates the CSP in the
CAIR FIP trading program. As a result, the CAIR FIP, provides a
specific methodology for determining early reductions than is in the
CAIR model rules. This methodology is explained below.
As proposed, Federal CSP allowances could be distributed to sources
based upon: (1) Implementing NOX control measures that
result in early emission reductions in 2007 or 2008, i.e., reductions
beyond what is required by any applicable State or Federal emissions
limitation; or, (2) a demonstration of need for an extension of the
2009 deadline for implementing emission controls. See section VII.A. in
the CAIR NFR preamble (70 FR 25256-25263). The Agency proposed that, in
order for early emission reductions to qualify for allowances from the
CAIR FIP CSP, sources would have to demonstrate that--for each year for
which they apply for CAIR FIP CSP allowances--they had an annual
NOX emission rate below 0.25 lb/mmBtu. In addition, sources
who also participate in a title IV NOX averaging plan would
have to demonstrate that the plan-wide weighted-average annual
NOX emission rate for each such year was equal to or lower
than the plan-wide rate for the preceding year. Sources meeting this
criterion could request early reduction credit equal to the difference
between 0.25 lb/mmBtu and the unit's actual emission rate multiplied by
the unit's actual heat input for the applicable control period.
Comments on Federal CSP. Several commenters supported the use of a
CAIR FIP CSP to encourage early emission reductions and provide sources
access to some additional allowances for demonstrated reliability
needs. Some commenters supported including a CAIR FIP CSP but were
concerned about the use of additional criteria (i.e., a 0.25 lb/mmBtu
threshold and the limitation on emissions under a title IV
NOX averaging plan). Other commenters believed that
providing additional allowances would delay emission reductions and
that EPA's analysis already demonstrated that the mandated emission
reduction levels and timelines are feasible.
EPA disagrees with commenters that believe the CAIR FIP CSP should
not include the criterion that units can only request early reduction
credit equal to the difference between 0.25 lb/mmBtu and the unit's
actual emission rate multiplied by the unit's actual heat input for the
applicable control period. EPA believes that the 0.25 lb/mmBtu
threshold (coupled with the limitation on emissions under a title IV
NOX averaging plan) provides a reasonable proxy for the more
general standard that emission reductions exceed what is required under
State or Federal law.\32\ Applying these criteria will provide
reasonable assurance that only early reductions (i.e., reductions
exceeding existing requirements) will be awarded CAIR FIP CSP
allowances. Further, because these criteria are clearer and more
precise than the general standard that reductions exceed existing
[[Page 25362]]
requirements, the criteria will give owners and operators greater
certainty when making reasonable projections about how many allowances
they may receive for their early reductions and will, thereby,
encourage early emission reductions.
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\32\ The 0.25 lbs/mmBtu criterion is based upon EPA analysis
described in the CAIR FIP CSP Technical Support Document and is
similar to the criterion used for the CSP established under the
NOX SIP Call section 126 action. (65 FR 2674, January 18,
2000).
---------------------------------------------------------------------------
Additionally, EPA disagrees with commenters that believe the CAIR
FIP CSP should not include the distribution criterion that units in a
title IV NOX averaging plan would have to demonstrate that
the current plan-wide average NOX emission rate be less than
the plan-wide average for the previous year. The averaging plan
criterion acknowledges the unique circumstances for units that are in
title IV NOX averaging plans, where emission reductions by
one unit in the plan may be offset by emission increases by another
unit in the plan, thereby, making it difficult to determine whether
early reductions are taking place. As discussed above, EPA believes
that this criterion, coupled with the 0.25 lb/mmBtu criterion, provides
a reasonable proxy for the general standard that reductions exceed
existing requirements and that the criteria provide greater certainty
about the rewarding of CAIR FIP CSP allowances. EPA believes it is
appropriate to base the averaging plan criterion on a single, prior
year's plan-wide average emission rate because the averaging of
emissions across a plan tends to mitigate year-to-year fluctuations.
EPA disagrees with commenters that believe a CAIR FIP CSP will
significantly delay emission reductions. For the CAIR NFR, EPA
conducted IPM modeling of the CAIR trading programs to evaluate the
effect of the 200,000 CAIR annual CSP NOX allowances. The
modeling shows that these CSP allowances do not have a significant
impact on regionwide NOX emissions.
CAIR FIP CSP Finalized in Today's Action. Today's rule finalizes
the CAIR FIP CSP mechanism proposed in the FIP NPR. EPA believes that
including a CAIR FIP CSP will encourage early emission reductions and
alleviate concerns of some sources that they have unique issues
concerning compliance with the 2009 implementation deadline of the CAIR
FIP trading program. (See 70 FR 25286 for additional discussion of the
CAIR CSP.) EPA also believes that the CSP will not significantly impact
the achievement of emission reduction goals.
The CAIR FIP CSP includes specific criteria for distributing
allowances based upon early emission reductions that do not appear in
the CAIR SIP trading programs. (Note that, as discussed in section IV.E
of today's action, States choosing the abbreviated SIP revision option
may choose to use the CAIR FIP CSP or the CAIR CSP mechanism or may
choose another mechanism consistent with Sec. 51.123(e)(4).) EPA
believes that the criteria will reasonably ensure that the award of CSP
allowances will be aimed at early reductions and give owners and
operators greater certainty to make reasonable projections about how
many allowances they may receive for their early reductions.
3. NOX Ozone Season Program
The final CAIR FIP NOX ozone season cap-and-trade
program allows the banking of NOX SIP Call allowances of
vintage years 2008 and earlier and their use in the CAIR FIP
NOX ozone season program to meet the requirement to hold
allowances covering their emissions. This provides incentive for
sources in the NOX SIP Call to reduce their ozone season
NOX emissions before 2009 and bank additional allowances
into the CAIR FIP NOX ozone season program. This early-
reduction incentive mechanism is in the CAIR NOX ozone
season model rule and is adopted as part of the CAIR FIP NOX
ozone season cap-and-trade programs. EPA did not receive any comments
specifically addressing the early-reduction incentive mechanism in the
CAIR FIP NOX ozone season program. However, several
commenters generally supported mechanisms to provide incentives for
early emission reductions. The Agency is finalizing this mechanism.
J. Monitoring and Reporting Requirements
Under the CAIR SIP model cap-and-trade rules, sources are required
to monitor and report NOX and SO2 mass emissions
in accordance with 40 CFR part 75. (See Section VIII.H. of the CAIR NFR
preamble, 70 FR 25288.) Many CAIR sources are measuring and reporting
SO2 mass emissions and NOX emission rate year
round under the Acid Rain Program. Many additional sources are also
reporting NOX mass emissions at least during the ozone
season and often year round under the NOX SIP Call. The CAIR
SIP model rules require continuous monitoring of NOX mass
emissions by all existing, affected units by January 1, 2008 using part
75 certified monitoring systems for the NOX annual program
and May 1, 2008 for the NOX ozone season program.
SO2 emissions must be monitored by those same units
beginning January 1, 2009.
Today's rulemaking requires part 75 monitoring, reporting, and
recordkeeping for all units subject to the CAIR FIP cap-and-trade
programs. This is consistent with the CAIR model cap-and-trade
programs. For additional discussion on monitoring and reporting
requirements, see Section VIII.H. in the CAIR NFR preamble (70 FR
25288).
K. Interactions With Other CAA Programs
In the CAIR NFR preamble, section IX discusses interactions between
the NOX SIP Call and CAIR. Section IX also discusses
interactions between the title IV Acid Rain Program and CAIR. Today's
final rule covers the same States as the CAIR and adopts as FIP trading
programs the CAIR SIP model trading rules, thus the interactions would
be as described in CAIR (70 FR 25289-25299).
VII. What Are the Revisions of the CAIR SIP Rule, Including the CAIR
Model Cap-and-Trade Rules?
The EPA is adopting several revisions of the CAIR SIP rule. One
such revision is part of EPA's final action on reconsideration
concerning the applicability provisions as they relate to solid waste
incineration units. In particular, for the reasons stated in the
preamble of the August 24, 2005 proposed rule, EPA is finalizing the
EGU definition in Sec. Sec. 51.123(cc) and 51.124(q). The EGU
definition, as adopted, excludes certain solid waste incineration units
from being EGUs; limits EGUs to units that, as of November 15, 1990 or
any time later, serve a generator with a greater than 25 MWe nameplate
capacity producing electricity for sale; and clarifies language
concerning cogeneration units. The final EGU definition is the same as
the definition proposed on reconsideration except for a few minor
changes, e.g., to clarify the circumstances under which a unit that is
not an EGU, but that begins to combust fossil fuel or to serve a
generator with a 25 MWe nameplate, becomes an EGU. (For the reasons in
the preamble of the August 24, 2005 proposed rule, the language in the
final EGU definition is also reflected in final applicability
provisions of the CAIR model trading rules and the CAIR FIP trading
programs.) EPA is also finalizing, as discussed in detail above,
provisions allowing States to submit abbreviated SIP revisions.
EPA is also adopting a number of revisions of the CAIR SIP model
cap-and-trade rules. The revisions are generally necessary to integrate
each of the CAIR SIP model cap-and-trade programs with its
corresponding CAIR FIP cap-and-trade program, and some of the final
revisions reflect needed technical and clarifying changes. The
revisions are consistent with the
[[Page 25363]]
analogous provisions of the final CAIR FIP trading programs. One such
revision is part of EPA's final action on reconsideration concerning
the applicability provisions as they relate to solid waste incineration
units.
In particular, several definitions of terms are revised, and a few
new definitions are added. For example, the definitions of ``CAIR
designated representative'' and ``alternate CAIR designated
representative'' are modified to require that the respective
individuals designated for these positions be the same individuals as
designated, for a given source, as the designated representative and
alternate designated representative under any applicable trading
program under the Clean Air Mercury Rule (CAMR). (CAMR was promulgated
in May 2005 to achieve reduction of national mercury (Hg) emissions.
See 70 FR 28606, May 18, 2005.) This will greatly simplify the
administration of the allowance tracking systems for the trading
programs, including the Hg trading programs, for which EPA intends to
propose analogous changes. (In order to implement this change, a new
definition for ``Hg Budget Trading Program'' is added to the CAIR SIP
model trading rules.)
As a further example, a new definition is added (``solid waste
incineration unit''), and certain definitions are modified (``commence
commercial operation'' and ``commence operation''), to reflect final
changes in the applicability provisions for the CAIR model trading rule
and to clarify and streamline the language in the definitions. In
particular, the modified definitions are consistent with the above-
noted revisions of the applicability provisions that: exempt certain
solid waste incineration units from the CAIR trading programs; limit
applicability to units that, as of November 15, 1990 or any time later,
serve a generator with a greater than 25 MWe nameplate capacity
producing electricity for sale; and clarify the language concerning
cogeneration units. In addition, the ``commence commercial operation''
and ``commence operation'' definitions are simplified by removing
unnecessary language, such as the language referring to CAIR opt-in
units, which is unnecessary because these terms are not used in the
CAIR opt-in rule provisions. Also, the simplified definition of
``commence operation'' means that all units will use the same
``commence operation'' definition in determining, for purposes of
allocations under Sec. 96.142 and 96.342, their baseline periods for
calculating adjusted or converted heat input. (The provisions for opt-
in units that subsequently become subject to the allocation provisions
of Sec. 96.142 and 96.342 and lose their opt-in status are also
revised to reflect this approach.)
Further, a definition of ``replacement,'' a term used in the
``commence commercial operation'' and ``commence operation''
definitions, is added in order to clarify the application of the latter
two terms to cases when a unit is replaced by another unit, rather than
simply being modified. The revised applicability provisions and related
definitions in the CAIR SIP model trading rules are consistent with the
applicability provisions and related definitions in the final CAIR FIP
trading rules and with the above-discussed EGU definition in Sec. Sec.
51.123(cc) and 51.124(q).
In addition, the definitions of ``CAIR NOX allowance,''
``CAIR NOX Annual Trading Program,'' ``CAIR SO2
allowance,'' ``CAIR SO2 Annual Trading Program,'' ``CAIR
NOX Ozone Season allowance,'' and ``CAIR NOX
Ozone Season Trading Program'' are modified to provide for integrated
operation of each CAIR SIP trading program administered by EPA for any
State with its corresponding CAIR FIP trading program for any State.
Under these revised definitions, CAIR NOX, SO2,
or NOX Ozone Season allowances issued under either type of
program for any State would be a ``CAIR NOX allowance,''
``CAIR SO2 allowance,'' or ``CAIR NOX Ozone
Season allowance,'' respectively, usable by owners and operators for
meeting the allowance-holding requirement under the corresponding CAIR
SIP model trading program or CAIR FIP trading program for any State.
EPA is also simplifying and clarifying other definitions. For
example, the term ``allocate'' is simplified to cover allocation of
allowances for either the CAIR SIP or FIP trading programs. The
definition of ``maximum design heat input'' is simplified, and the
definition of ``nameplate capacity'' is clarified.
Further, the retired unit exemption provisions are revised. The
revisions clarify that the provisions concerning CAIR designated
representatives and the appeal procedures generally applicable to final
actions of the Administrator are applicable to retired units and to
final actions of the Administrator with regard to retired units.
In addition, the provisions listing the content of a certificate of
representation are revised to clarify that the identification of each
unit covered by the certificate of representation includes
identification and nameplate capacity of each generator served by the
unit. EPA believes that the current rule language requiring
``identification'' of each unit subject to the trading program is
already broad enough to encompass such information concerning each
generator served by the unit, particularly since only a unit serving a
generator with a nameplate capacity greater than 25 MWe can be subject
to the CAIR trading programs. However, EPA is revising the language to
make it clear that generator information is required in the certificate
of representation.
EPA is also making technical revisions to the provisions concerning
the reflection in certificates of representation of the owners and
operators of the source and units involved. The changes make it clear
that all owners and operators must be listed and that those that should
be, but are not, listed are still bound by the certificate of
representation and the CAIR designated representative.
Further, new provisions concerning designated representatives and
authorized account representatives are added to clarify that such
individuals may use agents in order to make electronic submissions. The
existing CAIR SIP model trading rules provide for certain submissions
(i.e., certificates of representation, applications for general
account, allowance transfers, and quarterly emissions reports) required
to be ``in a format prescribed'' or ``in a format specified'' by the
Administrator. (The terms ``prescribed'' and ``specified'' have the
identical meaning in these contexts.) These submissions may be made,
and in the case of quarterly emissions reports must be made,
electronically. Although the formats for the CAIR trading programs have
not yet been developed, other EPA-administered trading programs (i.e.,
the Acid Rain Program and the NOX Budget Trading Program)
have analogous language concerning submission formats and have
existing, prescribed formats for submissions. The electronic formats
prescribed by the Administrator for the Acid Rain Program and the
NOX Budget Trading Program allow the designated
representative or authorized account representative, as appropriate, to
designate other individuals (``agents'') who may make the electronic
submissions for the designated representative or authorized account
representative, who is fully bound by the agent's actions. EPA
maintains that the references in the Acid Rain Program and
NOX Budget Trading Program regulations to ``prescribed'' (or
``specified'') formats, coupled with the existing electronic formats,
provide the legal authority necessary for designated representatives
and authorized account
[[Page 25364]]
representatives to use agents to make electronic submissions in the
applicable trading programs. EPA plans to adopt electronic formats for
the CAIR trading programs that, similarly, allow for the use of agents.
EPA believes that the existing references in the CAIR SIP model trading
rules to ``format[s] prescribed '' or ``specified'' by the
Administrator, when coupled with the appropriate electronic formats,
will similarly provide the legal authority necessary for the use of
agents. However, in order to remove any uncertainty about such legal
authority, EPA is adding provisions to the CAIR SIP model trading rules
(and to the CAIR FIP trading rules) that explicitly authorize the use
of agents for electronic submissions.
In addition, in the permitting provisions, EPA is revising the
deadline for submission of CAIR permit applications to run from the
later of January 1, 2009 (for the NOX programs) or 2010 (for
the SO2 program) or the date on which the unit commences commercial
operation, rather than the date on which the unit simply commences
operation. A unit's date of commencement of commercial operation is not
likely to range from more than a few days to a few months later than
the unit's date of commencement of operation since owners and operators
of EGUs generally prefer to minimize using fuel without producing
electricity. Moreover, running the permit application deadline from the
commencement of commercial operation avoids the need for complex
provisions in the definition of ``commence operation'' to address,
solely for permitting purposes, units that are not subject to the CAIR
trading programs when they first combust fuel and that subsequently
become CAIR units. (The simplified definition of ``commence operation''
reflects this revision.)
Further, EPA is adopting certain technical corrections in the
NOX allowance allocation provisions. In particular, the
current provisions concerning timing of submission of unit allocations
by the permitting authority to the Administrator provide that if the
unit allocations are not submitted on time, the Administrator will
assume that the allocations are the same as in the prior year. If the
year for which allocations are submitted late is 2015 (the beginning of
phase II of the CAIR trading programs, the Administrator will assume
that the allocations are 83% of the 2014 allocations. EPA is removing
these provisions both for existing and new units because they seem
unlikely to be used, are unduly complicated, and may result in 2015 in
total allocations that do not equal the respective State trading
budget. Moreover, there are no comparable provisions in the CAIR FIP
trading rules.
EPA is also revising the current provisions for new unit
allocations that provide that a new unit is eligible for allocations
from the new unit set-aside until that unit has operated long enough to
develop a baseline heat input using the 3 highest figures for converted
control period heat input out of such figures for the first 5 years of
operation. At that point, the unit is supposed to be allocated
allowances from the pool of allowances allocated to all units that have
a baseline heat input. However, allowances for units with baselines are
allocated a number of years in advance of the first year for which such
allowances may be used to meet the allowance-holding requirement.
Consequently, it is possible for a new unit to have a baseline as of a
given year but find that no more allowances are available for that year
for units with baselines because the allowances for that year were
allocated before the time when the new unit's baseline was developed. A
new unit could find that, for some years, it was both ineligible for
the new unit set-aside and unable to obtain an allocation from the pool
for units with baselines. EPA intended that new units move seamlessly
from new-unit-set-aside eligibility to units-with-baselines allocations
and not to fall in between the two types of allocation procedures. EPA
is revising the allocation provisions to clarify that a new unit
continues to be eligible for the new unit set-aside so long as the unit
is not allocated allowances from the pool for units with baselines
allocations either because the new unit does not yet have a baseline or
because all the allowances for units with baselines have already been
allocated for the year involved.
EPA also is adopting technical changes that make it clear that a
separate request for new-unit-set-aside allowances must be submitted
for each control period for which they are sought and must be submitted
by May 1 (for the NOX annual program) or February 1 (for the
NOX ozone season program) of that control period. This
approach will reasonably put the burden on owners and operators to
inform the State permitting authority each year. This will ensure that
the State permitting authority can keep track, for each control period
in the future, of which units are seeking new-unit-set-aside allowances
for that control period. These submission deadlines will give the State
permitting authorities more time to process (which may include, when
appropriate, opportunity for public comment) the requests in time to
submit the allocations to the Administrator for recordation by December
1 (for the NOX annual program) or September 1 (for the
NOX ozone season program). Similarly, EPA is revising the
deadline for submission of requests for allowances from the compliance
supplement pool to be May 1, 2009 (rather than July 1, 2009). Just as
emissions data for 2008 will be available in time for new-unit-set-
aside requests due on May 1, emissions data for 2008 (and 2007) will be
available in time for compliance-supplement-pool requests due on May 1.
The July 1, 2009 deadline did not provide sufficient time for State
permitting authorities to process the requests.
In addition, EPA is adopting technical changes to the provisions
for recordation of allowance allocations, for the reasons discussed
below and elsewhere in this preamble. For example, the current
provisions require the Administrator to record the initial allocations
for 2010-2014 by December 1, 2006. Because State plans are not due
until September 11, 2006, EPA cannot review and approve all State plans
in time to record allowance allocations in those plans by December 1,
2006, which date is changed to September 30, 2007. Further, the current
provisions also require the recordation of allocations for subsequent
years to occur only after completion of the end-of-year compliance
determination process for a previous year. Because of the need to
finalize emissions data for a year before the compliance determination
process for that year can be completed, the current provisions may
delay recordation for a number of months. However, as a matter of
logic, there is no necessary connection between one year's compliance
determination and the future year's allocation recordation.
Consequently, EPA is removing the connection made in the current
provisions and is setting an independent deadline (December 1) for
allocation recordation, which will result in recordation several months
earlier than under the current provisions.
Further, EPA is adopting technical changes to the provisions
referring to when an allowance transfer by the owner of an allowance to
another allowance tracking system account is ``correctly submitted.''
The changes clarify that a ``correctly submitted'' allowance transfer
is one that references allowances that both: Were in the owner's
allowance tracking system account when the allowance transfer form was
submitted to the
[[Page 25365]]
Administrator; and continue to be in such account when the allowance
transfer form is processed by the Administrator.
In addition, EPA is revising the provisions for deducting
allowances to determine compliance with the allowance-holding
requirement under the trading programs. The revisions do not change the
requirements that an allowance usable for compliance: be allocated for
the year, or a year before the year, for which compliance is being
determined; and be in or covered by a proper request for transfer into
the source's compliance account by the allowance transfer deadline.
However, the statement indicating that the allowance must also not be
necessary to account for excess emissions for a prior year is removed
because it is confusing and inconsistent with the compliance procedures
that EPA has been using in its ongoing cap-and-trade programs, i.e.,
the Acid Rain Program and the NOX Budget Trading Program.
Further, as explained in the preamble of the August 24, 2005
proposed rule, EPA is adopting revisions clarifying the application of
excess emissions penalties for a source that is subject to, and has
excess emissions under, both the Acid Rain Program and the CAIR
SO2 model trading rule. Under these revisions, a given ton
of SO2 excess emissions at a source, the owners and
operators of the source will be liable, if that ton is an excess
emission under both the Acid Rain Program and the CAIR trading program,
for the offset (the deduction of one allowance) and the dollar penalty
($2,000 inflation adjusted) under the Acid Rain Program and liable, if
that ton is only an excess emission under the CAIR trading program, for
the 3-for-1 allowance deduction under the CAIR trading program.
In addition, EPA is revising certain provisions concerning the use
of substitute data when the owner or operator of a unit adds a new
stack or flue and fails to meet the deadline for monitoring
certification. EPA proposed, but is not finalizing, procedures that
would allow for substitute data other than data reflecting maximum
potential emissions. Because EPA believes that the proposed provisions
would in fact still result in the use of data reflecting maximum
potential emissions, EPA is not adopting the proposed provisions.
Further, EPA is removing a provision that separately requires units
to monitor heat input. The provision is unnecessary because heat input
monitoring is already explicitly required in the monitoring provisions
in Sec. 96.170, 96.270, and 96.370.
In addition, EPA is revising the requirements for CAIR opt-in
permits for owners and operators planning to repower an opt-in unit and
seeking special allowance allocations for such unit. The revisions
require that the owners and operators state, in the permit application,
that they intend to repower the opt-in unit before January 1, 2015. EPA
believes that this is a reasonable requirement to prevent frivolous
requests for the special allocations for opt-in units to be repowered.
The permit application, like any submission for owners and operators,
must of course include a certification as to the truth, accuracy, and
completeness of the submission.
A few changes are adopted for some other provisions (concerning,
e.g., the submission deadlines for quarterly emissions reports for CAIR
opt-in units and units applying to be CAIR opt-in units and inclusion
of the CAIR opt-in permit in the CAIR permit and the title V permit for
the source that includes the CAIR opt-in unit) of the CAIR SIP model
trading rules. These other changes are similarly technical or
clarifying in nature. All of these changes are consistent with the
analogous provisions in the final CAIR FIP trading rules.
VIII. What Are the Revisions of Acid Rain Program Regulations?
A few changes are adopted for the Acid Rain Program regulations. As
explained in the preamble of the August 24, 2005 preamble, EPA is
adopting revisions aimed at facilitating interaction among the CAIR FIP
trading programs, any EPA-administered CAIR SIP trading programs, and
the Acid Rain SO2 trading program and revisions related to
the change, finalized in the CAIR rulemaking, from unit-level to
source-level compliance with the Acid Rain SO2 trading
program.
In addition, EPA is revising the provisions listing the content of
a certificate of representation to clarify that the identification of
each unit covered by the certificate of representation includes
identification and nameplate capacity of each generator served by the
unit. EPA believes that the current rule language requiring
``identification'' of each unit subject to the trading program is
already broad enough to encompass such information concerning each
generator served by the unit, particularly since only a unit serving a
generator with a nameplate capacity greater than 25 MWe can be subject
to the Acid Rain Program. However, EPA is adopting revised language to
make it clear that generator information is required in the certificate
of representation.
EPA is also making technical revisions to the provisions concerning
the reflection in certificates of representation of the owners and
operators of the source and units involved. The changes make these
provisions consistent with those in the CAIR trading programs. The
changes make it clear that all owners and operators must be listed and
that those that should be, but are not, listed are still bound by the
certificate of representation and the CAIR designated representative.
Further, EPA is adding a new Sec. 72.26 and a new Sec. 73.33(g)
that are analogous to provisions adopted in the CAIR SIP model trading
rules and the CAIR FIP trading rules and concern the use of agents by a
designated representative and authorized account representative. As
discussed above in Section VII of this preamble, EPA maintains that the
existing Acid Rain Program regulations already authorize a designated
representative or authorized account representative to use agents to
make certain electronic submissions. However, in order to remove any
uncertainty about such legal authority, EPA is adding provisions to the
Acid Rain Program regulations that explicitly authorize such use of
agents.
In addition, EPA is revising the appeal provisions of part 78 to
apply to the appeals procedures to final actions of the Administrator
under the CAIR FIP trading rule, just as these provisions already apply
to final Administrator actions under the CAIR SIP model trading rules.
Part 78 is revised to refer specifically, where appropriate, to the
CAIR FIP trading rules in a similar way to how part 78 currently refers
specifically, where appropriate, to the CAIR SIP model trading rules.
IX. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether a regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
1. Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the
[[Page 25366]]
environment, public health or safety, or State, local, or Tribal
governments or communities;
2. Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
3. Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
4. Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Today's action both provides a response to the Section 126 Petition
filed by North Carolina and promulgates FIPs to implement the
requirements of the recently published CAIR (May 2005) in all affected
States. It also makes minor changes to the CAIR and the Acid Rain
Program. The FIPs require the same set of air pollution emissions
reductions required by the CAIR. For this reason, EPA is relying on the
economic analysis conducted for CAIR entitled ``Regulatory Impact
Analysis of the Final Clean Air Interstate Rule'' (March 2005) to serve
as the analysis for these rulemakings.
This economic analysis shows that substantial net economic benefits
to society are likely to be achieved due to reduction in emissions
resulting from the CAIR program. The results show that the CAIR program
would be highly beneficial to society, with annual net benefits
(benefits less costs) of approximately $71.4 or $60.4 billion in 2010
and $98.5 or $83.2 billion in 2015. These alternative net benefits
estimates occur due to differing assumptions concerning the social
discount rate used to estimate the annual value of the benefits of the
rule with the lower estimates relating to a discount rate of 7 percent
and the higher estimates a discount rate of 3 percent. All amounts are
reflected in 1999 dollars. The costs and benefits presented in the CAIR
economic analysis are an accurate representation of the benefits and
costs anticipated for the FIPs. For more information, see the NFR for
the CAIR published in the Federal Register (70 FR 25162; May 12, 2005)
and the ``Regulatory Impact Analysis for the Final Clean Air Interstate
Rule'' (March 2005).
In view of its important policy implications and potential effect
on the economy of over $100 million, this action has been judged to be
an economically ``significant regulatory action'' within the meaning of
the Executive Order. As a result, today's action was submitted to OMB
for review. Changes made in response to OMB suggestions or
recommendations are documented in the public record.
B. Paperwork Reduction Act
The EPA believes that the Paperwork Reduction Act (44 U.S.C. 3501
et seq.) requirements of this rule are satisfied through the
Information Collection Request (ICR) (EPA ICR number 2152.02; OMB
control number 2060-0570) submitted to the OMB for review and approval
on May 12, 2005 as part of the CAIR (70 FR 25162-25405) and approved by
the OMB in September 2005. The ICR describes the nature of the
information collection and its estimated burden and cost associated
with that final rule. In cases where information is already collected
by a related program, the ICR takes into account only the additional
burden. [This situation arises in States that are also subject to
requirements of the Consolidated Emissions Reporting Rule (EPA ICR
number 0916.10; OMB control number 2060-0088) or for sources that are
subject to the Acid Rain Program (EPA ICR number 1633.13; OMB control
number 2060-0258) or NOX SIP Call (EPA ICR number 1857.03;
OMB number 2060-0445) requirements.]
The burden of today's rule is essentially the same as the burden
estimated for the CAIR. There is a modest transfer of burden from the
States to EPA if the Federal plan is implemented rather than the CAIR
State plan. The overall total burden is essentially unchanged. Thus,
the ICR prepared for CAIR satisfies the requirements of the Paperwork
Reduction Act for this rule.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR, after appearing in the preamble of the final
rule, are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedure Act or any other statute unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For the purposes of this rulemaking, EPA defined small entities
according to the following three criteria:
(1) A small business according to the Small Business Administration
size standards by the North American Industry Classification System
(NAICS) category of the owning entity. The range of small business size
standards for electric utilities is 4 billion kilowatt-hours of
production or less;
(2) A small government jurisdiction that is a government of a city,
county, town, district, or special district with a population of less
than 50,000; and
(3) A small organization that is any not-for-profit enterprise that
is independently owned and operated and is not dominant in its field.
Table IX-1 lists entities potentially affected by this rule with
applicable NAICS code.
Table IX-1.--Potentially Regulated Categories and Entities a
------------------------------------------------------------------------
NAICS Examples of potentially
Category code b regulated entities
------------------------------------------------------------------------
Industry.......................... 221112 Fossil fuel-fired
electric utility steam
generating units.
Federal Government................ c 221112 Fossil fuel-fired
electric utility steam
generating units owned
by the Federal
government.
[[Page 25367]]
State/Local/...................... c 221112 Fossil fuel-fired
electric utility steam
generating units owned
by municipalities.
Tribal Government................. 921150 Fossil fuel-fired
electric utility steam
generating units in
Indian Country.
------------------------------------------------------------------------
a Include NAICS categories for source categories that own and operate
electric generating units only.
b North American Industry Classification System.
c Federal, State, or local government-owned and operated establishments
are classified according to the activity in which they are engaged.
After considering the economic impacts of today's final rule on
small entities, EPA is certifying that this action will not have a
significant economic impact on a substantial number of small entities.
EPA has assessed the potential impact of today's action on small
entities. Pursuant to section 603 of the RFA, EPA prepared an initial
regulatory flexibility analysis (IRFA) for the proposed rule (70 FR
49708, 49743). Approximately 140 of the estimated 3,000 EGUs
potentially affected by today's action are owned by the 58 potentially
affected small entities identified by EPA. Of the 140, 49 units are
owned by small entities that also share ownership with large entities.
Of these units, 34 are believed to be more than 50 percent owned by a
large entity.
Beyond the 140, an additional 185 units owned by small entities in
these states could be exempted because they have a nameplate capacity
less than 25 MW. The above estimates include a number of units that are
owned jointly by small and non-small entities. In addition, these
estimates represent the maximum number of units potentially affected by
the CAIR FIP. Only units in States that fail to submit an approved SIP
would be directly regulated under the CAIR FIP. The actual number of
affected units will depend on the number of States that do not submit a
SIP or do not get their SIP submittal approved.
This analysis is based in large part on EPA's prior analysis of the
potential impact of regulations implementing the CAIR model trading
programs in the CAIR region. The analysis of the model trading programs
was based on the best information available at that time and assumed
that 75 small entities could be affected by any eventual implementation
of the trading programs. However, EPA subsequently determined that some
of these 75 entities either did not meet the definition of a small
entity, or had units that were no longer generating. EPA's final
analysis thus concluded that only 58 entities would be affected by
today's action. Because the Agency's analysis of small entity impacts
was based on the earlier estimate of affected small entities (i.e., the
impacts were analyzed based on 75 affected entities, not 58 entities),
the impact analysis overstates the maximum potential impact of today's
action on small entities.
Overall, EPA analysis suggested that about 445 MW of total small
entity capacity, or 1.0 percent of total small entity capacity in the
CAIR region, is projected to be uneconomic to maintain under
regulations implementing the CAIR trading programs relative to the Base
Case. In practice, units projected to be uneconomic to maintain may be
``mothballed'', retired, or kept in service to ensure transmission
reliability in certain parts of the grid. Our IPM modeling is unable to
distinguish between these potential outcomes.
Of the 75 initially identified as potentially impacted by
regulations implementing the model trading programs, EPA determined
that 29 might experience compliance costs in excess of one percent of
revenues in 2010 and 46 might in 2015. Potentially affected small
entities experiencing compliance costs in excess of 1 percent of
revenues have some potential for significant impact resulting from
implementation of CAIR.
Pursuant to section 609(b) of the RFA, EPA convened a Small
Business Advocacy Review Panel to obtain advice and recommendations
from representatives of small entities that would potentially be
regulated by the rule. A detailed discussion of the Panel's advice and
recommendations is found in the Panel Report (EPA-HQ-OAR-2004-0076-
0074). A summary of the Panel's recommendations is presented at 70 FR
49708, 49741.
A detailed discussion of the panel process is provided in the
proposed rule. In the proposed rule, EPA took comment on all aspects of
the proposed FIP and its impact on small entities. EPA did not receive
significant comments in this regard. In addition, in section VI.D of
the proposed rule preamble, EPA specifically took comment on one of the
panel recommendations, which was to consider providing a greater share
of NOX allowances to small entities. A number of utilities
submitted comments opposing such a provision, and one State expressed
support for such a provision. These comments are discussed in more
detail in section VI.F of this preamble.
The decision to certify that this rule will not have a significant
economic impact on a substantial number of small entities is largely a
result of two factors. First, because the rule only affects sources
with a capacity greater than 25 MW, the majority of potentially
affected small entities are exempted. The decision to include only
units greater than 25 MW in size exempts 185 small entities that would
otherwise be potentially affected by today's actions. In the final
CAIR, EPA stated its belief that it is reasonable to assume no further
control of air emissions from these smaller EGUs. Second, as EPA's
analysis of potential impacts of this rulemaking on small entities
progressed, we determined that our initial estimates were too high,
because some of the entities that EPA had projected to be affected
either did not meet the definition of a small entity, or had units that
were no longer generating. Finally, as was discussed in the NPR, the
use of cap-and-trade in general will limit impacts on small entities
relative to a less flexible command-and-control program.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995, Public Law
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, 2
U.S.C. 1532, EPA generally must prepare a written statement, including
a cost-benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures by State, local, and tribal
governments, in the aggregate, or by the private sector, of
[[Page 25368]]
$100,000,000 or more in any 1 year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires EPA to identify and consider a reasonable number of regulatory
alternatives and to adopt the least costly, most cost-effective or
least burdensome alternative that achieves the objectives of the rule.
The provisions of section 205 do not apply when they are inconsistent
with applicable law. Moreover, section 205 allows EPA to adopt an
alternative other than the least costly, most cost-effective or least
burdensome alternative if the Administrator publishes with the final
rule an explanation why that alternative was not adopted.
In addition, before EPA establishes any regulatory requirements
that may significantly or uniquely affect small governments, including
Tribal governments, it must have developed under section 203 of the
UMRA, a small government agency plan. The plan must provide for
notifying potentially affected small governments, enabling officials of
affected small governments to have meaningful and timely input in the
development of EPA regulatory proposals with significant Federal
intergovernmental mandates, and informing, educating, and advising
small governments on compliance with the regulatory requirements.
The EPA has determined that this rule contains a Federal mandate
that may result in expenditures of $100 million or more in 1 year. The
costs of compliance will be borne predominately by sources in the
private sector although a small number of sources owned by State and
local governments may also be impacted. EPA prepared a written
statement meeting the requirements of section 202 of the UMRA during
the CAIR rulemaking process. The Federal mandates in today's action
relate to its implementation of the CAIR and thus the analyses prepared
for CAIR are applicable to today's action.
In accordance with section 202(c) of UMRA, EPA prepared the
statement required by section 202 in conjunction with the Regulatory
Impact Analysis prepared for the CAIR. This document is available at
http://www.epa.gov/cair/pdfs/finaltech08.pdf and contains analyses that
meet the requirements of section 202(a) of UMRA. That is, it contains a
qualitative and quantitative assessment of the anticipated costs and
benefits of the Federal mandate; estimates of future compliance costs
and any disproportionate budgetary effects upon any particular regions
of the nation; and estimates of the effect on the national economy.
Consultation with State, local and Tribal governments potentially
affected by the CAIR emission reduction requirements was conducted
during the CAIR rulemaking process. Such consultation was conducted in
a manner consistent with the intergovernmental consultation provisions
of section 204 of the UMRA, and Executive Order 12875, ``Enhancing the
Intergovernmental Partnership.''
EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Therefore, development of a small government plan under
section 203 of the Act is not required. The requirements in this action
do not distinguish EGUs based on ownership, either for those units that
are included within the scope of the rule or for those units that are
exempted by the generating capacity cut-off. Consequently, the rule has
no requirements that uniquely affect small governments that own or
operate EGUs within the region. Further, with respect to the
significance of the rule's provisions, EPA's UMRA analysis demonstrates
that the economic impact of the rule will not significantly affect
State or municipal EGUs or non-EGUs, either in terms of total cost
incurred and the impact of the costs on revenue, or increased cost of
electricity to consumers.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
This rule does not have federalism implications. It does not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132. These effects do not occur from the
final rule itself because it is the provisions of the CAA that require
EPA, after a State has failed to submit a SIP or a complete SIP, to
make a finding to that effect and then to promulgate a FIP within 2
years of the finding. Although EPA is exercising discretion to
promulgate the FIP within the early part of the 2-year period, EPA
intends to rescind the FIP for each State that submits a SIP that EPA
approves, and, if the FIP remains, sources are not required to
implement controls until after the close of the 2-year period.
Moreover, as emphasized throughout the preamble, States are not
required to adopt the FIP provisions, or any particular portion
thereof, in order for EPA to approve their SIPs. Thus, Executive Order
13132 does not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.'' This rule does not have
``Tribal implications'' as specified in Executive Order 13175.
This rule addresses transport of pollution for precursors of ozone
and PM2.5. The CAA provides for States and Tribes to develop
plans to regulate emissions of air pollutants within their
jurisdictions. The regulations clarify the statutory obligations of
States and Tribes that develop plans to implement these rules. The
Tribal Authority Rule (TAR) gives Tribes the opportunity to develop and
implement CAA programs, but it leaves to the discretion of the Tribe
whether to develop these programs and which programs, or appropriate
elements of a program, the Tribe will adopt.
This rule does not have Tribal implications as defined by Executive
Order 13175. It does not have a substantial direct effect on one or
more Indian Tribes because no Tribe has implemented a federally-
enforceable air quality management program under the CAA at this time.
Furthermore, this rule does not affect the relationship or distribution
of power and responsibilities between the Federal Government and Indian
Tribes. The CAA and the TAR establish the relationship of the Federal
Government and Tribes in developing plans to attain the NAAQS, and this
rule does nothing to modify that relationship. Because this rule does
not have Tribal implications, Executive Order 13175 does not apply.
If one assumes a Tribe is implementing a Tribal Implementation
Plan, today' rule could have implications for that Tribe, but would
[[Page 25369]]
not impose substantial direct costs upon the Tribe, nor preempt Tribal
law. The EPA has estimated the total annual private costs for the FIP
for the CAIR region as implemented by State, local, and Tribal
governments to be approximately $2.4 billion in 2010 and $3.6 billion
in 2015 (1999$). There are currently very few emissions sources in
Indian country that could be affected by these rules and the percentage
of Tribal land that will be impacted is very small. For Tribes that
choose to regulate sources in Indian country, the costs would primarily
be attributed to inspecting regulated facilities and enforcing adopted
regulations.
EPA consulted with Tribal officials in developing the final CAIR,
which provides the basis for the FIPs in today's rule. The EPA
encouraged Tribal input at an early stage. Also, EPA held periodic
meetings with the States and the Tribes during the technical
development of CAIR. Three meetings were held with the Crow Tribe,
where the Tribe expressed concerns about potential impacts of the rule
on their coal mine operations. In addition, EPA held three calls with
Tribal environmental professionals to address concerns specific to the
Tribes. These discussions have given EPA valuable information about
Tribal concerns regarding the development of CAIR. During the CAIR
rulemaking process, the EPA provided briefings for Tribal
representatives and the newly formed National Tribal Air Association
(NTAA), and other national Tribal forums. Input from Tribal
representatives was taken into consideration in development of CAIR.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any
rule that (1) is determined to be ``economically significant'' as
defined under Executive Order 12866, and (2) concerns an environmental
health or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, Section 5-501 of the Order directs the Agency to
evaluate the environmental health or safety effects of the planned rule
on children, and explain why the planned regulation is preferable to
other potentially effective and reasonably feasible alternatives
considered by the Agency.
This rule is not subject to the Executive Order, because it does
not involve decisions on environmental health or safety risks that may
disproportionately affect children. The EPA believes that the emissions
reductions from the strategy in this rule would further improve air
quality and would further improve children's health.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
Executive Order 13211 (66 FR 28355, May 22, 2001) provides that
agencies shall prepare and submit to the Administrator of the Office of
Regulatory Affairs, OMB, a Statement of Energy Effects for certain
actions identified as ``significant energy actions.'' Section 4(b) of
Executive Order 13211 defines ``significant energy actions'' as ``any
action by an agency (normally published in the Federal Register) that
promulgates or is expected to lead to the promulgation of a final rule
or regulation, including notices of inquiry, advance notices of
proposed rulemaking, and notices of proposed rulemaking: (1)(i) That is
a significant regulatory action under Executive Order 12866 or any
successor order, and (ii) is likely to have a significant adverse
effect on the supply, distribution, or use of energy; or (2) that is
designated by the Administrator of the Office of Information and
Regulatory Affairs as a significant energy action.''
This final rule is a significant regulatory action under Executive
Order 12866 and this rule may have a significant adverse effect on the
supply, distribution, or use of energy. The energy impacts of this rule
come from its implementation of the emission reduction requirements in
the CAIR. The impacts for this rule will therefore not differ from
those for the CAIR. These impacts are detailed in the final CAIR (70 FR
25315). As discussed in the CAIR NFR, EPA's analysis shows that the EGU
emission reductions required under the trading programs are projected
to result in a 1.6 percent or less increase in natural gas prices
projected from 2010 to 2020. If base case natural gas prices are higher
than EPA has assumed in its primary analysis, the impact on natural gas
price will be even less.
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer Advancement Act
(NTTAA) of 1995 (Pub. L. 104-113; 15 U.S.C. 272 note) directs EPA to
use voluntary consensus standards in its regulatory and procurement
activities unless to do so would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, business practices) developed or adopted by one or more
voluntary consensus bodies. The NTTAA directs EPA to provide Congress,
through annual reports to OMB, with explanations when an agency does
not use available and applicable voluntary consensus standards.
Today's rule implements requirements largely identical to the
requirements in the CAIR. This rule requires all sources that
participate in the trading programs under part 97 (analogous to the
CAIR SIP trading programs under part 96) to meet the applicable
monitoring requirements of part 75. Part 75 already incorporates a
number of voluntary consensus standards. Consistent with the Agency's
Performance Based Measurement System (PBMS), part 75 sets forth
performance criteria that allow the use of alternative methods to the
ones set forth in part 75. The PBMS approach is intended to be more
flexible and cost effective for the regulated community; it is also
intended to encourage innovation in analytical technology and improved
data quality. At this time, EPA is not recommending any revisions to
part 75; however, EPA periodically revises the test procedures set
forth in part 75. When EPA revises the test procedures set forth in
part 75 in the future, EPA will address the use of any new voluntary
consensus standards that are equivalent. Currently, even if a test
procedure is not set forth in part 75, EPA is not precluding the use of
any method, whether it constitutes a voluntary consensus standard or
not, as long as it meets the performance criteria specified; however,
any alternative methods must be approved through the petition process
under Sec. 75.66 before they are used under part 75.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, requires
Federal agencies to consider the impact of programs, policies, and
activities on minority populations and low-income populations.
According to EPA guidance, U.S. Environmental Protection Agency, 1998.
Guidance for Incorporating Environmental Justice Concerns in EPAs NEPA
Compliance Analyses. Office of Federal Activities, Washington, D.C.,
April, 1998. Agencies
[[Page 25370]]
are to assess whether minority or low-income populations face risks or
a rate of exposure to hazards that are significant and that appreciably
exceed or is likely to appreciably exceed the risk or rate to the
general population or to the appropriate comparison group (EPA, 1998).
In accordance with Executive Order 12898, the Agency has considered
whether this rule may have disproportionate negative impacts on
minority or low income populations. The Agency expects this rule will
lead to reductions in air pollution and exposures generally. In
addition, EPA has conducted an air quality modeling analysis to
estimate the changes in exposure of minority and low-income populations
to ambient concentrations of PM2.5 as a result of
implementation of a cap-and-trade program similar to CAIR: the Acid
Rain Program. The analysis shows that each racial, ethnic, and income-
level group studied is projected to experience similar average
improvement in ambient concentrations of PM2.5 in the
eastern U.S. (where the vast majority of the emission reductions took
place) as a result of the Acid Rain Program in 2010. No
disproportionately high and adverse human health or environmental
effects of the Acid Rain Program were found for any minority, low-
income, or other population. For these reasons, negative impacts to
these sub-populations that appreciably exceed similar impacts to the
general population are not expected.
K. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. Therefore, EPA will submit a report containing this rule
and other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective June 27, 2006.
List of Subjects
40 CFR Parts 51 and 52
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen dioxide,
Ozone, Particulate matter, Reporting and recordkeeping requirements,
Sulfur oxides.
40 CFR Parts 72, 73, 74, and 78
Environmental protection, Acid rain, Administrative practice and
procedure, Air pollution control, Electric utilities, Intergovernmental
relations, Nitrogen oxides, Reporting and recordkeeping requirements,
Sulfur oxides.
40 CFR Parts 96 and 97
Environmental protection, Administrative practice and procedure,
Air pollution control, Intergovernmental relations, Nitrogen oxides,
Reporting and recordkeeping requirements.
Dated: March 15, 2006.
Stephen L. Johnson,
Administrator.
0
For the reasons set forth in the preamble, parts 51, 52, 72, 73, 74,
78, 96, and 97 of chapter I of title 40 of the Code of Federal
Regulations are amended as follows:
PART 51--[AMENDED]
0
1. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
0
2. Section 51.123 is amended as follows:
0
a. In paragraph (o)(2)(ii)(B), by revising the words ``for the year
after the year of'' to read ``for the 4th year after the year of'' and
by removing the word ``and'' at the end;
0
b. In paragraph (o)(2)(ii)(C), by revising the words ``allocated.'' to
read allocated; and'';
0
c. By adding a new paragraph (o)(2)(ii)(D);
0
d. By adding a new paragraph (p);
0
e. In paragraph (cc), by amending the definition of ``Electric
generating unit'' or ``EGU'' by:
0
i. In paragraph (1) of the definition, by redesignating the paragraph
as paragraph ``(1)(i)'', by revising the words ``since the start-up''
to read ``since the later of November 15, 1990 or the start-up'', and
by adding a new paragraph (1)(ii); and
0
ii. By revising paragraph (2) of the definition; and
0
f. In paragraph (cc), by adding a new definition for ``Solid waste
incineration unit''; and
0
g. By adding a new paragraph (ee).
Sec. 51.123 Findings and requirements for submission of State
implementation plan revisions relating to emissions of oxides of
nitrogen pursuant to the Clean Air Interstate Rule.
* * * * *
(o) * * *
(ii) * * *
(D) The State's methodology for allocating the compliance
supplement pool must be substantively identical to Sec. 97.143 (except
that the permitting authority makes the allocations and the
Administrator records the allocations made by the permitting authority)
or otherwise in accordance with paragraph (e)(4) of this section.
* * * * *
(p) Notwithstanding any other provision of this section, a State
may adopt, and include in a SIP revision submitted by March 31, 2007,
regulations relating to the Federal CAIR NOX Annual Trading
Program under subparts AA through HH of part 97 of this chapter as
follows:
(1) The State may adopt, as CAIR NOX allowance
allocation provisions replacing the provisions in subpart EE of part 97
of this chapter:
(i) Allocation provisions substantively identical to subpart EE of
part 96 of this chapter, under which the permitting authority makes the
allocations; or
(ii) Any methodology for allocating CAIR NOX allowances
to individual sources under which the permitting authority makes the
allocations, provided that:
(A) The State's methodology must not allow the permitting authority
to allocate CAIR NOX allowances for a year in excess of the
amount in the State's Annual EGU NOX budget for such year.
(B) The State's methodology must require that, for EGUs commencing
operation before January 1, 2001, the permitting authority will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX allowances by April 30, 2007 for 2009, 2010, and
2011 and by October 31, 2008 and October 31 of each year thereafter for
the 4th year after the year of the notification deadline.
(C) The State's methodology must require that, for EGUs commencing
operation on or after January 1, 2001, the permitting authority will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX allowances by October 31 of the year for which the
CAIR NOX allowances are allocated.
(2) The State may adopt, as compliance supplement pool provisions
replacing the provisions in ( 97.143 of this chapter:
[[Page 25371]]
(i) Provisions for allocating the State's compliance supplement
pool that are substantively identical to Sec. 97.143 of this chapter,
except that the permitting authority makes the allocations and the
Administrator records the allocations made by the permitting authority;
(ii) Provisions for allocating the State's compliance supplement
pool that are substantively identical to Sec. 96.143 of this chapter;
or
(iii) Other provisions for allocating the State's compliance
supplement pool that are in accordance with paragraph (e)(4) of this
section.
(3) The State may adopt CAIR opt-in unit provisions as follows:
(i) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX allowances for CAIR opt-in units, that are
substantively identical to subpart II of part 96 of this chapter and
the provisions of subparts AA through HH that are applicable to CAIR
opt-in units or units 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;
(ii) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX allowances for CAIR opt-in units, that are
substantively identical to subpart II of part 96 of this chapter and
the provisions of subparts AA through HH that are applicable to CAIR
opt-in units or units 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, except that the provisions exclude Sec. 96.188(b) of this
chapter and the provisions of subpart II of part 96 of this chapter
that apply only to units covered by Sec. 96.188(b) of this chapter; or
(iii) Provisions for applications for CAIR opt-in units, including
provisions for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX allowances for CAIR opt-in units, that are
substantively identical to subpart II of part 96 of this chapter and
the provisions of subparts AA through HH that are applicable to CAIR
opt-in units or units 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, except that the provisions exclude Sec. 96.188(c) of this
chapter and the provisions of subpart II of part 96 of this chapter
that apply only to units covered by Sec. 96.188(c) of this chapter.
(cc) * * *
Electric generating unit or EGU means:
(1)(i) * * *
(ii) If a stationary boiler or stationary combustion turbine that,
under paragraph (1)(i) of this section, is not an electric generating
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 an electric generating unit as provided in
paragraph (1)(i) of this section on the first date on which it both
combusts fossil fuel and serves such generator.
(2) A unit that meets the requirements set forth in paragraphs
(2)(i)(A), (2)(ii)(A), or (2)(ii)(B) of this definition paragraph shall
not be an electric generating unit:
(i)(A) Any unit that is an electric generating unit under paragraph
(1)(i) or (ii) of this definition:
(1) 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
(2) 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.
(B) 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 (2)(i)(A) of this section for at
least one calendar year, but subsequently no longer meets all such
requirements, the unit shall become an electric generating 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 (2)(i)(A)(2) of this
section.
(ii)(A) Any unit that is an electric generating unit under
paragraph (1)(i) or (ii) of this definition commencing operation before
January 1, 1985:
(1) Qualifying as a solid waste incineration unit; and
(2) 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).
(B) Any unit that is an electric generating unit under paragraph
(1)(i) or (ii) of this definition commencing operation on or after
January 1, 1985:
(1) Qualifying as a solid waste incineration unit; and
(2) 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).
(C) If a unit qualifies as a solid waste incineration unit and
meets the requirements of paragraph (2)(ii)(A) or (B) of this section
for at least 3 consecutive calendar years, but subsequently no longer
meets all such requirements, the unit shall become an electric
generating 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.
* * * * *
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.
* * * * *
(ee) Notwithstanding any other provision of this section, a State
may adopt, and include in a SIP revision submitted by March 31, 2007,
regulations relating to the Federal CAIR NOX Ozone Season
Trading Program under subparts AAAA through HHHH of part 97 of this
chapter as follows:
(1) The State adopt, as applicability provisions replacing the
provisions in Sec. 97.304 of this chapter, provisions for
applicability that are substantively identical to the provisions in
Sec. 96.304 of this chapter expanded to include all non-EGUs subject
to the State's emissions trading program approved under Sec.
51.121(p).
(2) The State may adopt, as CAIR NOX Ozone Season
allowance allocation provisions replacing the provisions in subpart
EEEE of part 97 of this chapter:
(i) Allocation provisions substantively identical to subpart EEEE
of part 96 of this chapter, under which the permitting authority makes
the allocations; or
(ii) Any methodology for allocating CAIR NOX Ozone
Season allowances to
[[Page 25372]]
individual sources under which the permitting authority makes the
allocations, provided that:
(A) The State may provide for issuance of an amount of CAIR Ozone
Season NOX allowances for an ozone season, in addition to
the amount in the State's Ozone Season EGU NOX Budget for
such ozone season, not exceeding the portion of the State's trading
program budget, under the State's emissions trading program approved
under Sec. 51.121(p), attributed to the non-EGUs that the
applicability provisions in Sec. 96.304 of this chapter are expanded
to include under paragraph (ee)(1) of this section.
(B) The State's methodology must not allow the State to allocate
CAIR Ozone Season NOX allowances for an ozone season in
excess of the amount in the State's Ozone Season EGU NOX
Budget for such ozone season plus any additional amount of CAIR Ozone
Season NOX allowances issued under paragraph (ee)(2)(ii)(A)
of this section for such ozone season.
(C) The State's methodology must require that, for EGUs commencing
operation before January 1, 2001, the permitting authority will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX Ozone Season allowances by April 30, 2007 for 2009,
2010, and 2011 and by October 31, 2008 and October 31 of each year
thereafter for the 4th year after the year of the notification
deadline.
(D) The State's methodology must require that, for EGUs commencing
operation on or after January 1, 2001, the permitting authority will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX Ozone Season allowances by July 31 of the year for
which the CAIR NOX Ozone Season allowances are allocated.
(3) The State may adopt CAIR opt-in unit provisions as follows:
(i) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX Ozone Season allowances for CAIR opt-in units,
that are substantively identical to subpart IIII of part 96 of this
chapter and the provisions of subparts AAAA through HHHH that are
applicable to CAIR opt-in units or units 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;
(ii) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX Ozone Season allowances for CAIR opt-in units,
that are substantively identical to subpart IIII of part 96 of this
chapter and the provisions of subparts AAAA through HHHH that are
applicable to CAIR opt-in units or units 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, except that the provisions exclude Sec.
96.388(b) of this chapter and the provisions of subpart IIII of part 96
of this chapter that apply only to units covered by Sec. 96.388(b) of
this chapter; or
(iii) Provisions for applications for CAIR opt-in units, including
provisions for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR NOX allowances for CAIR opt-in units, that are
substantively identical to subpart IIII of part 96 of this chapter and
the provisions of subparts AAAA through HHHH that are applicable to
CAIR opt-in units or units 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, except that the provisions exclude Sec. 96.388(c) of
this chapter and the provisions of subpart IIII of part 96 of this
chapter that apply only to units covered by Sec. 96.388(c) of this
chapter.
0
3. Section 51.124 is amended as follows:
0
a. In paragraph (q), by amending the definition of ``Electric
generating unit'' or ``EGU'' by:
0
i. In paragraph (1) of the definition, redesignating the paragraph as
paragraph ``(1)(i)'', revising the words ``since the start-up'' to read
``since the later of November 15, 1990 or the start-up'', and adding a
new paragraph (1)(ii); and
0
ii. Revising paragraph (2) of the definition; and
0
b. In paragraph (q), add a new definition for ``Solid waste
incineration unit''; and
0
c. Add a new paragraph (r).
Sec. 51.124 Findings and requirements for submission of State
implementation plan revisions relating to emissions of sulfur dioxide
pursuant to the Clean Air Interstate Rule.
* * * * *
(q) * * *
Electric generating unit or EGU means:
(1)(i) * * *
(ii) If a stationary boiler or stationary combustion turbine that,
under paragraph (1)(i) of this section, is not an electric generating
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 an electric generating unit as provided in
paragraph (1)(i) of this section on the first date on which it both
combusts fossil fuel and serves such generator.
(2) A unit that meets the requirements set forth in paragraphs
(2)(i)(A), (2)(ii)(A), or (2)(ii)(B) of this definition paragraph shall
not be an electric generating unit:
(i)(A) Any unit that is an electric generating unit under paragraph
(1)(i) or (ii) of this definition:
(1) 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
(2) 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.
(B) 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 (2)(i)(A) of this section for at
least one calendar year, but subsequently no longer meets all such
requirements, the unit shall become an electric generating 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 (2)(i)(A)(2) of this
section.
(ii)(A) Any unit that is an electric generating unit under
paragraph (1)(i) or (ii) of this definition commencing operation before
January 1, 1985:
(1) Qualifying as a solid waste incineration unit; and
(2) 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).
(B) Any unit that is an electric generating unit under paragraph
(1)(i) or (ii) of this definition commencing operation on or after
January 1, 1985:
(1) Qualifying as a solid waste incineration unit; and
(2) 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)
[[Page 25373]]
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).
(C) If a unit qualifies as a solid waste incineration unit and
meets the requirements of paragraph (2)(ii)(A) or (B) of this section
for at least 3 consecutive calendar years, but subsequently no longer
meets all such requirements, the unit shall become an electric
generating 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.
* * * * *
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.
* * * * *
(r) Notwithstanding any other provision of this section, a State
may adopt, and include in a SIP revision submitted by March 31, 2007,
regulations relating to the Federal CAIR SO2 Trading Program
under subparts AAA through HHH of part 97 of this chapter as follows.
The State may adopt the following CAIR opt-in unit provisions:
(1) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR SO2 allowances for CAIR opt-in units, that are
substantively identical to subpart III of part 96 of this chapter and
the provisions of subparts AAA through HHH that are applicable to CAIR
opt-in units or units 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;
(2) Provisions for CAIR opt-in units, including provisions for
applications for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR SO2 allowances for CAIR opt-in units, that are
substantively identical to subpart III of part 96 of this chapter and
the provisions of subparts AAA through HHH that are applicable to CAIR
opt-in units or units 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, except that the provisions exclude Sec. 96.288(b) of this
chapter and the provisions of subpart III of part 96 of this chapter
that apply only to units covered by Sec. 96.288(b) of this chapter; or
(3) Provisions for applications for CAIR opt-in units, including
provisions for CAIR opt-in permits, approval of CAIR opt-in permits,
treatment of units as CAIR opt-in units, and allocation and recordation
of CAIR SO2 allowances for CAIR opt-in units, that are
substantively identical to subpart III of part 96 of this chapter and
the provisions of subparts AAA through HHH that are applicable to CAIR
opt-in units or units 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, except that the provisions exclude Sec. 96.288(c) of this
chapter and the provisions of subpart III of part 96 of this chapter
that apply only to units covered by Sec. 96.288(c) of this chapter.
PART 52--[AMENDED]
0
1. The authority citation for part 52 continues to read as follows:
Authority: 42 U.S.C. 7401 et seq.
Subpart A--General Provisions
0
2. Subpart A is amended by adding Sec. Sec. 52.35 and 52.36 to read as
follows:
Sec. 52.35 What are the requirements of the Federal Implementation
Plans (FIPs) for the Clean Air Interstate Rule relating to emissions of
nitrogen oxides?
The Federal CAIR NOX Annual Trading Program provisions
of part 97 of this chapter constitute the Clean Air Interstate Rule
Federal Implementation Plan provisions that relate to annual emissions
of nitrogen oxides (NOX). These provisions apply to sources
in each State that is described in Sec. 51.123(c)(1) and (2) of this
chapter, Delaware, and New Jersey, each of which States is subject to a
finding by the Administrator that the State failed to submit a State
Implementation Plan (SIP) to satisfy the requirements of section
110(a)(2)(D)(I) of the Clean Air Act for the PM2.5 NAAQS.
The Federal CAIR NOX Ozone Season Trading Program provisions
of part 97 of this chapter constitute the Clean Air Interstate Rule
Federal Implementation Plan provisions for emissions of nitrogen oxides
(NOX) during the ozone season, as defined in Sec. 97.302 of
this chapter. These provisions apply to sources in each State that is
described in Sec. 51.123(c)(1) and (3) of this chapter, each of which
States is subject to a finding by the Administrator that the State
failed to submit a State Implementation Plan (SIP) to satisfy the
requirements of section 110(a)(2)(D)(I) of the Clean Air Act for the 8-
hour ozone NAAQS. These provisions do not invalidate or otherwise
affect the obligations of States, emissions sources, or other
responsible entities with respect to all portions of plans approved or
promulgated under this part, nor the obligations of States under the
requirements of Sec. 51.123 and 51.125 of this chapter.
Sec. 52.36 What are the requirements of the Clean Air Interstate Rule
Federal Implementation Plans relating to emissions of sulfur dioxide?
The Federal CAIR SO2 Trading Program provisions of part
97 of this chapter constitute the Clean Air Interstate Rule Federal
Implementation Plan provisions for emissions of sulfur dioxide
(SO2). These provisions apply to sources in each State that
is described in Sec. 51.124(c) of this chapter, Delaware, and New
Jersey, each of which States is subject to an EPA finding that the
State failed to submit a State Implementation Plan (SIP) to satisfy the
requirements of section 110(a)(2)(D)(I) of the Clean Air Act for the
PM2.5 NAAQS. These provisions do not invalidate or otherwise
affect the obligations of States, emissions sources, or other
responsible entities with respect to all portions of plans approved or
promulgated under this part, nor the obligations of States under the
requirements of Sec. Sec. 51.124 and 51.125 of this chapter.
Subpart B--Alabama
0
3. Subpart B is amended by adding Sec. Sec. 52.54 and 52.55 to read as
follows:
Sec. 52.54 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Alabama and for which requirements are set forth under the
Federal CAIR NOX Annual and Ozone Season Trading Programs in
part 97 of this chapter must comply with such applicable requirements.
Sec. 52.55 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Alabama and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
[[Page 25374]]
Subpart E--Arkansas
0
4. Subpart E is amended by adding Sec. Sec. 52.184 to read as follows:
Sec. 52.184 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Arkansas and for which requirements are set forth under
the Federal CAIR NOX Ozone Season Trading Program in part 97
of this chapter must comply with such applicable requirements.
Subpart H--Connecticut
0
5. Subpart H is amended by adding Sec. Sec. 52.386 to read as follows:
Sec. 52.386 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Connecticut and for which requirements are set forth under
the Federal CAIR NOX Ozone Season Trading Program in part 97
of this chapter must comply with such applicable requirements.
Subpart I--Delaware
0
6. Subpart I is amended by adding Sec. Sec. 52.440 and 52.441 to read
as follows:
Sec. 52.440 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Delaware and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.441 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Delaware and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart J--District of Columbia
0
7. Subpart J is amended by adding Sec. Sec. 52.484 and 52.485 to read
as follows:
Sec. 52.484 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the District of Columbia and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.485 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the District of Columbia and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart K--Florida
0
8. Subpart K is amended by adding Sec. Sec. 52.540 and 52.541 to read
as follows:
Sec. 52.540 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Florida and for which requirements are set forth under the
Federal CAIR NOX Annual and Ozone Season Trading Programs in
part 97 of this chapter must comply with such applicable requirements.
Sec. 52.541 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Florida and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
Subpart L--Georgia
0
9. Subpart L is amended by adding Sec. Sec. 52.584 and 52.585 to read
as follows:
Sec. 52.584 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Georgia and for which requirements are set forth under
Federal CAIR NOX Annual Trading Programs in part 97 of this
chapter must comply with such applicable requirements.
Sec. 52.585 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Georgia and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
Subpart O--Illinois
0
10. Subpart O is amended by adding Sec. Sec. 52.745 and 52.746 to read
as follows:
Sec. 52.745 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Illinois and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.746 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Illinois and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart P--Indiana
0
11. Subpart P is amended by adding Sec. Sec. 52.789 and 52.790 to read
as follows:
Sec. 52.789 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Indiana and for which requirements are set forth under the
Federal CAIR NOX Annual and Ozone Season Trading Programs in
part 97 of this chapter must comply with such applicable requirements.
Sec. 52.790 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Indiana and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
[[Page 25375]]
Subpart Q--Iowa
0
12. Subpart Q is amended by adding Sec. Sec. 52.840 and 52.841 to read
as follows:
Sec. 52.840 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Iowa and for which requirements are set forth under the
Federal CAIR NOX Annual and Ozone Season Trading Programs in
part 97 of this chapter must comply with such applicable requirements.
Sec. 52.841 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Iowa and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
Subpart S--Kentucky
0
13. Subpart S is amended by adding Sec. Sec. 52.940 and 52.941 to read
as follows:
Sec. 52.940 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Kentucky and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.941 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Kentucky and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart T--Louisiana
0
14. Subpart T is amended by adding Sec. Sec. 52.984 and 52.985 to read
as follows:
Sec. 52.984 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Louisiana and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.985 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Louisiana and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart V--Maryland
0
15. Subpart V is amended by adding Sec. Sec. 52.1084 and 52.1085 to
read as follows:
Sec. 52.1084 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Maryland and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1085 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Maryland and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart W--Massachusetts
0
16. Subpart W is amended by adding Sec. 52.1140 to read as follows:
Sec. 52.1140 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Massachusetts and for which requirements are set forth
under the Federal CAIR NOX Ozone Season Trading Program in
part 97 of this chapter must comply with such applicable requirements.
Subpart X--Michigan
0
17. Subpart X is amended by adding Sec. Sec. 52.1186 and 52.1187 to
read as follows:
Sec. 52.1186 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Michigan and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1187 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Michigan and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart Y--Minnesota
0
18. Subpart Y is amended by adding Sec. Sec. 52.1240 and 52.1241 to
read as follows:
Sec. 52.1240 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Minnesota and for which requirements are set forth under
the Federal CAIR NOX Annual Trading Programs in part 97 of
this chapter must comply with such applicable requirements.
Sec. 52.1241 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Minnesota and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart Z--Mississippi
0
19. Subpart Z is amended by adding Sec. Sec. 52.1284 and 52.1285 to
read as follows:
Sec. 52.1284 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Mississippi and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must
[[Page 25376]]
comply with such applicable requirements.
Sec. 52.1285 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Mississippi and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart AA--Missouri
0
20. Subpart AA is amended by adding Sec. Sec. 52.1341 and 52.1342 to
read as follows:
Sec. 52.1341 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Missouri and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1342 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Missouri and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart FF--New Jersey
0
21. Subpart FF is amended by adding Sec. Sec. 52.1584 and 52.1585 to
read as follows:
Sec. 52.1584 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of New Jersey and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading Program
in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1585 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of New Jersey and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart HH--New York
0
22. Subpart HH is amended by adding Sec. Sec. 52.1684 and 52.1685 to
read as follows:
Sec. 52.1684 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of New York and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1685 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of New York and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart II--North Carolina
0
23. Subpart II is amended by adding Sec. Sec. 52.1784 and 52.1785 to
read as follows:
Sec. 52.1784 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of North Carolina and for which requirements are set forth
under the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.1785 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of North Carolina and for which requirements are set forth
under the Federal CAIR SO2 Trading Program in part 97 of
this chapter must comply with such applicable requirements.
Subpart KK--Ohio
0
24. Subpart KK is amended by adding Sec. Sec. 52.1891 and 52.1892 to
read as follows:
Sec. 52.1891 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Ohio and for which requirements are set forth under the
Federal CAIR NOX Annual and Ozone Season Trading Programs in
part 97 of this chapter must comply with such applicable requirements.
Sec. 52.1892 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Ohio and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
Subpart NN--Pennsylvania
0
25. Subpart NN is amended by adding Sec. Sec. 52.2040 and 52.2041 to
read as follows:
Sec. 52.2040 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Pennsylvania and for which requirements are set forth
under the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.2041 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Pennsylvania and for which requirements are set forth
under the Federal CAIR SO2 Trading Program in part 97 of
this chapter must comply with such applicable requirements.
Subpart PP--South Carolina
0
26. Subpart PP is amended by adding Sec. Sec. 52.2140 and 52.2141 to
read as follows:
Sec. 52.2140 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of South Carolina and for which requirements are set forth
under the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must
[[Page 25377]]
comply with such applicable requirements.
Sec. 52.2141 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of South Carolina and for which requirements are set forth
under the Federal CAIR SO2 Trading Program in part 97 of
this chapter must comply with such applicable requirements.
Subpart RR--Tennessee
0
27. Subpart RR is amended by adding Sec. Sec. 52.2240 and 52.2241 to
read as follows:
Sec. 52.2240 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Tennessee and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.2241 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Tennessee and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart SS--Texas
0
28. Subpart SS is amended by adding Sec. Sec. 52.2283 and 52.2284 to
read as follows:
Sec. 52.2283 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Texas and for which requirements are set forth under the
Federal CAIR NOX Annual Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Sec. 52.2284 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Texas and for which requirements are set forth under the
Federal CAIR SO2 Trading Program in part 97 of this chapter
must comply with such applicable requirements.
Subpart VV--Virginia
0
29. Subpart VV is amended by adding Sec. Sec. 52.2440 and 52.2441 to
read as follows:
Sec. 52.2440 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Virginia and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.2441 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Virginia and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
Subpart XX--West Virginia
0
30. Subpart XX is amended by adding Sec. Sec. 52.2540 and 52.2541 to
read as follows:
Sec. 52.2540 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of West Virginia and for which requirements are set forth
under the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.2541 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of West Virginia and for which requirements are set forth
under the Federal CAIR SO2 Trading Program in part 97 of
this chapter must comply with such applicable requirements.
Subpart YY--Wisconsin
0
31. Subpart YY is amended by adding Sec. Sec. 52.2587 and 52.2588 to
read as follows:
Sec. 52.2587 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of nitrogen oxides?
The owner or operator of each NOX source located within
the State of Wisconsin and for which requirements are set forth under
the Federal CAIR NOX Annual and Ozone Season Trading
Programs in part 97 of this chapter must comply with such applicable
requirements.
Sec. 52.2588 Interstate pollutant transport provisions; What are the
FIP requirements for decreases in emissions of sulfur dioxide?
The owner or operator of each SO2 source located within
the State of Wisconsin and for which requirements are set forth under
the Federal CAIR SO2 Trading Program in part 97 of this
chapter must comply with such applicable requirements.
PART 72--[AMENDED]
0
1. The authority citation for Part 72 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
0
2. Section 72.2 is amended, in the definition of ``Receive or
receipt'', by revising the words ``official correspondence log'' to
read ``official log''.
0
3. Section 72.7 is amended as follows:
0
a. By revising paragraph (f)(2); and
0
b. In paragraph (f)(4)(i), by revising the words ``become an affected
unit under the Acid Rain Program and parts 70 and 71 of this chapter''
to read, for purposes of applying parts 70 and 71 of this chapter,
shall be treated as an affected unit under the Acid Rain Program''. The
revision reads as follows:
Sec. 72.7 New units exemption.
* * * * *
(f) * * *
(2) For any period for which a unit is exempt under this section:
(i) For purposes of applying parts 70 and 71 of this chapter, the
unit shall not be treated as an affected unit under the Acid Rain
Program and shall continue to be subject to any other applicable
requirements under parts 70 and 71 of this chapter.
(ii) The unit shall not be eligible to be an opt-in source under
part 74 of chapter.
* * * * *
0
4. Section 72.8 is amended as follows:
0
a. By revising paragraph (d)(4); and
0
b. In paragraph (d)(6)(i) introductory text, by revising the words
``become an affected unit under the Acid Rain Program and parts 70 and
71 of this chapter'' to read ,`` for purposes of
[[Page 25378]]
applying parts 70 and 71 of this chapter, shall be treated as an
affected unit under the Acid Rain Program''.
The revision reads as follows:
Sec. 72.8 Retired units exemption.
* * * * *
(d) * * *
(4) For any period for which a unit is exempt under this section:
(i) For purposes of applying parts 70 and 71 of this chapter, the
unit shall not be treated as an affected unit under the Acid Rain
Program and shall continue to be subject to any other applicable
requirements under parts 70 and 71 of this chapter.
(ii) The unit shall not be eligible to be an opt-in source under
part 74 of chapter.
* * * * *
Sec. 72.20 [Amended]
0
5. Section 72.20 is amended, in paragraph (b), by revising the words
``his or her actions'' to read ``his or her representations, actions''.
Sec. 72.22 [Amended]
0
6. Section 72.22 is amended, in paragraph (b), by revising the words
``any action, representation, or failure to act'' to read ``any
representation, action, inaction, or submission'' whenever they appear.
Sec. 72.23 [Amended]
0
7. Section 72.23 is amended as follows:
0
a. In paragraphs (a) and (b), by revising the words ``submissions,
actions, and inactions'' to read ``representations, actions, inactions,
and submissions''; and
0
b. In paragraph (c)(1), by revising the words ``a new owner'' to read
``an owner'', by revising the words ``such new owner'' to read ``such
owner'', by revising the words ``submissions, actions, and inactions''
to read ``representations, actions, inactions, and submissions'', and
by revising the words ``the new owner'' to read ``the owner.''
Sec. 72.24 [Amended]
0
8. Section 72.24 is amended as follows:
0
a. In paragraph (a)(1) by revising the words ``is submitted.'' to read
``is submitted, including identification and nameplate capacity of each
generator served by each such unit'';
0
b. In paragraph (a)(6), by revising the words ``actions, inactions, or
submissions'' to read ``representations, actions, inactions, or
submissions''; and
0
c. In paragraph (a)(9)(ii), by revising the words ``or ,if such
multiple'' to read ``, except that, if such multiple''.
Sec. 72.25 [Amended]
0
9. Section 72.25 is amended, in paragraph (b), by revising the words
``submission, action or inaction'' to read ``representation, action,
inaction, or submission'' and revise the words ``submission, action, or
inaction'' to read ``representation, action, inaction, or submission''.
0
10. Add a new 72.26 to read as follows:
Sec. 72.26 Delegation by designated representative and alternate
designated representative.
(a) A designated representative may delegate, to one or more
natural persons, his or her authority to make an electronic submission
(in a format prescribed by the Administrator) to the Administrator
provided for or required under this part and parts 73 through 77 of
this chapter.
(b) An alternate designated representative may delegate, to one or
more natural persons, his or her authority to make an electronic
submission (in a format prescribed by the Administrator) to the
Administrator provided for or required under this part and parts 73
through 77 of this chapter.
(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 designated representative or alternate 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 designated
representative or alternate 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 designated
representative or alternate designated representative, as appropriate:
(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 designated representative or alternate designated
representative, as appropriate, and before this notice of delegation is
superseded by another notice of delegation under 40 CFR 72.26(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 72.26(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 72.26 is terminated.''
(d) A notice of delegation submitted under paragraph (c) of this
section shall be effective, with regard to the designated
representative or alternate 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 designated representative or alternate 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 designated
representative or alternate designated representative submitting such
notice of delegation.
PART 73--[AMENDED]
0
1. The authority citation for part 73 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
Sec. 73.31 [Amended]
0
2. Section 73.31 is amended, in paragraph (c)(1)(v), by revising the
words ``actions, inactions, or submissions'' to read ``representations,
actions, inactions, or submissions''.
0
3. Section 73.33 is amended as follows:
0
a. In paragraph (d)(4), by revising the words ``action, representation,
or failure to act'' to read ``representation, action, inaction, or
submission'' and by revising the word ``an action'' to read ``a
representation, action, inaction, or submission'';
0
b. In paragraph (e), by revising the word ``actions'' to read
``representations, actions, inactions, or submissions'';
0
c. In paragraph (f), by revising the words ``any submission to'' to
read ``any representation, action, inaction, or submission to'' and
revise the words ``the recordation of transfers submitted
[[Page 25379]]
by'' to read ``any representation, action, inaction, or submission
of''; and
0
d. By adding a new paragraph (g) to read as follows:
Sec. 73.33 Authorized account representative.
* * * * *
(g) Delegation by authorized account representative and alternate
authorized account representative. (1) An authorized account
representative may delegate, to one or more natural persons, his or her
authority to make an electronic submission (in a format prescribed by
the Administrator) to the Administrator provided for or required under
this part.
(2) An alternate authorized account representative may delegate, to
one or more natural persons, his or her authority to make an electronic
submission (in a format prescribed by the Administrator) to the
Administrator provided for or required under this part.
(3) In order to delegate authority to make an electronic submission
to the Administrator in accordance with paragraph (g)(1) or (2) of this
section, the authorized account representative or alternate 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:
(i) The name, address, e-mail address, telephone number, and
facsimile transmission number (if any) of such authorized account
representative or alternate authorized account representative;
(ii) The name, address, e-mail address, telephone number, and,
facsimile transmission number (if any) of each such natural person
(referred to as an ``agent'');
(iii) For each such natural person, a list of the type or types of
electronic submissions under paragraph (g)(1) or (2) of this section
for which authority is delegated to him or her;
(iv) The following certification statements by such authorized
account representative or alternate authorized account representative:
(A) ``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 authorized account representative or alternate
authorized representative, as appropriate, and before this notice of
delegation is superseded by another notice of delegation under 40 CFR
73.33(g)(4) shall be deemed to be an electronic submission by me.''
(B) ``Until this notice of delegation is superseded by another
notice of delegation under 40 CFR 73.33(g)(4), 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 73.33(g) is eliminated.''
(4) A notice of delegation submitted under paragraph (g)(3) of this
section shall be effective, with regard to the authorized account
representative or alternate 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 authorized account
representative or alternate 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.
(5) Any electronic submission covered by the certification in
paragraph (g)(3)(iv)(A) of this section and made in accordance with a
notice of delegation effective under paragraph (g)(4) of this section
shall be deemed to be an electronic submission by the designated
representative or alternate designated representative submitting such
notice of delegation.
PART 74--[AMENDED]
0
1. The authority citation for Part 74 continues to read as follows:
Authority: 7601 and 7651 et seq.
Sec. 74.4 [Amended]
0
2. In Sec. 74.4, paragraph (c) is removed.
PART 78--[AMENDED]
0
1. The authority citation for part 78 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.
0
2. Section 78.1 is amended as follows:
0
a. In paragraph (b)(8)(ii), by revising ``Sec. 97.256'' to read
``Sec. 96.256''.
0
b. By adding new paragraphs (b)(10), (b)(11), and (b)(12) to read as
follows:
Sec. 78.1 Purpose and scope.
* * * * *
(b) * * *
(10) Under subparts AA through II of part 97 of this chapter,
(i) The decision on the allocation of CAIR NOX
allowances under subpart EE of part 97 of this chapter.
(ii) The decision on the deduction of CAIR NOX
allowances, and the adjustment of the information in a submission and
the decision on the deduction or transfer of CAIR NOX
allowances based on the information as adjusted, under Sec. 97.154 of
this chapter;
(iii) The correction of an error in a CAIR NOX Allowance
Tracking System account under Sec. 97.156 of this chapter;
(iv) The decision on the transfer of CAIR NOX allowances
under Sec. 97.161 of this chapter;
(v) The finalization of control period emissions data, including
retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 97.175
of this chapter.
(11) Under subparts AAA through III of part 97 of this chapter,
(i) The decision on the deduction of CAIR SO2
allowances, and the adjustment of the information in a submission and
the decision on the deduction or transfer of CAIR SO2
allowances based on the information as adjusted, under Sec. 97.254 of
this chapter;
(ii) The correction of an error in a CAIR SO2 Allowance
Tracking System account under Sec. 97.256 of this chapter;
(iii) The decision on the transfer of CAIR SO2
allowances under Sec. 97.261 of this chapter;
(iv) The finalization of control period emissions data, including
retroactive adjustment based on audit;
(v) The approval or disapproval of a petition under Sec. 97.275 of
this chapter.
(12) Under subparts AAAA through IIII of part 97 of this chapter,
(i) The decision on the allocation of CAIR NOX Ozone
Season allowances under subpart EEEE of part 97 of this chapter.
(ii) The decision on the deduction of CAIR NOX Ozone
Season allowances, and the adjustment of the information in a
submission and the decision on the deduction or transfer of CAIR
NOX Ozone Season allowances based on the information as
adjusted, under Sec. 97.354 of this chapter;
(iii) The correction of an error in a CAIR NOX Ozone
Season Allowance Tracking System account under Sec. 97.356 of this
chapter;
(iv) The decision on the transfer of CAIR NOX Ozone
Season allowances under Sec. 97.361;
(v) The finalization of control period emissions data, including
retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 97.375
of this chapter.
* * * * *
0
3. Section 78.3 is amended as follows:
0
a. In paragraph (b)(3)(i), by revising the words ``under paragraph
(a)(4), (5), or (6) of this section'' to read ``under paragraph (a)(4),
(5), (6), (7), (8), or (9) of this section'';
0
b. In paragraph (d)(3), by revising the words ``account certificate of
[[Page 25380]]
representation submitted by a CAIR designated representative'' to read
``certificate of representation submitted by a CAIR designated
representative'' and by revising the words ``or subparts AAAA through
IIII of part 96 of this chapter'', the words ``subparts AAAA through
IIII of part 96 of this chapter, or under part 97 of this chapter'';
and
0
c. By adding new paragraphs (a)(7), (a)(8), (a)(9), (d)(8), (d)(9), and
(d)(10) to read as follows:
Sec. 78.3 Petition for administrative review and request for
evidentiary hearing.
(a) * * *
(7) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AA through
II of part 97 of this chapter and that is appealable under Sec.
78.1(a):
(i) The CAIR designated representative for a unit or source, or the
CAIR authorized account representative for any CAIR NOX
Allowance Tracking System account, covered by the decision; or
(ii) Any interested person.
(8) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AAA through
III of part 97 and that is appealable under Sec. 78.1(a):
(i) The CAIR designated representative for a unit or source, or the
CAIR authorized account representative for any CAIR SO2
Allowance Tracking System account, covered by the decision; or
(ii) Any interested person.
(9) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AAAA
through III of part 97 and that is appealable under Sec. 78.1(a):
(i) The CAIR designated representative for a unit or source, or the
CAIR authorized account representative for any CAIR Ozone Season
NOX Allowance Tracking System account, covered by the
decision; or
(ii) Any interested person.
* * * * *
(d) * * *
(8) Any provision or requirement of subparts AA through II of part
97 of this chapter, including the standard requirements under Sec.
97.106 of this chapter and any emission monitoring or reporting
requirements.
(9) Any provision or requirement of subparts AAA through III of
part 97 of this chapter, including the standard requirements under
Sec. 97.206 of this chapter and any emission monitoring or reporting
requirements.
(10) Any provision or requirement of subparts AAAA through IIII of
part 97 of this chapter, including the standard requirements under
Sec. 97.306 of this chapter and any emission monitoring or reporting
requirements.
PART 96--NOX BUDGET TRADING PROGRAM AND CAIR
NOX AND SO2 TRADING PROGRAMS FOR STATE
IMPLEMENTATION PLANS
0
1. The heading of part 96 is revised to read as set forth above.
0
2. The authority citation for part 96 continues to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651, et seq.
0
3. Section 96.102 is amended as follows:
0
a. By revising the definition of ``Allocate or allocation'';
0
b. In the definition of ``Allowance transfer deadline'', by revising
the words ``midnight of March 1, if it is a business day, or, if March
1 is not a business day, midnight of the first business day
thereafter'' to read ``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),'';
0
c. In the definition of ``Alternate CAIR designated representative'',
by revising the words ``in accordance with'' to read ``, in accordance
with'' and by adding at the end the words ``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.'';
0
d. In the definition of ``CAIR authorized account representative'', by
revising the words ``subparts BB and II'' to read ``subparts BB, FF,
and II'';
0
e. In the definition of ``CAIR designated representative'', by adding
at the end the words ``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.'';
0
f. By revising the definition of ``CAIR NOX allowance'';
0
g. In the definition of ``CAIR NOX allowance deduction or
deduct CAIR NOX allowances'', by adding, after the words
``compliance account'', the words ``, e.g.,'';
0
h. In the definition of ``CAIR NOX Annual Trading Program'',
by revising the words ``Sec. 51.123 of this chapter,'' to read ``Sec.
51.123 of this chapter or established by the Administrator in
accordance with subparts AA through II of part 97 of this chapter and
Sec. Sec. 51.123(p) and 52.35 of this chapter,'';
0
i. In the definition of ``CAIR NOX emissions limitation'',
by revising the words ``tonnage equivalent of'' to read ``tonnage
equivalent, in NOX emissions in a control period, of'' and
by revising the words ``for a control period'' to read ``for the
control period'';
0
j. In the definition of ``CAIR NOX Ozone Season source'', by
revising the words ``includes one or more CAIR NOX Ozone
Season units'' to read ``is subject to the CAIR NOX Ozone
Season Trading Program'';
0
k. In the definition of ``CAIR NOX Ozone Season Trading
Program'', by revising the words ``Sec. 51.123 of this chapter,'' to
read ``Sec. 51.123 of this chapter or established by the Administrator
in accordance with subparts AAAA through IIII of part 97 of this
chapter and Sec. Sec. 51.123(ee) and 52.35 of this chapter,'';
0
l. By removing the definition of ``CAIR NOX Ozone Season
unit'';
0
m. In the definition of ``CAIR SO2 source'', by revising the
words ``includes one or more CAIR SO2 units'' to read ``is
subject to the CAIR SO2 Trading Program'';
0
n. In the definition of ``CAIR SO2 Trading Program'', by
revising the words ``Sec. 51.124 of this chapter,'' to read ``Sec.
51.124 of this chapter or established by the Administrator in
accordance with subparts AAA through III of part 97 of this chapter and
Sec. Sec. 51.124(r) and 52.36 of this chapter,'';
0
o. By removing the definition of ``CAIR SO2 unit'';
0
p. In paragraph (2) of the definition of ``Cogeneration unit'', by
revising the words ``calendar year after which'' to read ``calendar
year after the calendar year in which'';
0
q. In paragraph (2) of the definition of ``Combustion turbine'', by
revising the words ``any associated heat recovery steam generator''to
read ``any associated duct burner, heat recovery steam generator,'';
0
r. By revising the definition of ``Commence commercial operation'';
0
s. By revising the definition of ``Commence operation'';
0
t. In the definition of ``Control period'', by revising the words
``January 1 of a calendar year and'' to read ``January 1 of a calendar
year, except as provided in Sec. 96.106(c)(2), and'';
0
u. By revising the definition of ``Maximum design heat input'';
0
v. In the definition of ``Nameplate capacity'', by revising the words
``other deratings) as specified'' to read ``other deratings) as of such
installation as specified'' and by revising the words ``maximum amount
as specified'' to read
[[Page 25381]]
``maximum amount as of such completion as specified'';
0
w. In the definition of ``Oil-fired'', by revising the words ``in a
specified year.'' to read ``in a specified year and not qualifying as
coal-fired.'';
0
x. In the definition of ``Receive or receipt'', by revising the words
``official correspondence log'' to read ``official log''; and
0
y. By adding new definitions of ``Hg Budget Trading Program'',
``Replacement, replace, or replaced'', and ``Solid waste incineration
unit'' to read as follows:
Sec. 96.102 Definitions.
* * * * *
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.
* * * * *
CAIR NOX allowance means a limited authorization issued by a
permitting authority or the Administrator under provisions of a State
implementation plan that are approved under Sec. 51.123(o)(1) or (2)
or (p) of this chapter, or under subpart EE of part 97 or Sec. 97.188
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 provisions of a State implementation plan that are
approved under Sec. 51.123(o)(1) or (2) or (p) of this chapter or
subpart EE of part 97 or Sec. 97.188 of this chapter shall not be a
CAIR NOX allowance.
* * * * *
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 Sec. 96.105 and Sec. 96.184(h).
(i) For a unit that is a CAIR NOX unit under Sec.
96.104 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 Sec.
96.104 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 Sec. 96.105, for a unit that is not a CAIR NOX
unit under Sec. 96.104 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 Sec. 96.104.
(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 Sec. 96.184(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 Sec. 96.184(h).
* * * * *
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
Sec. 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.
* * * * *
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.
* * * * *
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).
* * * * *
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.
* * * * *
0
4. Section 96.103 is revised to read as follows:
Sec. 96.103 Measurements, abbreviations, and acroynyms.
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
[[Page 25382]]
0
5. Section 96.104 is revised to read as follows:
Sec. 96.104 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.
Sec. 96.105 [Amended]
0
6. Section 96.105 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``Sec. 96.106(c)(4)
through (8), Sec. 96.107, and subparts EE through GG of this part'' to
read ``Sec. 96.106(c)(4) through (7), Sec. 96.107, Sec. 96.108, and
(subparts BB and EE through GG'';
0
b. In paragraph (b)(3), by revising the words ``shall retain at the
source'' to read ``shall retain, at the source''; and
0
c. In paragraph (b)(7), by revising the words ``commences operation and
commercial operation'' to read ``commences commercial operation''.
Sec. 96.106 [Amended]
0
7. Section 96.106 is amended as follows:
0
a. In paragraph (a)(1)(i), by revising the words ``in Sec. 96.121(a)
and (b)'' to read ``in Sec. 96.121'';
0
b. In paragraph (c)(2), by revising the words ``under paragraph (c)(1)
of this section'' to read ``under paragraph (c)(1) of this section for
the control period'' and by revising the words ``under Sec.
96.170(b)(1), (2), or (5)'' to read ``under Sec. 96.170(b)(1), (2), or
(5) and for each control period thereafter'';
0
c. In paragraph (c)(4), by revising the words ``subpart EE'' to read
``subparts FF, GG, and II'';
0
d. In paragraph (c)(7), by revising the words ``under subpart FF, GG,
or II'' to read ``under subpart EE, FF, GG, or II'', by revising the
words ``from a CAIR NOX unit's compliance account'' to read
``from a CAIR NOX source's compliance account'', and by
removing the words ``that includes the CAIR NOX unit'';
0
e. In paragraph (d)(1), by removing the paragraph designation ``(1)''
and by redesignating paragraph (i) as paragraph (d)(1); and
0
f. By removing paragraph (d)(2) and by redesignating paragraph (ii) as
paragraph (d)(2).
Sec. 96.111 [Amended]
0
8. Section 96.111 is amended, in paragraph (c), by revising the words
``Sec. 96.151 and 96.182'' to read ``96.115, 96.151, and 96.182''.
Sec. 96.112 [Amended]
0
9. Section 96.112 is amended, in paragraph (c)(1), by revising the
words ``a new owner'' to read ``an owner'', by revising the words
``such new owner'' to read ``such owner'', and by revising the words
``the new owner'' to read ``the owner''.
Sec. 96.113 [Amended]
0
10. Section 96.113 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``is submitted'' to read
``is submitted, including identification and nameplate capacity of each
generator served by each such unit''; and
0
b. In paragraph (a)(4)(iv), by revising the words ``where a customer''
to read ``where a utility or industrial customer''.
0
11. Add a new Sec. 96.115 to read as follows:
Sec. 96.115 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
[[Page 25383]]
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
96.115(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 96.115(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 96.115 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.
Sec. 96.120 [Amended]
0
12. Section 96.120 is amended, in paragraph (a), by revising the words
``otherwise by this subpart and'' to read ``otherwise by Sec. 96.105,
this subpart, and''.
Sec. 96.121 [Amended]
0
13. Section 96.121 is amended as follows:
0
a. In paragraph (a), by revising the words ``commences operation'' to
read ``commences commercial operation, except as provided in Sec.
96.183(a)''; and
0
b. In paragraph (b), by revising the words ``permit renewal'' to read
``permit renewal, except as provided in Sec. 96.183(b)''.
Sec. 96.123 [Amended]
0
14. Section 96.123 is amended, in paragraph (b), by revising the words
``subpart FF, GG, or II'' to read ``subpart EE, FF, GG, or II''.
Sec. 96.141 [Amended]
0
15. Section 96.141 is amended as follows:
0
a. In paragraph (b)(1), removing the paragraph designation ``(1)'';
0
b. By removing paragraph (b)(2);
0
c. In paragraph (c)(1), removing the paragraph designation ``(1)''; and
0
d. By removing paragraph (c)(2).
0
16. Section 96.142 is amended as follows:
0
a. In paragraph (a)(2)(ii)(C), by revising the words ``3,414 Btu/kWh''
to read ``3,413 Btu/kWh'';
0
b. By revising paragraph (c) introductory text;
0
c. In paragraph (c)(1), by revising the words ``2009 through 2013'' to
read ``2009 through 2014'' and by revising the words ``in 2014'' to
read ``in 2015'';
0
d. In paragraph (c)(2), by revising the words ``The CAIR NOX
allowance allocation request must be submitted on or before July 1 of
the first control period for which CAIR NOX allowances are
requested'' to read ``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
0
e. In paragraph (c)(4)(ii), by revising the words ``On or after July
1'' to read ``On or after May 1''; and revising to read as follows:
Sec. 96.142 CAIR NOX allowance allocations.
* * * * *
(c) For each control period in 2009 and thereafter, the permitting
authority 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:
* * * * *
Sec. 96.143 [Amended]
0
17. Section 96.143 is amended as follows:
0
a. In paragraphs (b)(2), (c)(1), and (d), by revising the words ``July
1'' to read ``May 1'';
0
b. In paragraph (d)(3), by revising the words `` `Unit's allocation' is
the number of CAIR NOX allowances'' to read `` `Unit's
allocation' is the amount of CAIR NOX allowances'';
0
c. In paragraph (d)(4), by revising the words ``paragraph (d)(3) or
(4)'' to read ``paragraph (d)(2) or (3)''; and
0
d. In paragraph (d)(5), by revising the words ``paragraph (d)(5)'' to
read ``paragraph (d)(4)''.
0
18. Section 96.151 is amended as follows:
0
a. In paragraph (b)(2) introductory text, by revising the word
``representative'' to read ``representative or alternate CAIR
authorized account representative'';
0
b. In paragraph (b)(3)(iii)(A), by revising the words ``a new person''
to read ``a person'', by revising the words ``such new person'' to read
``such person'', and by revising the words ``the new person'' to read
``the person'';
0
c. In paragraph (b)(3)(iii)(B), by revising the words ``addition of
persons'' to read ``addition of a new person'';
0
d. In paragraph (b)(4) introductory text, by revising the word
``representative'' to read ``representative or alternate CAIR
authorized account representative'';
0
e. In paragraphs (b)(4)(ii) and (iii), by revising the words
``alternative CAIR'' to read ``alternate CAIR'' whenever they appear;
and
0
f. By adding a new paragraph (b)(5) to read as follows:
[[Page 25384]]
Sec. 96.151 Establishment of accounts.
* * * * *
(b) * * *
(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 96.151(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 96.151 (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 96.151 (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.
* * * * *
0
19. Section 96.153 is amended as follows:
0
a. In paragraph (a), by revising the words ``By December 1, 2006,'' to
read ``By September 30, 2007,'' and revising the words ``at a source''
to read ``at the source'';
0
b. In paragraphs (b) and (d), by removing the words ``or as determined
by the Administrator''; and
0
c. By revising paragraph (c) to read as follows:
Sec. 96.153 Recordation of CAIR NOX allowance allocations.
* * * * *
(c) 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, as submitted by the permitting
authority in accordance with Sec. 96.141(b), for the control period in
the sixth year after the year of the applicable deadline for
recordation under this paragraph.
* * * * *
Sec. 96.154 [Amended]
0
20. Section 96.154 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``prior year;'' to read
``prior year; and'';
0
b. In paragraph (a)(2), revising the words ``Sec. 96.160 by the
allowance transfer deadline for the control period; and'' to read
``Sec. Sec. 96.160 and 96.161 by the allowance transfer deadline for
the control period.'';
0
c. By removing paragraph (a)(3);
0
d. In paragraph (c)(2)(ii), by revising the words ``to any unit'' to
read ``to any entity'';
0
e. In paragraph (e), by revising the words ``under paragraph (b) or (d)
of this section'' to read ``under paragraphs (b) and (d) of this
section and subpart II'';
0
f. In paragraph (f)(2), by revising the words ``of this section.'' to
read ``of this section, and record such deductions and transfers.''
Sec. 96.155 [Amended]
0
21. Section 96.155 is amended, in paragraph (b), by revising the words
``Sec. 96.156, or subpart GG'' to read ``Sec. 96.156, or subpart GG
or II''.
Sec. 96.157 [Amended]
0
22. Section 96.157 is amended, in paragraphs (a) and (b), by revising
the words ``Sec. 96.160'' to read ``Sec. Sec. 96.160 and 96.161''.
0
23. Section 96.170 is amended as follows:
0
a. In paragraph (b) introductory text, by revising the words ``The
owner'' to read ``Except as provided in paragraph (e) of this section,
the owner'';
0
b. In paragraph (b)(5), by revising the words ``paragraphs (b)(1), (2),
and (4) of this section and solely for purposes of Sec. 96.106(c)(2),
for the owner'' to read ``paragraphs (b)(1) and (2) of this section,
for the owner'';
0
c. In paragraph (c)(1), by removing the paragraph designation ``(1)''
and by revising the words ``Except as provided in paragraph (c)(2) of
this section, the owner'' to read ``The owner'';
0
d. By removing paragraph (c)(2);
0
e. In paragraph (d)(3), by revising the words ``the atmosphere'' to
read ``the atmosphere or heat input''; and
0
f. By adding a new paragraph (e) to read as follows:
Sec. 96.170 General Requirements.
* * * * *
(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.
[[Page 25385]]
Sec. 96.171 [Amended]
0
24. Section 96.171 is amended, in paragraph (c), by revising the words
``Sec. 75.12, Sec. 75.17, or subpart H of part 75'' to read ``Sec.
75.12 or Sec. 75.17''.
Sec. 96.173 [Amended]
0
25. Section 96.173 is amended by removing the words ``, except that if
the unit is not subject to an Acid Rain emissions limitation, the
notification is only required to be sent to the permitting authority''.
0
26. Section 96.174 is amended as follows:
0
a. In paragraph (d)(1)(i), by revising the words ``2008; or'' to read
``2008;'';
0
b. In paragraph (d)(1)(ii), by revising the words ``2008.'' to read
``2008;'';
0
c. By adding new paragraphs (d)(1)(iii) and (iv); and
0
d. In paragraph (d)(3), by revising the words ``or CAIR SO2
Trading Program,'' to read ``, CAIR SO2 Trading Program, or
Hg Budget Trading Program,'' and by revising the words ``subparts F
through H'' to read ``subparts F through I'' and revising to read as
follows:
Sec. 96.174 Recordkeeping and reporting.
* * * * *
(d) * * *
(1) * * *
(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 Sec. 96.184(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 Sec. 96.184(g).
* * * * *
Sec. 96.176 [Removed]
0
27. Section 96.176 is removed.
0
28. Section 96.183 is amended as follows:
0
a. By revising paragraph (a)(5); and
0
b. In paragraph (b)(2), by revising the words ``CAIR opt-in unit``to
read ''CAIR NOX opt-in unit'' and revising to read as
follows:
Sec. 96.183 Applying for CAIR opt-in permit.
(a)* * *
(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 Sec. 96.188(b) or Sec.
96.188(c) (subject to the conditions in Sec. Sec. 96.184(h) and
96.186(g)). If allocation under Sec. 96.188(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.
* * * * *
Sec. 96.184 [Amended]
0
29. Section 96.184 is amended as follows:
0
a. In paragraph (c)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and for the control periods
under paragraph (b)(2) of this section``to read''for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
b. In paragraph (d)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and the control periods
under paragraph (b)(2) of this section``to read''for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
c. In paragraph (d)(3), by revising the words ``for such control
period'' with words''for such control periods'';
0
d. In paragraph (f), by revising the words ``CAIR NOX opt-in
permit'' to read ``CAIR opt-in permit''; and
0
e. In paragraph (h)(2), by revising the words ``a CAIR opt-in unit'' to
read ``a CAIR NOX opt-in unit''.
0
30. Section 96.185 is amended as follows:
0
a. In paragraph (a)(5), by revising the words ``under Sec.
96.188(c)``to read''Sec. 96.188(b) or Sec. 96.188(c)''; and
0
b. By adding a new paragraph (c) to read as follows:
Sec. 96.185 CAIR opt-in permit contents.
* * * * *
(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.
Sec. 96.186 [Amended]
0
31. Section 96.186 is amended as follows:
0
a. In paragraph (a), by revising the words ``CAIR opt-in unit'' to read
``CAIR NOX opt-in unit''; and
0
b. In paragraph (b)(2), by revising the words ``equal in number to'' to
read ``equal in amount to''.
0
32. Section 96.187 is amended as follows:
0
a. In paragraph (b)(1), by revising the words ``under Sec. 96.123'' to
read ``under Sec. 96.123, and remove the CAIR opt-in permit
provisions,'';
0
b. In paragraph (b)(2)(i), by revising the words ``equal in number to''
to read ``equal in amount to'';
0
c. By revising paragraph (b)(3)(i);
0
d. In paragraph (b)(3)(ii), by revising the words ``Notwithstanding
paragraph (b)(3)(i) of this section, if'' to read ``If'', by revising
the words ``January 1'' to read ``December 31,'' and by revising the
words ``number of CAIR NOX allowances'' to read ``amount of
CAIR NOX allowances''; and
0
e. In paragraph (b)(3)(ii)(A), by revising the words ``number of CAIR
NOX allowances'' to read ``amount of CAIR NOX
allowances'' and revising to read as follows:
Sec. 96.187 Change in regulatory status.
* * * * *
(b) * * *
(3)(i) For every control period after the date on which the CAIR
NOX opt-in unit becomes a CAIR NOX unit under
Sec. 96.104, the CAIR NOX opt-in unit will be allocated
CAIR NOX allowances under Sec. 96.142.
* * * * *
Sec. 96.188 CAIR NOX allowance allocations to CAIR
NOX opt-in units.
0
33. Section 96.188 is amended as follows:
0
a. By revising the heading of the section as set forth above;
0
b. In paragraph (a)(2), by revising the words ``of the control period
in which a CAIR opt-in unit'' to read ``of the control period after the
control period in which a CAIR NOX opt-in unit'';
0
c. In paragraph (c), by revising the words ``issues a CAIR opt-in
permit'' to read ``issues a CAIR opt-in permit (based on a
demonstration of the intent to repower stated under Sec.
96.183(a)(5))''; and
0
d. In paragraph (d)(2), by revising the words ``CAIR opt-in unit'' to
read ``CAIR NOX opt-in unit'' and revising the words ``CAIR
opt-in unit''.
0
34. Section 96.202 is amended as follows:
0
a. By revising the definition of ``Allocate or allocation'';
0
b. In the definition of ``Allowance transfer deadline'', by revising
the words ``midnight of March 1, if it is a business day, or, if March
1 is not a business day, midnight of the first business day
thereafter'' to read ``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),'';
0
c. In the definition of ``Alternate CAIR designated representative'',
by adding at the end the words ``If the CAIR SO2
[[Page 25386]]
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.'';
0
d. In the definition of ``CAIR authorized account representative'', by
revising the words ``subparts BBB and III'' to read ``subparts BBB,
FFF, and III'';
0
e. In the definition of ``CAIR designated representative'', by adding
at the end the words ``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.'';
0
f. In the definition of ``CAIR NOX Annual Trading Program'',
by revising the words ``Sec. 51.123 of this chapter,'' to read ``Sec.
51.123 of this chapter or established by the Administrator in
accordance with subparts AA through II of part 97 of this chapter and
Sec. Sec. 51.123(p) and 52.35 of this chapter,'';
0
g. In the definition of ``CAIR NOX Ozone Season source'', by
revising the words ``includes one or more CAIR NOX Ozone
Season unit'' to read ``is subject to the CAIR NOX Ozone
Season Trading Program'';
0
h. In the definition of ``CAIR NOX Ozone Season Trading
Program'', by revising the words ``Sec. 51.123 of this chapter,'' to
read ``Sec. 51.123 of this chapter or established by the Administrator
in accordance with subparts AAAA through IIII of part 97 of this
chapter and Sec. Sec. 51.123(ee) and 52.35 of this chapter,'';
0
i. By removing the definition of ``CAIR NOX Ozone Season
unit'';
0
j. In the definition of ``CAIR NOX source'', by revising the
words ``includes one or more CAIR NOX units'' to read ``is
subject to the CAIR NOX Annual Trading Program'';
0
k. By removing the definition of ``CAIR NOX unit'';
0
l. In the definition of ``CAIR SO2 allowance'', by revising
in the introductory text the words ``under Sec. 96.288,'' to read
``under provisions of a State implementation plan that are approved
under Sec. 51.124(o)(1) or (2) or (r) of this chapter or Sec. 97.288
of this chapter,'', by designating the last sentence of the definition
as paragraph (4), and by revising in paragraph (4) the words ``(Program
or under the provisions of a State implementation plan that is approved
under Sec. 51.124(o)(1) or (2) of this chapter'' to read ``(Program,
provisions of a State implementation plan that are approved under Sec.
51.124(o)(1) or (2) or (r) of this chapter, or Sec. 97.288 of this
chapter'';
0
m. In the definition of ``CAIR SO2 allowance deduction or
deduct CAIR SO2 allowances'', by adding, after the words
``compliance account'', the words ``, e.g.,'';
0
n. In the definition of ``CAIR SO2 emissions limitation'',
by revising the words ``tonnage equivalent of'' to read ``tonnage
equivalent, in SO2 emissions in a control period, of'' and
by revising the words ``for a control period'' to read ``for the
control period''
0
o. In the definition of ``CAIR SO2 Trading Program'', by
revising the words ``Sec. 51.124 of this chapter,'' to read ``Sec.
51.124 of this chapter or established by the Administrator in
accordance with subparts AAA through III of part 97 of this chapter and
Sec. Sec. 51.124(r) and 52.36 of this chapter,'';
0
p. In paragraph (2) of the definition of ``Cogeneration unit'', by
revising the words ``calendar year after which'' to read ``calendar
year after the calendar year in which'';
0
q. In the definition of ``Combustion turbine'', by revising the words
``any associated heat recovery steam generator'' to read ``any
associated duct burner, heat recovery steam generator,'';
0
r. By revising the definition of ``Commence commercial operation'';
0
s. By revising the definition of ``Commence operation'';
0
t. In the definition of ``Control period'', by revising the words
``January 1 of a calendar year and'' to read ``January 1 of a calendar
year, except as provided in Sec. 96.206(c)(2), and'';
0
u. By revising the definition of ``Maximum design heat input'';
0
v. In the definition of ``Nameplate capacity'', by revising the words
``other deratings) as specified'' to read ``other deratings) as of such
installation as specified'' and by revising the words ``maximum amount
as specified'' to read ``maximum amount as of such completion as
specified'';
0
w. In the definition of ``Receive or receipt'', by revising the words
``official correspondence log'' to read ``official log'';
0
x. In the definition of ``Useful thermal energy'', by revising in
paragraph (2) the word ``heat'' with the word ``heating''; and
0
y. By adding new definitions of ``Hg Budget Trading Program'',
``Replacement, replace, or replaced'', and ``Solid waste incineration
unit'' to read as follows:
Sec. 96.202 Definitions.
* * * * *
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
provisions of a State implementation plan that are approved under Sec.
51.124(o)(1) or (2) or (r) of this chapter or Sec. 97.288 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.
* * * * *
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 Sec. 96.205 and Sec. 96.284(h).
(i) For a unit that is a CAIR SO2 unit under Sec.
96.204 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 Sec.
96.204 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 Sec. 96.205, for a unit that is not a CAIR SO2
unit under Sec. 96.204 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 Sec. 96.204.
(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.
[[Page 25387]]
(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 Sec. 96.284(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 (96.284(h).
* * * * *
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
Sec. 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.
* * * * *
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.
* * * * *
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).
* * * * *
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.
* * * * *
0
35. Section 96.203 is revised to read as follows:
Sec. 96.203 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
0
36. Section 96.204 is revised to read as follows:
Sec. 96.204 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
[[Page 25388]]
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.
Sec. 96.205 [Amended]
0
37. Section 96.205 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``Sec. 96.206(c)(4)
through (8), Sec. 96.207, and subparts FFF and GGG'' to read ``Sec.
96.206(c)(4) through (7), Sec. 96.207, Sec. 96.208, and subparts BBB,
FFF, and GGG'';
0
b. In paragraph (b)(2), by revising the words ``shall retain at the
source'' to read ``shall retain, at the source''; and
0
c. In paragraph (b)(6), by revising the words ``commences operation and
commercial operation'' to read ``commences commercial operation''.
Sec. 96.206 [Amended]
0
38. Section 96.206 is amended as follows:
0
a. In paragraph (a)(1)(i), by revising the words ``in Sec. 96.221(a)
and (b)'' to read ``in Sec. 96.221'';
0
b. In paragraph (c)(2), by revising the words ``under paragraph (c)(1)
of this section'' with ``under paragraph (c)(1) of this section for the
control period'' and by revising the words ``under Sec. 96.270(b)(1),
(2), or (5)'' to read ``under Sec. 96.270(b)(1), (2), or (5) and for
each control period thereafter'';
0
c. In paragraph (c)(7), by revising the words ``from a CAIR
SO2 unit's compliance account'' to read ``from a CAIR
SO2 source's compliance account'' and by removing the words
``that includes the CAIR SO2 unit''; and
0
d. In paragraph (d)(1), by removing the paragraph designation ``(1)''
and by redesignating paragraph (i) as paragraph (d)(1); and
0
e. By removing paragraph (d)(2) and by redesignating paragraph (ii) as
paragraph (d)(2).
Sec. 96.211 [Amended]
0
39. In paragraph (c), by revising the words ``96.251 and 96.282'' to
read ``96.215, 96.251, and 96.282''.
Sec. 96.212 [Amended]
0
40. Section 96.212 is amended, in paragraph (c)(1), by revising the
words ``a new owner'' to read ``an owner'', by revising the words
``such new owner'' to read ``such owner'', and by revising the words
``the new owner'' to read ``the owner''.
Sec. 96.213 [Amended]
0
41. Section 96.213 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``is submitted'' to read
``is submitted, including identification and nameplate capacity of each
generator served by each such unit''; and
0
b. In paragraph (a)(4)(iv), by revising the words ``where a customer''
to read ``where a utility or industrial customer''.
0
42. Add a new section 96.215 to read as follows:
Sec. 96.215 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
96.215(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 96.215(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 96.215 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.
Sec. 96.220 [Amended]
0
43. Section 96.220 is amended as follows:
0
a. In paragraph (a), by revising the words ``otherwise by this subpart
and'' to read ``otherwise by Sec. 96.205, this subpart, and''; and
0
b. In paragraph (b), by replacing the words ``CAIR SO2 units
at the source'' to read ``CAIR SO2 units at the source
covered by the CAIR permit''.
Sec. 96.221 [Amended]
0
44. Section 96.221 is amended as follows:
0
a. In paragraph (a), by revising the words ``commences operation'' to
read ``commences commercial operation, except as provided in Sec.
96.283(a)'' and
0
b. In paragraph (b), by revising the words ``permit renewal'' to read
``permit renewal, except as provided in Sec. 96.283(b)''.
0
45. Section 96.251 is amended as follows:
0
a. In paragraph (b)(2) introductory text, by revising the word
``representative'' to read ``representative
[[Page 25389]]
or alternate CAIR authorized account representative'';
0
b. In paragraph (b)(3)(iii)(A), by revising the words ``a new person''
to read ``a person'', revise the words ``such new person'' to read
``such person'', and revise the words ``the new person'' to read ``the
person'';
0
c. In paragraph (b)(3)(iii)(B), by revising the words ``addition of
persons'' to read ``addition of a new person'';
0
d. In paragraph (b)(4) introductory text, by revising the word
``representative'' to read ``representative or alternate CAIR
authorized account representative'';
0
e. In paragraphs (b)(4)(ii) and (iii), by revising the words
``alternative CAIR'' to read ``alternate CAIR'' whenever they appear;
and
0
f. By adding a new paragraph (b)(5) to read as follows:
Sec. 96.251 Establishment of accounts.
* * * * *
(b) * * *
(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 96.251(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 96.251 (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 96.251 (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.
* * * * *
Sec. 96.254 [Amended]
0
46. Section 96.254 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``prior year;'' to read
``prior year; and'';
0
b. In paragraph (a)(2), revising the words ``Sec. 96.260 by the
allowance transfer deadline for the control period; and'' to read
``Sec. Sec. 96.260 and 96.261 by the allowance transfer deadline for
the control period.'';
0
c. Removing paragraph (a)(3);
0
d. In paragraph (b)(1)(ii), by removing the words ``available under
paragraph (a) of this section and'';
0
d. In paragraphs (c)(2)(ii), (c)(2)(iv), and (c)(2)(vi), by revising
the words ``to any unit'' to read ``to any entity'';
0
e. In paragraph (d)(1), by revising the words ``3 times the number of
tons of the source's excess emissions'' to read ``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'';
0
f. In paragraph (e), by revising the words ``under paragraph (b) or (d)
of this section'' to read ``under paragraphs (b) and (d) of this
section) and subpart III''; and
0
g. In paragraph (f)(2), by revising the words ``of this section'' to
read ``of this section, and record such deductions and transfers''.
Sec. 96.255 [Amended]
0
47. Section 96.255 is amended, in paragraph (b), by revising the words
``Sec. 96.256, or subpart GGG'' to read ``Sec. 96.256, or subpart GGG
or III''.
Sec. 96.257 [Amended]
0
48. Section 96.257 is amended, in paragraphs (a) and (b), by revising
the words ``96.260''; to read ``Sec. Sec. 96.260 and 96.261''.
0
49. Section 96.261 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``Sec. 96.260; and'' to
read ``Sec. 96.260;'';
0
b. In paragraph (a)(2), by revising the words ``transfer.'' to read
``transfer; and''; and
0
c. By adding a new paragraph (a)(3) to read as follows:
Sec. 96.261 EPA recordation.
(a) * * *
(3) The transfer is in accordance with the limitation on transfer
under Sec. 74.42 of this chapter and Sec. 74.47(c) of this chapter,
as applicable.
* * * * *
0
50. Section 96.270 is amended as follows:
0
a. In paragraph (b) introductory text, by revising the words ``The
owner'' to read ``Except as provided in paragraph (e) of this section,
the owner'';
[[Page 25390]]
0
b. In paragraph (b)(5), by revising the words ``paragraphs (b)(1) and
(2) of this section and solely for purposes of Sec. 96.206(c)(2), for
the owner'' to read ``paragraphs (b)(1) and (2) of this section, for
the owner'';
0
c. In paragraph (c)(1), by removing the paragraph designation ``(1)''
and by revising the words ``Except as provided in paragraph (c)(2) of
this section, the owner'' to read ``The owner'' and the words
``SO2 concentration, SO2 emission rate,'' to read
``SO2 concentration,'';
0
d. By removing paragraph (c)(2);
0
e. In paragraph (d)(3), by revising the words ``the atmosphere'' to
read ``the atmosphere or heat input''; and
0
f. By adding a new paragraph (e) to read as follows:
Sec. 96.270 General requirements.
* * * * *
(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.
Sec. 96.271 [Amended]
0
51. Section 96.271 is amended by removing and reserving paragraph (c).
Sec. 96.273 [Amended]
0
52. Section 96.273 is amended by removing the words ``, except that if
the unit is not subject to an Acid Rain emissions limitation, the
notification is only required to be sent to the permitting authority''.
0
53. Section 96.274 is amended as follows:
0
a. In paragraph (d)(1)(i), by revising the words ``2009; or'' to read
``2009;'';
0
b. In paragraph (d)(1)(ii), by revising the words ``2009.'' to read
``2009;'';
0
c. By adding new paragraphs (d)(1)(iii) and (iv); and
0
d. In paragraph (d)(3), by revising the words ``or CAIR NOX
Ozone Season Trading Program,'' to read ``, CAIR NOX Ozone
Season Trading Program, or Hg Budget Trading Program,'' and by revising
the words ``subparts F through H'' to read ``subparts F through I'' and
revising to read as follows:
Sec. 96.274 Recordkeeping and reporting.
* * * * *
(d) * * *
(1) * * *
(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 III of this part, the calendar quarter
corresponding to the date specified in Sec. 96.284(b); and
(iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section,
for a CAIR SO2 opt-in unit under subpart III of this part,
the calendar quarter corresponding to the date on which the CAIR
SO2 opt-in unit enters the CAIR SO2 Trading
Program as provided in Sec. 96.284(g).
* * * * *
Sec. 96.276 [Removed]
0
54. Section 96.276 is removed.
0
55. Section 96.283 is amended as follows:
0
a. In paragraph (a)(2)(iii), by revising the words ``CAIR opt-in unit''
to read ``CAIR SO2 opt-in unit'';
0
b. By revising paragraph (a)(5);
0
c. In paragraph (b)(1), by revising the words ``or permitting
authority's'' to read ``or the permitting authority's'';
0
d. In paragraph (b)(2), by revising the words ``withdrawal of the CAIR
opt-in unit'' to read ``withdrawal of the CAIR SO2 opt-in
unit'' and revising to read as follows:
Sec. 96.283 Applying for CAIR opt-in permit.
(a) * * *
(5) A statement, in a format specified by the permitting authority,
whether the CAIR designated representative requests that the unit be
allocated CAIR SO2 allowances under Sec. 96.288(b) or Sec.
96.288(c) (subject to the conditions in Sec. Sec. 96.284(h) and
96.286(g)). If allocation under Sec. 96.288(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.
* * * * *
Sec. 96.284 [Amended]
0
56. Section 96.284 is amended as follows:
0
a. In paragraph (a), by revising the words ``heat input of the unit''
to read ``heat input of the unit and all other applicable parameters'';
0
b. In paragraph (c)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and the control periods
under paragraph (b)(2) of this section'' to read ``for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
c. In paragraph (d)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and the control periods
under paragraph (b)(2) of this section'' to read ``for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
d. In paragraph (d)(3), by revising the words ``for such control
period'' with words ``for such control periods'';
0
d. In paragraph (f), by revising the words ``CAIR SO2 opt-in
permit'' to read ``CAIR opt-in permit''; and
0
e. In paragraph (h)(2), by revising the words ``a CAIR opt-in unit'' to
read ``a CAIR SO2 opt-in unit''.
0
57. Section 96.285 is amended as follows:
0
a. In paragraph (a)(5), by revising the words ``under Sec. 96.288(c)''
to read ``Sec. 96.288(b) or Sec. 96.288(c)''; and
0
b. By adding a new paragraph (c) to read as follows:
Sec. 96.285 CAIR opt-in permit contents.
* * * * *
(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 SO2 opt-in unit is located and in a title V
operating permit or other federally enforceable permit for the source.
Sec. 96.286 [Amended]
0
58. Section 96.286 is amended as follows:
0
a. In paragraph (a), by revising the words ``CAIR opt-in unit'' to read
``CAIR SO2 opt-in unit''; and
0
b. In paragraph (b)(2), by revising the words ``equal in number to'' to
read ``equal in amount to'' and by revising the words ``Sec. 96.188''
to read ``Sec. 96.288''.
Sec. 96.287 [Amended]
0
59. Section 96.287 is amended as follows:
0
a. In paragraph (b)(1), by revising the words ``under Sec. 96.223'' to
read ``under Sec. 96.223, and remove the CAIR opt-in permit
provisions,'';
0
b. In paragraph (b)(2)(i), by revising the words ``equal in number to''
to read ``equal in amount to''; and
0
c. By removing paragraph (b)(3).
Sec. 96.288 CAIR SO2 allowance allocations to CAIR
SO2 opt-in units.
0
60. Section 96.288 is amended as follows:
0
a. By revising the heading of the section as set forth above;
0
b. In paragraph (a)(2), by revising the words ``of the control period
in which a CAIR opt-in unit'' to read ``of the control period after the
control period in which a CAIR SO2 opt-in unit'';
0
c. In paragraph (c), by revising the words ``issues a CAIR opt-in
permit'' to read ``issues a CAIR opt-in permit (based on a
demonstration of the intent to repower stated under Sec.
96.283(a)(5))''; and
0
d. In paragraph (d)(2), by revising the words ``CAIR opt-in unit'' to
read ``CAIR SO2 opt-in unit''.
0
61. Section 96.302 is amended as follows:
[[Page 25391]]
0
a. By revising the definition of ``Allocate or allocation'';
0
b. In the definition of ``Allowance transfer deadline'', by revising
the words ``midnight of November 30, if it is a business day, or, if
November 30 is not a business day, midnight of the first business day
thereafter'' to read ``midnight of November 30 (if it is a business
day), or midnight of the first business day thereafter (if November 30
is not a business day),'';
0
c. In the definition of ``Alternate CAIR designated representative'',
by adding at the end the words ``If the CAIR NOX Ozone
Season 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.''
0
d. In the definition of ``CAIR authorized account representative'', by
revising the words ``subparts BBBB and IIII'' to read ''subparts BBBB,
FFFF, and IIII'';
0
e. In the definition of ``CAIR designated representative'', by adding
at the end the words ``If the CAIR NOX Ozone Season 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.''
0
f. In the definition of ``CAIR NOX Annual Trading Program'',
by revising the words ``Sec. 51.123 of this chapter,'' to read ``Sec.
51.123 of this chapter or established by the Administrator in
accordance with subparts AA through II of part 97 of this chapter and
Sec. Sec. 51.123(p) and 52.35 of this chapter,'';
0
g. Revising the definition of ``CAIR NOX Ozone Season
allowance'';
0
h. In the definition of ``CAIR NOX Ozone Season allowance
deduction or deduct CAIR NOX Ozone Season allowances'', by
adding, after the words ``compliance account'', the words ``, e.g.,'';
0
i. In the definition of ``CAIR NOX Ozone Season emissions
limitation'', by revising the words ``tonnage equivalent of'' to read
``tonnage equivalent, in NOX emissions in a control period,
of'' and by revising the words ``for a control period'' to read ``for
the control period'';
0
j. In the definition of ``CAIR NOX Ozone Season Trading
Program'', by revising the words ``Sec. 51.123 of this chapter,'' to
read ``Sec. 51.123 of this chapter or established by the Administrator
in accordance with subparts AAAA through IIII of part 97 of this
chapter and Sec. Sec. 51.123(ee) and 52.35 of this chapter,'';
0
k. In the definition of ``CAIR NOX source'', by revising the
words ``includes one or more CAIR NOX units'' to read ``is
subject to the CAIR NOX Annual Trading Program'';
0
l. By removing the definition of ``CAIR NOX unit'';
0
m. In the definition of ``CAIR SO2 source'', by revising the
words ``includes one or more CAIR SO2 units'' to read ``is
subject to the CAIR SO2 Trading Program'';
0
n. In the definition of ``CAIR SO2 Trading Program'', by
revising the words ``Sec. 51.124 of this chapter,'' to read ``Sec.
51.124 of this chapter or established by the Administrator in
accordance with subparts AAA through III of part 97 of this chapter and
Sec. Sec. 51.124(r) and 52.36 of this chapter,'';
0
o. By removing the definition of ``CAIR SO2 unit'';
0
p. In paragraph (2) of the definition of ``Cogeneration unit'', by
revising the words ``calendar year after which'' to read ``calendar
year after the calendar year in which'';
0
q. In the definition of ``Combustion turbine'', by revising the words
``any associated heat recovery steam generator'' to read ``any
associated duct burner, heat recovery steam generator,'';
0
r. By revising the definition of ``Commence commercial operation'';
0
s. By revising the definition of ``Commence operation'';
0
t. In the definition of ``Control period'', by revising the words ``May
1 of a calendar year and'' to read ``May 1 of a calendar year, except
as provided in Sec. 96.306(c)(2), and'';
0
u. By revising the definition of ``Maximum design heat input'';
0
v. In the definition of ``Nameplate capacity'', by revising the words
``other deratings) as specified''to read ``other deratings) as of such
installation as specified'' and by revising the words ``maximum amount
as specified'' to read ``maximum amount as of such completion as
specified'';
0
w. In the definition of ``Oil-fired'', by revising the words ``in a
specified year.'' to read ``in a specified year and not qualifying as
coal-fired.'';
0
x. In the definition of ``Receive or receipt'', by revising the words
``official correspondence log'' to read ``official log'';
0
y. In the definition of ``Useful thermal energy'', by revising in
paragraph (2) the word ``heat'' with the word ``heating''; and
0
z. By adding new definitions of ``Hg Budget Trading Program'',
``Replacement, replace, or replaced'', and ``Solid waste incineration
unit'' and revising to read as follows:
Sec. 96.302 Definitions.
* * * * *
Allocate or allocation means, with regard to CAIR NOX
Ozone Season allowances, the determination by a permitting authority or
the Administrator of the amount of such CAIR NOX Ozone
Season allowances to be initially credited to a CAIR NOX
Ozone Season unit, a new unit set-aside, or other entity.
* * * * *
CAIR NOX Ozone Season allowance means a limited authorization
issued by a permitting authority or the Administrator under provisions
of a State implementation plan that are approved under Sec.
51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee) of this
chapter, or under subpart EEEE of part 97 or Sec. 97.388 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 Ozone
Season Trading Program or a limited authorization issued by a
permitting authority for a control period during 2003 through 2008
under the NOX Budget Trading Program in accordance with
Sec. 51.121(p) of this chapter to emit one ton of nitrogen oxides
during a control period, provided that the provision in Sec.
51.121(b)(2)(ii)(E) of this chapter shall not be used in applying this
definition and the limited authorization shall not have been used to
meet the allowance-holding requirement under the NOX Budget
Trading Program. An authorization to emit nitrogen oxides that is not
issued under provisions of a State implementation plan approved under
Sec. 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee) of
this chapter or subpart EEEE of part 97 or Sec. 97.388 of this chapter
or under the NOX Budget Trading Program as described in the
prior sentence shall not be a CAIR NOX Ozone Season
allowance.
* * * * *
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 Sec. 96.305 and Sec. 96.384(h).
(i) For a unit that is a CAIR NOX Ozone Season unit
under Sec. 97.304 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
[[Page 25392]]
operation of the unit, which shall continue to be treated as the same
unit.
(ii) For a unit that is a CAIR NOX Ozone Season unit
under Sec. 96.304 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 Sec. 96.305, for a unit that is not a CAIR NOX
Ozone Season unit under Sec. 96.304 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 Ozone Season unit under Sec. 96.304.
(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 Sec. 96.384(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 Sec. 96.384(h).
* * * * *
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
Sec. 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.
* * * * *
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.
* * * * *
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).
* * * * *
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.
* * * * *
0
62. Section 96.303 is revised to read as follows:
Sec. 96.303 Measurements, abbreviations, and acronyms.
Measurements, abbreviations, and acronyms used in this subpart and
subparts BBBB through IIII 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
0
63. Section 96.304 is revised to read as follows:
Sec. 96.304 Applicability.
(a) Except as provided in paragraph (b) of this section:
(1) The following units in a State shall be CAIR NOX
Ozone Season units, and any source that includes one or more such units
shall be a CAIR NOX Ozone Season source, subject to the
requirements of this subpart and subparts BBBB through HHHH 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
Ozone Season 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 Ozone Season 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 Ozone Season units:
(1)(i) Any unit that is a CAIR NOX Ozone Season 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
[[Page 25393]]
at least one calendar year, but subsequently no longer meets all such
requirements, the unit shall become a CAIR NOX Ozone Season
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 Ozone Season 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 Ozone Season 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 Ozone Season 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.
Sec. 96.305 [Amended]
0
64. Section 96.305 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``CAIR NOX
Ozone Season opt-in unit'' to read ``CAIR NOX Ozone Season
opt-in unit under subpart IIII of this part'' and by revising the words
``Sec. 96.306(c)(4) through (8), Sec. 96.307, and subparts EEEE
through GGGG'' to read ``Sec. 96.306(c)(4) through (7), Sec. 96.307,
Sec. 96.308, and subparts BBBB and EEEE through GGGG'';
0
b. In paragraph (b)(3), by revising the words ``shall retain at the
source'' to read ``shall retain, at the source''; and
0
c. In paragraph (b)(7), by revising the words ``commences operation and
commercial operation'' to read ``commences commercial operation''.
Sec. 96.306 [Amended]
0
65. Section 96.306 is amended as follows:
0
a. In paragraph (a)(1)(i), by revising the words ``in Sec. 96.321(a)
and (b)'' to read ``in Sec. 96.321'';
0
b. In paragraph (c)(2), by revising the words ``under paragraph (c)(1)
of this section'' with ``under paragraph (c)(1) of this section for the
control period'' and by revising the words ``under Sec. 96.370(b)(1),
(2), (3), or (7)'' to read ``under Sec. 96.370(b)(1), (2), (3), or (7)
and for each control period thereafter'';
0
c. In paragraph (c)(4), by revising the words ``subpart EEEE'' to read
``subparts FFFF, GGGG, and IIII'';
0
d. In paragraph (c)(7), by revising the words ``from a CAIR
NOX Ozone Season unit's compliance account'' to read ``from
a CAIR NOX Ozone Season source's compliance account'', and
by removing the words ``that includes the CAIR NOX Ozone
Season unit''; and
0
e. In paragraph (d)(1), by removing the paragraph designation ``(1)''
and by redesignating paragraph (i) as paragraph (d)(1); and
0
f. By removing paragraph (d)(2) and by redesignating paragraph (ii) as
paragraph (d)(2).
Sec. 96.311 [Amended]
0
66. In paragraph (c), by revising the words ``96.351 and 96.382'' to
read ``96.315, 96.351, and 96.382''.
Sec. 96.312 [Amended]
0
67. Section 96.312 is amended, in paragraph (c)(1), by revising the
words ``a new owner'' to read ``an owner'', by revising the words
``such new owner'' to read ``such owner'', and by revising the words
``the new owner'' to read ``the owner''.
Sec. 96.313 Amended]
0
68. Section 96.313 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``is submitted'' to read
``is submitted, including identification and nameplate capacity of each
generator served by each such unit''; and
0
b. In paragraph (a)(4)(iv), by revising the words ``where a customer''
to read ``where a utility or industrial customer''.
0
69. A new section 96.315 is added to read as follows:
Sec. 96.315 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
96.315(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 96.315(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 96.315 is terminated.''.
(d) A notice of delegation submitted under paragraph (c) of this
section shall
[[Page 25394]]
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.
Sec. 96.320 [Amended]
0
70. Section 96.320 is amended, in paragraph (a), by revising the words
``otherwise by this subpart and'' to read ``otherwise by Sec. 96.305,
this subpart, and''.
Sec. 96.321 [Amended]
0
71. Section 96.321 is amended as follows:
0
a. In paragraph (a), by revising the words ``commences operation'' to
read ``commences commercial operation, except as provided in Sec.
96.383(a)''; and
0
b. In paragraph (b), by revising the words to read ``permit renewal'',
to read ``permit renewal, except as provided in Sec. 96.383(b)''.
Sec. 96.341 [Amended]
0
72. Section 96.341 is amended as follows:
0
a. In paragraph (b)(1), removing the paragraph designation ``(1)'';
0
b. By removing paragraph (b)(2);
0
c. In paragraph (c)(1), removing the paragraph designation ((1)(; and
0
d.. By removing paragraph (c)(2).
0
73. Section 96.342 is amended as follows:
0
a. In paragraph (a)(2)(i), by revising the words ``during a calendar
year'' to read ``during a control period in a calendar year'';
0
b. In paragraph (a)(2)(ii)(C), by revising the words ``3,414 Btu/kWh''
to read ``3,413 Btu/kWh'';
0
c. By revising paragraph (c) introductory text;
0
d. In paragraph (c)(1), by revising the words ``2009 through 2013'' to
read ``2009 through 2014'' and revise the words ``in 2014'' to read
``in 2015'';
0
e. In paragraph (c)(2), by revising the words ``The CAIR NOX
Ozone Season allowance allocation request must be submitted on or
before April 1 of the first control period for which CAIR
NOX Ozone Season allowances are requested'' to read ``A
separate CAIR NOX Ozone Season allowance allocation request
for each control period for which CAIR NOX allowances are
sought must be submitted on or before February 1 of such control
period''; and
0
f. In paragraph (c)(4)(ii), by revising the words ``On or after April
1'' to read ``On or after February 1'' and revising to read as follows:
Sec. 96.342 CAIR NOX Ozone Season allowance allocations.
* * * * *
(c) For each control period in 2009 and thereafter, the permitting
authority will allocate CAIR NOX Ozone Season allowances to
CAIR NOX Ozone Season units in a State that are not
allocated CAIR NOX Ozone Season 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 Ozone Season allowances
available under paragraph (b) of this section for the control period
are already allocated, in accordance with the following procedures:
* * * * *
0
74. Section 96.351 is amended as follows:
0
a. In paragraph (b)(2) introductory text, by revising the word
``representative'' to read ``representative or alternate CAIR
authorized account representative'';
0
b. In paragraph (b)(3)(iii)(A), by revising the words ``a new person''
to read ``a person'', by revising the words ``such new person'' to read
``such person'', and by revising the words ``the new person'' to read
``the person'';
0
c. In paragraph (b)(3)(iii)(B), by revising the words ``addition of
persons'' to read ``addition of a new person'';
0
d. In paragraph (b)(4) introductory text, by revising the word
``representative'' to read ``representative or alternate CAIR
authorized account representative'';
0
e. In paragraphs (b)(4)(ii) and (iii), by revising the words
``alternative CAIR'' to read ``alternate CAIR'' whenever they appear;
and
0
f. By adding a new paragraph (b)(5) to read as follows:
Sec. 96.351 Establishment of accounts.
* * * * *
(b) * * *
(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 FFFF and GGGG 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 FFFF and GGGG 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 96.351(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
[[Page 25395]]
96.351(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 96.351(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.
* * * * *
0
75. Section 96.353 is amended as follows:
0
a. In paragraph (a), by revising the words ``By December 1, 2006,'' to
read ``By September 30, 2007,'' and revising the words ``at a source''
to read ``at the source'';
0
b. In paragraphs (b) and (d), by removing the words ``or as determined
by the Administrator''; and
0
c. By revising paragraph (c) to read as follows:
Sec. 96.353 Recordation of CAIR NOX Ozone Season allowance
allocations.
* * * * *
(c) By December 1, 2010 and December 1 of each year thereafter, the
Administrator will record in the CAIR NOX Ozone Season
source's compliance account the CAIR NOX Ozone Season
allowances allocated for the CAIR NOX Ozone Season units at
the source, as submitted by the permitting authority in accordance with
Sec. 96.341(b), for the control period in the sixth year after the
year of the applicable deadline for recordation under this paragraph.
* * * * *
Sec. 96.354 [Amended]
0
76. Section 96.354 is amended as follows:
0
a. In paragraph (a)(1), by revising the words ``prior year;'' to read
``prior year; and'';
0
b. In paragraph (a)(2), revising the words ``Sec. 96.360 by the
allowance transfer deadline for the control period; and'' to read
``Sec. Sec. 96.360 and 96.361 by the allowance transfer deadline for
the control period.'';
0
c. Removing paragraph (a)(3);
0
d. In paragraph (c)(2)(ii), by revising the words ``to any unit ''to
read ``to any entity'';
0
e. In paragraph (e), by revising the words ``under paragraph (b) or (d)
of this section'' to read ``under paragraphs (b) and (d) of this
section and subpart IIII''; and
0
f. In paragraph (f)(2), by revising the words ``of this section'' to
read ``of this section, and record such deductions and transfers''.
Sec. 96.355 [Amended]
0
77. Section 96.355 is amended, in paragraph (b), by revising the words
``Sec. 96.356, or subpart GGGG'' to read ``Sec. 96.356, or subpart
GGGG or IIII''.
Sec. 96.357 [Amended]
0
78. Section 96.357 is amended, in paragraphs (a) and (b), by revising
the words ``Sec. 96.360'' to read ``Sec. Sec. 96.360 and 96.361''.
0
79. Section 96.370 is amended as follows:
0
a. In paragraph (b) introductory text, by revising the words ``The
owner'' to read ``Except as provided in paragraph (e) of this section,
the owner'';
0
b. In paragraph (b)(2)(ii), by removing the words ``, if the compliance
date under paragraph (b)(2)(i) is before May 1, 2008'';
0
c. In paragraph (b)(3) introductory text, by revising the words
``commences operation'' to read ``commences commercial operation'';
0
d. In paragraph (b)(7), by revising the words ``paragraphs (b)(1), (2),
and (3) of this section and solely for purposes of Sec. 96.206(c)(2),
for the owner'' to read ``paragraphs (b)(1), (2), and (3) of this
section, for the owner'' and by revising the words ``CAIR
NOX Ozone Season opt-in unit'' to read ``CAIR NOX
Ozone Season opt-in unit under subpart IIII of this part'';
0
e. In paragraph (c)(1), by removing the paragraph designation ``(1)''
and by revising the words ``Except as provided in paragraph (c)(2) of
this section, the owner'' to read ``The owner'';
0
f. By removing paragraph (c)(2);
0
g. In paragraph (d)(3), by revising the words ``the atmosphere'' to
read ``the atmosphere or heat input''; and
0
h. By adding a new paragraph (e) to read as follows:
Sec. 96.370 General Requirements.
* * * * *
(e) Long-term cold storage. The owner or operator of a CAIR
NOX Ozone Season unit is subject to the applicable
provisions of part 75 of this chapter concerning units in long-term
cold storage.
Sec. 96.371 [Amended]
0
80. Section 96.371 is amended, in paragraph (c), by revising the words
``Sec. 75.12, Sec. 75.17, or subpart H of part 75'' to read ``Sec.
75.12 or Sec. 75.17''.
Sec. 96.373 [Amended]
0
81. Section 96.373 is amended by removing the words ``, except that if
the unit is not subject to an Acid Rain emissions limitation, the
notification is only required to be sent to the permitting authority''.
0
82. Section 96.374 is amended as follows:
0
a. In paragraph (d)(1)(i), by revising the words ``2008; or'' to read
``2008;'';
0
b. In paragraph (d)(1)(ii), by revising the words ``2008.'' to read
``2008;'' and by revising the words ``fourth quarter of 2007'' to read
``fourth quarter of 2007 or the first quarter of 2008'';
0
c. In paragraph (d)(2)(ii)(B), by revising the words ``such date.'' to
read ``such date;''; and
0
d. By adding new paragraphs (d)(1)(iii) and (iv) and (d)(2)(ii)(C) and
(D);
0
e. By renumbering the second paragraph (d)(2) and the second paragraph
(d)(3) as paragraphs (d)(3) and (d)(4) respectively and, in paragraph
(d)(4), by revising the words ``or CAIR SO2 Trading
Program,'' to read ``, CAIR SO2 Trading Program, or Hg
Budget Trading Program,'' and by revising the words ``subparts F
through H'' to read ``subparts F through I'' and revising to read as
follows:
Sec. 96.374 Recordkeeping and reporting.
* * * * *
(d) * * *
(1) * * *
(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 IIII of this part, the calendar quarter
corresponding to the date specified in Sec. 96.384(b); and
(iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section,
for a CAIR NOX Ozone Season opt-in unit under subpart IIII
of this part, the calendar quarter corresponding to the date on which
the CAIR NOX Ozone Season opt-in unit enters the CAIR
NOX
[[Page 25396]]
Ozone Season Trading Program as provided in Sec. 96.384(g).
(2) * * *
(ii) * * *
(C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) 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 IIII of this part, the calendar quarter
corresponding to the date specified in Sec. 96.384(b); and
(D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this
section, for a CAIR NOX Ozone Season opt-in unit under
subpart IIII of this part, the calendar quarter corresponding to the
date on which the CAIR NOX Ozone Season opt-in unit enters
the CAIR NOX Ozone Season Trading Program as provided in
Sec. 96.384(g).
* * * * *
Sec. 96.376 [Removed]
0
83. Section 96.376 is removed.
0
84. Section 96.383 is amended as follows:
0
a. By revising paragraph (a)(5); and
0
b. In paragraph (b)(2), by revising the words ``CAIR opt-in unit'' to
read ``CAIR NOX Ozone Season opt-in unit'', by revising the
words ``Annual Trading Program'' to read ``Ozone Season Trading
Program'', by revising the words ``CAIR NOX unit'' to read
``CAIR NOX Ozone Season unit'', and by revising the words
``CAIR NOX opt-in unit'' to read ``CAIR NOX Ozone
Season opt-in unit'' whenever they appear and revising to read as
follows:
Sec. 96.383 Applying for CAIR opt-in permit.
(a) * * *
(5) A statement, in a format specified by the permitting authority,
whether the CAIR designated representative requests that the unit be
allocated CAIR NOX Ozone Season allowances under Sec.
96.388(b) or Sec. 96.388(c) (subject to the conditions in Sec. Sec.
96.384(h) and 96.386(g)). If allocation under Sec. 96.388(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.
* * * * *
Sec. 96.384 [Amended]
0
85. Section 96.384 is amended as follows:
0
a. In paragraph (b), by revising the words ``heat input of the unit
emissions rate and the heat input of the unit'' to read ``heat input of
the unit'';
0
b. In paragraph (c)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and for the control periods
under paragraph (b)(2) of this section'' to read ``for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
c. In paragraph (d)(2), by revising the words ``for the control period
under paragraph (b)(1)(ii) of this section and the control periods
under paragraph (b)(2) of this section'' to read ``for the control
periods under paragraphs (b)(1)(ii) and (2) of this section'';
0
d. In paragraph (d)(3), by revising the words ``for such control
period'' to read ``for such control periods'';
0
e. In paragraph (h)(2), revising the words ``a CAIR opt-in unit'' to
read ``a CAIR NOX Ozone Season opt-in unit.''
0
86. Section 96.385 is amended as follows:
0
a. In paragraph (a)(5), by revising the words ``under Sec. 96.388(c)''
to read ``Sec. 96.388(b) or Sec. 96.388(c)''; and
0
b. By adding a new paragraph (c) to read as follows:
Sec. 96.385 CAIR opt-in permit contents.
* * * * *
(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 Ozone Season opt-in unit is located and in a
title V operating permit or other federally enforceable permit for the
source.
Sec. 96.386 [Amended]
0
87. Section 96.386 is amended as follows:
0
a. In paragraph (a), by revising the words ``CAIR opt-in unit'' to read
``CAIR NOX Ozone Season opt-on unit'';
0
b. In paragraph (b)(2), by replacing the words ``equal in number to''
to read ``equal in amount to''; and
0
c. In paragraphs (c)(2) and (g), by revising the words ``CAIR
NOX opt-in unit'' to read ``CAIR NOX Ozone Season
opt-in unit''.
0
88. Section 96.387 is amended as follows:
0
a. In paragraph (b)(1), by revising the words ``under Sec. 96.323'' to
read ``under Sec. 96.323, and remove the CAIR opt-in permit
provisions,'';
0
b. In paragraph (b)(2)(i), by revising the words ``equal in number to''
to read ``equal in amount to'';
0
c. By revising paragraph (b)(3)(i);
0
d. In paragraph (b)(3)(ii), by revising the words ``Notwithstanding
paragraph (b)(3)(i) of this section if,'' to read ``If'', by revising
the words ``May 1'' to read ``September 30'', and by revising the words
``number of CAIR NOX Ozone Season allowances'' to read
``amount of CAIR NOX Ozone Season allowances''; and
0
e. In paragraph (b)(3)(ii)(A), by revising the words ``number of CAIR
NOX Ozone Season allowances'' to read ``amount of CAIR
NOX Ozone Season allowances'' and revising to read as
follows:
Sec. 96.387 Change in regulatory status.
* * * * *
(b) * * *
(3)(i) For every control period after the date on which the CAIR
NOX Ozone Season opt-in unit becomes a CAIR NOX
Ozone Season unit under Sec. 96.304, the CAIR NOX Ozone
Season opt-in unit will be allocated CAIR NOX Ozone Season
allowances under Sec. 96.342.
* * * * *
Sec. 96.388 CAIR NOX Ozone Season allowance allocations
to CAIR NOX Ozone Season opt-in units.
0
89. Section 96.388 is amended as follows:
0
a. By revising the heading of the section as set forth above;
0
b. In paragraph (a)(2), by revising the words ``of the control period
in which'' to read ``of the control period after the control period in
which'', by revising the words ``CAIR opt-in unit'' to read ``CAIR
NOX Ozone Season opt-in unit'', and by revising the words
``CAIR NOX opt-in unit'' to read ``CAIR NOX Ozone
Season opt-in unit'';
0
c. In paragraph (c), by revising the words ``issues a CAIR opt-in
permit'' to read ``issues a CAIR opt-in permit'' (based on a
demonstration of the intent to repower stated under Sec.
96.383(a)(5)); and
0
d. In paragraph (d)(2), by revising the words ``CAIR opt-in unit'' to
read ``CAIR NOX Ozone Season opt-in unit.''
PART 97--FEDERAL NOX BUDGET TRADING PROGRAM AND CAIR
NOX AND SO2 TRADING PROGRAMS
0
1. The heading of part 97 is revised to read as set forth above.
0
2. The authority citation for part 97 is revised to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7426, 7601, and 7651, et
seq.
0
3. Part 97 is amended by adding subparts AA through II, to read as
follows:
Subpart AA--CAIR NOX Annual Trading Program General
Provisions
Sec.
97.101 Purpose.
97.102 Definitions.
97.103 Measurements, abbreviations, and acronyms.
97.104 Applicability.
97.105 Retired unit exemption.
[[Page 25397]]
97.106 Standard requirements.
97.107 Computation of time.
97.108 Appeal procedures.
Subpart BB--CAIR Designated Representative for CAIR NOX
Sources
97.110 Authorization and responsibilities of CAIR designated
representative.
97.111 Alternate CAIR designated representative.
97.112 Changing CAIR designated representative and alternate CAIR
designated representative; changes in owners and operators.
97.113 Certificate of representation.
97.114 Objections concerning CAIR designated representative.
97.115 Delegation by CAIR designated representative and alternate
CAIR designated representative.
Subpart CC--Permits
97.120 General CAIR NOX Annual Trading Program permit
requirements.
97.121 Submission of CAIR permit applications.
97.122 Information requirements for CAIR permit applications.
97.123 CAIR permit contents and term.
97.124 CAIR permit revisions.
Subpart DD--[Reserved]
Subpart EE--CAIR NOX Allowance Allocations
97.140 State trading budgets.
97.141 Timing requirements for CAIR NOX allowance
allocations.
97.142 CAIR NOX allowance allocations.
97.143 Compliance supplement pool.
97.144 Alternative of allocation of CAIR NOX allowances
and compliance supplement pool by permitting authority.
Appendix A to Subpart EE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations
Subpart FF-- CAIR NOX Allowance Tracking System
97.150 [Reserved]
97.151 Establishment of accounts.
97.152 Responsibilities of CAIR authorized account representative.
97.153 Recordation of CAIR NOX allowance allocations.
97.154 Compliance with CAIR NOX emissions limitation.
97.155 Banking.
97.156 Account error.
97.157 Closing of general accounts.
Subpart GG--CAIR NOX Allowance Transfers
97.160 Submission of CAIR NOX allowance transfers.
97.161 EPA recordation.
97.162 Notification.
Subpart HH--Monitoring and Reporting
97.170 General requirements.
97.171 Initial certification and recertification procedures.
97.172 Out of control periods.
97.173 Notifications.
97.174 Recordkeeping and reporting.
97.175 Petitions.
Subpart II--CAIR NOX Opt-in Units
97.180 Applicability.
97.181 General.
97.182 CAIR designated representative.
97.183 Applying for CAIR opt-in permit.
97.184 Opt-in process.
97.185 CAIR opt-in permit contents.
97.186 Withdrawal from CAIR NOX Annual Trading Program.
97.187 Change in regulatory status.
97.188 CAIR NOX allowance allocations to CAIR
NOX opt-in units.
Appendix A to Subpart II of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR NOX Opt-in
Units
Subpart AA--CAIR NOX Annual Trading Program General
Provisions
Sec. 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 Sec. 52.35 of this chapter, as a means of
mitigating interstate transport of fine particulates and nitrogen
oxides.
Sec. 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 Sec. 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 Sec. 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.
[[Page 25398]]
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 Sec. 97.188, or under provisions of a State implementation plan
that are approved under Sec. 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, Sec. 97.188, or provisions of a State
implementation plan that are approved under Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 51.123(ee) and 52.35 of this chapter or
approved and administered by the Administrator in accordance with under
subparts AAAA through IIII and Sec. 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 Sec. 97.104 and, except
for purposes of Sec. 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 Sec. Sec. 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 Sec. 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:
[[Page 25399]]
(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.
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 Sec. 97.105 and Sec. 97.184(h).
(i) For a unit that is a CAIR NOX unit under Sec.
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 Sec.
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 Sec. 97.105, for a unit that is not a CAIR NOX
unit under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 25400]]
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 Sec. 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 Sec. 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
Sec. 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
[[Page 25401]]
(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 in accordance with
subpart CC of this part 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 Sec. 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
Sec. 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.
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
[[Page 25402]]
owned or operated by a utility and dedicated to delivering electricity
to customers.
Sec. 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
Sec. 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.
Sec. 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, Sec. Sec. 97.102, 97.103,
97.104, 97.106(c)(4) through (7),
[[Page 25403]]
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 Sec. 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.
Sec. 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 Sec. 97.122 in accordance with the deadlines
specified in Sec. 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 Sec. 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 Sec. 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 Sec. 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,
[[Page 25404]]
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 Sec.
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 Sec. 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 Sec. 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 Sec. 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.
Sec. 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.
Sec. 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.
Subpart BB--CAIR Designated Representative for CAIR NOX
Sources
Sec. 97.110 Authorization and responsibilities of CAIR designated
representative.
(a) Except as provided under Sec. 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 Sec.
97.113(a)(4)(iv).
(c) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 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 Sec. 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
[[Page 25405]]
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.
Sec. 97.111 Alternate CAIR designated representative.
(a) A certificate of representation under Sec. 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 Sec. 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 Sec. Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
97.113 amending the list of owners and operators to include the change.
Sec. 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
[[Page 25406]]
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.
Sec. 97.114 Objections concerning CAIR designated representative.
(a) Once a complete certificate of representation under Sec.
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
Sec. 97.113 is received by the Administrator.
(b) Except as provided in Sec. 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.
Sec. 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.
Subpart CC--Permits
Sec. 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 Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 97.183(b).
[[Page 25407]]
Sec. 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 Sec. 97.106.
Sec. 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 Sec. 97.122.
(b) Each CAIR permit is deemed to incorporate automatically the
definitions of terms under Sec. 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.
Sec. 97.124 CAIR permit revisions.
Except as provided in Sec. 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.
Subpart DD--[Reserved]
Subpart EE--CAIR NOX Allowance Allocations
Sec. 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:
------------------------------------------------------------------------
State trading
State trading budget for
State budget for 2015 and
2009-2014 thereafter
(tons) (tons)
------------------------------------------------------------------------
Alabama................................. 69,020 57,517
Delaware................................ 4,166 3,472
District of Columbia.................... 144 120
Florida................................. 99,445 82,871
Georgia................................. 66,321 55,268
Illinois................................ 76,230 63,525
Indiana................................. 108,935 90,779
Iowa.................................... 32,692 27,243
Kentucky................................ 83,205 69,337
Louisiana............................... 35,512 29,593
Maryland................................ 27,724 23,104
Michigan................................ 65,304 54,420
Minnesota............................... 31,443 26,203
Mississippi............................. 17,807 14,839
Missouri................................ 59,871 49,892
New Jersey.............................. 12,670 10,558
New York................................ 45,617 38,014
North Carolina.......................... 62,183 51,819
Ohio.................................... 108,667 90,556
Pennsylvania............................ 99,049 82,541
South Carolina.......................... 32,662 27,219
Tennessee............................... 50,973 42,478
Texas................................... 181,014 150,845
Virginia................................ 36,074 30,062
West Virginia........................... 74,220 61,850
Wisconsin............................... 40,759 33,966
-------------------------------
Total............................... 1,521,707 1,268,091
------------------------------------------------------------------------
Sec. 97.141 Timing requirements for CAIR NOX allowance
allocations.
(a) The Administrator will determine by order the CAIR
NOX allowance allocations, in accordance with Sec.
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 Sec. 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 Sec. 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
Sec. 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 Sec. 97.142.
[[Page 25408]]
Sec. 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
Sec. 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 Sec. 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
[[Page 25409]]
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 Sec. 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 Sec. 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 Sec. 97.153.
(2) If the Administrator already recorded such CAIR NOX
allowances under Sec. 97.153 and if the Administrator makes such
determination before making deductions for the source that includes
such recipient under Sec. 97.154(b) for the control period, then the
Administrator will deduct from the account in which such CAIR
NOX allowances were recorded under Sec. 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 Sec. 97.153 and if the Administrator makes such
determination after making deductions for the source that includes such
recipient under Sec. 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.
Sec. 97.143 Compliance supplement pool.
(a) In addition to the CAIR NOX allowances allocated
under Sec. 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:
------------------------------------------------------------------------
Compliance
State supplement pool
------------------------------------------------------------------------
Alabama............................................... 10,166
Delaware.............................................. 843
District of Columbia.................................. 0
Florida............................................... 8,335
Georgia............................................... 12,397
Illinois.............................................. 11,299
Indiana............................................... 20,155
Iowa.................................................. 6,978
Kentucky.............................................. 14,935
Louisiana............................................. 2,251
Maryland.............................................. 4,670
Michigan.............................................. 8,347
Minnesota............................................. 6,528
Mississippi........................................... 3,066
Missouri.............................................. 9,044
New Jersey............................................ 660
New York.............................................. 0
North Carolina........................................ 0
Ohio.................................................. 25,037
Pennsylvania.......................................... 16,009
South Carolina........................................ 2,600
Tennessee............................................. 8,944
Texas................................................. 772
Virginia.............................................. 5,134
West Virginia......................................... 16,929
Wisconsin............................................. 4,898
-----------------
Total............................................. 199,997
------------------------------------------------------------------------
(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 Sec. 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
[[Page 25410]]
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 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 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 x (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.
Sec. 97.144 Alternative of allocation of CAIR NOX
allowances and compliance supplement pool by permitting authority.
(a) Notwithstanding Sec. Sec. 97.141, 97.142, and 97.153 if a
State submits, and the Administrator approves, a State implementation
plan revision in accordance with Sec. 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 Sec. Sec.
97.141 and 97.142 for the CAIR NOX units in the State, and
under Sec. 97.153, the Administrator will record the allocations made
under such approved State implementation plan revision instead of
allocations made under Sec. Sec. 97.141 and 97.142.
(b) Notwithstanding Sec. 97.143, if a State submits, and the
Administrator approves, a State implementation plan revision in
accordance with Sec. 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 Sec. 97.143(d)(4) for
the CAIR NOX units in the State, and under Sec.
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 Sec.
97.143(d)(4).
(c)(1) In implementing paragraph (a) of this section and Sec. Sec.
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 Sec. 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 Sec. 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
Sec. 51.123(p)(2), for CAIR NOX sources in the State will
not exceed the State(s compliance supplement pool.
[[Page 25411]]
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 Sec. 51.123(p)(1) of this chapter approved by the
Administrator and providing for allocation of CAIR NOX
allowances by the permitting authority under Sec. 97.144(a):
[Reserved]
2. The following States have State Implementation Plan revisions
under Sec. 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 Sec. 97.144(b):
[Reserved]
Subpart FF--CAIR NOX Allowance Tracking System
Sec. 97.150 [Reserved]
Sec. 97.151 Establishment of accounts.
(a) Compliance accounts. Except as provided in Sec. 97.184(e),
upon receipt of a complete certificate of representation under Sec.
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
[[Page 25412]]
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.
Sec. 97.152 Responsibilities of CAIR authorized account
representative.
Following the establishment of a CAIR NOX Allowance
Tracking System account, all submissions to the
[[Page 25413]]
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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec.
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.
Sec. 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 Sec. Sec. 97.160 and 97.161 by the allowance
transfer deadline for the control period.
(b) Deductions for compliance. Following the recordation, in
accordance with Sec. 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.
Sec. 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 Sec. 97.142, Sec. 97.154, Sec. 97.156, or subpart GG or II of
this part.
[[Page 25414]]
Sec. 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.
Sec. 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 Sec. Sec.
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
Sec. Sec. 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.
Subpart GG--CAIR NOX Allowance Transfers
Sec. 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.
Sec. 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 Sec. 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
Sec. 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.
Sec. 97.162 Notification.
(a) Notification of recordation. Within 5 business days of
recordation of a CAIR NOX allowance transfer under Sec.
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 Sec. 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.
Subpart HH--Monitoring and Reporting
Sec. 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
Sec. 97.102 and in Sec. 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 Sec. 97.102. The owner or operator of a unit that is not
a CAIR NOX unit but that is monitored under Sec.
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 (Sec. Sec. 75.71 and
75.72 of this chapter);
(2) Successfully complete all certification tests required under
Sec. 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
[[Page 25415]]
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 Sec. 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 Sec. 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 Sec.
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 Sec.
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 Sec. 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
Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 75.17(a) or (b) of this chapter for apportioning the
NOX emission rate measured in a common stack or a petition
under Sec. 75.66 of this chapter for an alternative to a requirement
in Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated
representative shall resubmit the petition to the Administrator under
Sec. 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 Sec. 97.170(a)(1). The owner or
operator of a unit that qualifies to use the low mass emissions
excepted monitoring methodology under Sec. 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 Sec.
97.170(a)(1) (including the automated data acquisition and handling
system) successfully completes all of the initial certification testing
required under Sec. 75.20 of this chapter by the applicable deadline
in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 75.20(b)
of this chapter. Examples of changes to a continuous emission
monitoring system that require recertification include
[[Page 25416]]
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 Sec. 97.170(a)(1) are subject to the
recertification requirements in Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 75.63 of this chapter.
(iii) Provisional certification date. The provisional certification
date for a monitoring system shall be determined in accordance with
Sec. 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 Sec. 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
Sec. 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 Sec.
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter
and continuing until the applicable date and hour specified under Sec.
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 Sec. 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 Sec. 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 Sec. 75.19 of
this chapter. The owner or operator of a unit qualified to use the low
mass emissions
[[Page 25417]]
(LME) excepted methodology under Sec. 75.19 of this chapter shall meet
the applicable certification and recertification requirements in
Sec. Sec. 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 Sec. 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 Sec. 75.20(f) of this chapter.
Sec. 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 Sec. 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 Sec.
97.171 for each disapproved monitoring system.
Sec. 97.173 Notifications.
The CAIR designated representative for a CAIR NOX unit
shall submit written notice to the Administrator in accordance with
Sec. 75.61 of this chapter.
Sec. 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
Sec. 75.73 of this chapter, and the requirements of Sec.
97.110(e)(1).
(b) Monitoring plans. The owner or operator of a CAIR
NOX unit shall comply with requirements of Sec. 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, Sec. Sec.
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 Sec. 97.171, including the information required under Sec.
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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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.
Sec. 97.175 Petitions.
The CAIR designated representative of a CAIR NOX unit
may submit a petition under Sec. 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
[[Page 25418]]
subpart only to the extent that the petition is approved in writing by
the Administrator, in consultation with the permitting authority.
Subpart II--CAIR NOX Opt-In Units
Sec. 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 Sec. 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 Sec. 97.104 and is not
covered by a retired unit exemption under Sec. 97.105 that is in
effect;
(c) Is not covered by a retired unit exemption under Sec. 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.
Sec. 97.181 General.
(a) Except as otherwise provided in Sec. Sec. 97.101 through
97.104, Sec. Sec. 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.
Sec. 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.
Sec. 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 Sec. 97.180 may apply for an initial
CAIR opt-in permit at any time, except as provided under Sec.
97.186(f) and (g), and, in order to apply, must submit the following:
(1) A complete CAIR permit application under Sec. 97.122;
(2) A certification, in a format specified by the permitting
authority, that the unit:
(i) Is not a CAIR NOX unit under Sec. 97.104 and is not
covered by a retired unit exemption under Sec. 97.105 that is in
effect;
(ii) Is not covered by a retired unit exemption under Sec. 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 Sec. 97.122;
(3) A monitoring plan in accordance with subpart HH of this part;
(4) A complete certificate of representation under Sec. 97.113
consistent with Sec. 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 Sec. 97.188(b) or Sec.
97.188(c) (subject to the conditions in Sec. Sec. 97.184(h) and
97.186(g)), to the extent such allocation is provided in a State
implementation plan revision submitted in accordance with Sec.
51.123(p)(3)(i), (ii), or (iii) of this chapter and approved by the
Administrator. If allocation under Sec. 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 Sec. 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 Sec.
97.186 or the unit becomes a CAIR NOX unit under Sec.
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.
Sec. 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 Sec. 97.183 is submitted in accordance with the following, to
the extent provided in a State implementation plan revision submitted
in accordance with Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 25419]]
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 Sec. 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 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 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 Sec. 97.180 and meets the elements certified in Sec. 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 Sec. 97.180 or meets the elements certified in Sec. 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 Sec. 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.
Sec. 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 Sec. 97.122;
(2) The certification in Sec. 97.183(a)(2);
(3) The unit's baseline heat input under Sec. 97.184(c);
(4) The unit's baseline NOX emission rate under Sec.
97.184(d);
(5) A statement whether the unit is to be allocated CAIR
NOX allowances under Sec. 97.188(b) or Sec. 97.188(c)
(subject to the conditions in Sec. Sec. 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 Sec.
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 Sec.
97.187.
(b) Each CAIR opt-in permit is deemed to incorporate automatically
the definitions of terms under Sec. 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.
Sec. 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
[[Page 25420]]
Program under Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 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 Sec. 97.188(c).
Sec. 97.187 Change in regulatory status.
(a) Notification. If a CAIR NOX opt-in unit becomes a
CAIR NOX unit under Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 97.188 for any control period
after the date on which the CAIR NOX opt-in unit becomes a
CAIR NOX unit under Sec. 97.104; and
(B) If the date on which the CAIR NOX opt-in unit
becomes a CAIR NOX unit under Sec. 97.104 is not December
31, the CAIR NOX allowances allocated to the CAIR
NOX opt-in unit under Sec. 97.188 for the control period
that includes the date on which the CAIR NOX opt-in unit
becomes a CAIR NOX unit under Sec. 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 Sec. 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
unit that becomes a CAIR NOX unit under Sec. 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
Sec. 97.104, the CAIR NOX opt-in unit will be allocated
CAIR NOX allowances under Sec. 97.142.
(ii) If the date on which the CAIR NOX opt-in unit
becomes a CAIR NOX unit under Sec. 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 Sec. 97.104:
(A) The amount of CAIR NOX allowances otherwise
allocated to the CAIR NOX opt-in unit (as a CAIR
NOX unit) under Sec. 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 Sec. 97.104, divided by the
total number of days in the control period; and
[[Page 25421]]
(C) Rounded to the nearest whole allowance as appropriate.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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 Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 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 Sec.
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 Sec. 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 Sec. 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 Sec. 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.
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 Sec. 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
Sec. 97.188(b):
[Reserved]
2. The following States have State Implementation Plan revisions
under Sec. 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
[[Page 25422]]
NOX allowances to such units under Sec. 97.188(c):
[Reserved]
0
4. Part 97 is amended by adding subparts AAA through CCC, adding and
reserving subparts DDD and EEE and adding subparts FFF through III to
read as follows:
Subpart AAA--CAIR SO2 Trading Program General Provisions
Sec.
97.201 Purpose.
97.202 Definitions.
97.203 Measurements, abbreviations, and acronyms.
97.204 Applicability.
97.205 Retired unit exemption.
97.206 Standard requirements.
97.207 Computation of time.
97.208 Appeal procedures.
Subpart BBB--CAIR Designated Representative for CAIR SO2 Sources
97.210 Authorization and responsibilities of CAIR designated
representative.
97.211 Alternate CAIR designated representative.
97.212 Changing CAIR designated representative and alternate CAIR
designated representative; changes in owners and operators.
97.213 Certificate of representation.
97.214 Objections concerning CAIR designated representative.
97.215 Delegation by CAIR designated representative and alternate
CAIR designated representative.
Subpart CCC--Permits
97.220 General CAIR SO2 Trading Program permit
requirements.
97.221 Submission of CAIR permit applications.
97.222 Information requirements for CAIR permit applications.
97.223 CAIR permit contents and term.
97.224 CAIR permit revisions.
Subpart DDD--[Reserved]
Subpart EEE--[Reserved]
Subpart FFF--CAIR SO2 Allowance Tracking System
97.250 [Reserved]
97.251 Establishment of accounts.
97.252 Responsibilities of CAIR authorized account representative.
97.253 Recordation of CAIR SO2 allowances.
97.254 Compliance with CAIR SO2 emissions limitation.
97.255 Banking.
97.256 Account error.
97.257 Closing of general accounts.
Subpart GGG--CAIR SO2 Allowance Transfers
97.260 Submission of CAIR SO2 allowance transfers.
97.261 EPA recordation.
97.262 Notification.
Subpart HHH--Monitoring and Reporting
97.270 General requirements.
97.271 Initial certification and recertification procedures.
97.272 Out of control periods.
97.273 Notifications.
97.274 Recordkeeping and reporting.
97.275 Petitions.
Subpart III--CAIR SO2 Opt-in Units
97.280 Applicability.
97.281 General.
97.282 CAIR designated representative.
97.283 Applying for CAIR opt-in permit.
97.284 Opt-in process.
97.285 CAIR opt-in permit contents.
97.286 Withdrawal from CAIR SO2 Trading Program.
97.287 Change in regulatory status.
97.288 CAIR SO2 allowance allocations to CAIR
SO2 opt-in units.
Appendix A to Subpart III of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR SO2 Opt-In
Units
Subpart AAA--CAIR SO2 Trading Program General Provisions
Sec. 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 Sec. 52.36 of this chapter, as a means of mitigating
interstate transport of fine particulates and sulfur dioxide.
Sec. 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 Sec.
97.288 or provisions of a State implementation plan that are approved
under Sec. 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 Sec. 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.
Boiler means an enclosed fossil- or other-fuel-fired combustion
device used
[[Page 25423]]
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 (Sec. 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 Sec. 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 (Sec. 51.123(ee) and 52.35 of this chapter or approved
and administered by the Administrator in accordance with under subparts
AAAA through IIII and Sec. 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 Sec. 97.288, or by a permitting authority under provisions of a
State implementation plan that are approved under Sec. 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 Sec. 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 Sec. 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 Sec. 97.254(b).
(4) An authorization to emit sulfur dioxide that is not issued
under the Acid Rain Program, Sec. 97.288, or provisions of a State
implementation plan that are approved under Sec. 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
Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 97.204 and, except for
purposes of Sec. 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
[[Page 25424]]
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.
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 Sec. 97.205 and Sec. 97.284(h).
(i) For a unit that is a CAIR SO2 unit under Sec.
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 Sec.
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 Sec. 97.205, for a unit that is not a CAIR SO2
unit under Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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);
[[Page 25425]]
(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 Sec. 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 Sec. 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
Sec. 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
[[Page 25426]]
agency authorized by the Administrator to issue or revise permits to
meet the requirements of the CAIR SO2 Trading Program in
accordance with subpart CCC of this part 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 Sec. 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 Sec.
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.
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.
Sec. 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.
[[Page 25427]]
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.
Sec. 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.
Sec. 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, Sec. Sec. 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
[[Page 25428]]
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 Sec. 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.
Sec. 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 Sec. 97.222 in accordance with the deadlines
specified in Sec. 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
Sec. 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 Sec. 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 Sec.
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 Sec.
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
[[Page 25429]]
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 Sec. 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 Sec. 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 Sec. 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.
Sec. 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.
Sec. 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.
Subpart BBB--CAIR Designated Representative for CAIR SO2
Sources
Sec. 97.210 Authorization and responsibilities of CAIR designated
representative.
(a) Except as provided under Sec. 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 Sec.
97.213(a)(4)(iv).
(c) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 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 Sec. 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.
Sec. 97.211 Alternate CAIR designated representative.
(a) A certificate of representation under Sec. 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
[[Page 25430]]
designated representative to act in lieu of the CAIR designated
representative.
(b) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 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 Sec. Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
97.213 amending the list of owners and operators to include the change.
Sec. 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.
Sec. 97.214 Objections concerning CAIR designated representative.
(a) Once a complete certificate of representation under Sec.
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
Sec. 97.213 is received by the Administrator.
(b) Except as provided in Sec. 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
[[Page 25431]]
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.
Sec. 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.
Subpart CCC--Permits
Sec. 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 Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 97.283(b).
Sec. 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 Sec. 97.206.
Sec. 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 Sec. 97.222.
(b) Each CAIR permit is deemed to incorporate automatically the
definitions of terms under Sec. 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
[[Page 25432]]
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.
Sec. 97.224 CAIR permit revisions.
Except as provided in Sec. 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.
Subpart DDD--[Reserved]
Subpart EEE--[Reserved]
Subpart FFF--CAIR SO2 Allowance Tracking System
Sec. 97.250 [Reserved]
Sec. 97.251 Establishment of accounts.
(a) Compliance accounts. Except as provided in Sec. 97.284(e),
upon receipt of a complete certificate of representation under Sec.
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
[[Page 25433]]
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.
[[Page 25434]]
Sec. 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.
Sec. 97.253 Recordation of CAIR SO2 allowances.
(a)(1) After a compliance account is established under Sec.
97.251(a) or Sec. 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 Sec. 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 Sec. 97.251(b)
or Sec. 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 Sec. 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 Sec. 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.
Sec. 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 Sec. Sec. 97.260 and 97.261 by the allowance
transfer deadline for the control period.
(b) Deductions for compliance. Following the recordation, in
accordance with Sec. 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 Sec. 97.288, that is required under Sec. Sec.
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 Sec. Sec. 73.35(b)
and (c) of this chapter.
(ii) Deduct the amount of CAIR SO2 allowances, not
issued by a permitting authority under Sec. 97.288, that is required
under Sec. Sec. 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
Sec. Sec. 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 Sec. 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 Sec. 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 Sec. 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
Sec. 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
[[Page 25435]]
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 Sec. 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.
Sec. 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 Sec. 97.254, Sec. 97.256, or subpart GGG or III of this part.
Sec. 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.
Sec. 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 Sec. Sec.
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
Sec. Sec. 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.
Subpart GGG--CAIR SO2 Allowance Transfers
Sec. 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
[[Page 25436]]
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.''
Sec. 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 Sec. 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 Sec. 74.42 of this chapter and Sec. 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
Sec. 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.
Sec. 97.262 Notification.
(a) Notification of recordation. Within 5 business days of
recordation of a CAIR SO2 allowance transfer under Sec.
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 Sec. 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.
Subpart HHH--Monitoring and Reporting
Sec. 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 Sec. 97.202 and in Sec. 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 Sec. 97.202. The owner or operator of a unit that is not
a CAIR SO2 unit but that is monitored under Sec.
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 Sec. Sec. 75.11 and 75.16 of this
chapter);
(2) Successfully complete all certification tests required under
Sec. 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 Sec. 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 Sec. 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 Sec. 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
[[Page 25437]]
prior written approval in accordance with Sec. 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 Sec. 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
Sec. 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.
Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 97.270(a)(1). The owner or operator of a unit
that qualifies to use the low mass emissions excepted monitoring
methodology under Sec. 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 Sec.
97.270(a)(1) (including the automated data acquisition and handling
system) successfully completes all of the initial certification testing
required under Sec. 75.20 of this chapter by the applicable deadline
in Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec.
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 Sec. 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 Sec. 97.270(a)(1) is
subject to the recertification requirements in Sec. 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 Sec. 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 Sec. Sec. 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 Sec. 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 Sec. 75.63 of this chapter.
(iii) Provisional certification date. The provisional certification
date for a monitoring system shall be determined in accordance with
Sec. 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.
[[Page 25438]]
(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 Sec. 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
Sec. 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 Sec.
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter
and continuing until the applicable date and hour specified under Sec.
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 Sec. 75.19 of
this chapter. The owner or operator of a unit qualified to use the low
mass emissions (LME) excepted methodology under Sec. 75.19 of this
chapter shall meet the applicable certification and recertification
requirements in Sec. Sec. 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 Sec.
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 Sec. 75.20(f) of this chapter.
Sec. 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 Sec. 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 Sec.
97.271 for each disapproved monitoring system.
[[Page 25439]]
Sec. 97.273 Notifications.
The CAIR designated representative for a CAIR SO2 unit
shall submit written notice to the Administrator in accordance with
Sec. 75.61 of this chapter. Sec. 97.274 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 in
subparts F and G of part 75 of this chapter, and the requirements of
Sec. 97.210(e)(1).
(b) Monitoring Plans. The owner or operator of a CAIR
SO2 unit shall comply with requirements of Sec. 75.62 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 III of this part, Sec. Sec. 97.283 and
97.284(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 Sec. 97.271, including the information required under Sec.
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
SO2 mass emissions data and heat input data for the CAIR
SO2 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,
2008, the calendar quarter covering January 1, 2009 through March 31,
2009;
(ii) For a unit that commences commercial operation on or after
July 1, 2008, the calendar quarter corresponding to the earlier of the
date of provisional certification or the applicable deadline for
initial certification under Sec. 97.270(b), unless that quarter is the
third or fourth quarter of 2008, in which case reporting shall commence
in the quarter covering January 1, 2009 through March 31, 2009;
(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 III of this part, the calendar quarter
corresponding to the date specified in Sec. 97.284(b); and
(iv) Notwithstanding paragraphs (d)(1)(i) and (ii) of this section,
for a CAIR SO2 opt-in unit under subpart III of this part,
the calendar quarter corresponding to the date on which the CAIR
SO2 opt-in unit enters the CAIR SO2 Trading
Program as provided in Sec. 97.284(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 Sec. 75.64 of this chapter.
(3) For CAIR SO2 units that are also subject to an Acid
Rain emissions limitation or the CAIR NOX Annual Trading
Program, CAIR NOX Ozone Season 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 SO2 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 SO2 emission controls and for
all hours where SO2 data are substituted in accordance with
Sec. 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 SO2 emissions.
Sec. 97.275 Petitions.
The CAIR designated representative of a CAIR SO2 unit
may submit a petition under Sec. 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.
Subpart III--CAIR SO2 Opt-in Units
Sec. 97.280 Applicability.
A CAIR SO2 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 Sec. 51.124(r)(1), (2), or (3) of this chapter
establishing procedures concerning CAIR opt-in units;
(b) Is not a CAIR SO2 unit under Sec. 97.204 and is not
covered by a retired unit exemption under Sec. 97.205 that is in
effect;
(c) Is not covered by a retired unit exemption under Sec. 72.8 of
this chapter that is in effect and is not an opt-in source under part
74 of this chapter;
(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.
Sec. 97.281 General.
(a) Except as otherwise provided in Sec. Sec. 97.201 through
97.204, Sec. Sec. 97.206 through 97.208, and subparts BBB and CCC and
subparts FFF through HHH of this part, a CAIR SO2 opt-in
unit shall be treated as a CAIR SO2 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 HHH 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 SO2 unit before issuance of a
CAIR opt-in permit for such unit.
Sec. 97.282 CAIR designated representative.
Any CAIR SO2 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 SO2 units shall have
the same CAIR designated representative and alternate CAIR designated
representative as such CAIR SO2 units.
Sec. 97.283 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
SO2 opt-in unit in Sec. 97.280 may apply for an initial
CAIR opt-in permit at any time, except as provided under Sec.
97.286(f) and (g),
[[Page 25440]]
and, in order to apply, must submit the following:
(1) A complete CAIR permit application under Sec. 97.222;
(2) A certification, in a format specified by the permitting
authority, that the unit:
(i) Is not a CAIR SO2 unit under Sec. 97.204 and is not
covered by a retired unit exemption under Sec. 97.205 that is in
effect;
(ii) Is not covered by a retired unit exemption under Sec. 72.8 of
this chapter that is in effect;
(iii) Is not, and so long as the unit is a CAIR SO2 opt-
in unit, will not become, an opt-in source under part 74 of this
chapter;
(iv) Vents all of its emissions to a stack, and
(v) Has documented heat input for more than 876 hours during the 6
months immediately preceding submission of the CAIR permit application
under Sec. 97.222;
(3) A monitoring plan in accordance with subpart HHH of this part;
(4) A complete certificate of representation under Sec. 97.213
consistent with Sec. 97.282, 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 SO2 allowances under Sec. 97.288(b) or Sec.
97.288(c) (subject to the conditions in Sec. Sec. 97.284(h) and
97.286(g)), to the extent such allocation is provided in a State
implementation plan revision submitted in accordance with Sec.
51.124(r)(1), (2), or (3) of this chapter and approved by the
Administrator. If allocation under Sec. 97.288(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 SO2 opt-in unit shall submit a complete CAIR permit
application under Sec. 97.222 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 SO2 opt-in unit from
the CAIR SO2 Trading Program in accordance with Sec. 97.286
or the unit becomes a CAIR SO2 unit under Sec. 97.204, the
CAIR SO2 opt-in unit shall remain subject to the
requirements for a CAIR SO2 opt-in unit, even if the CAIR
designated representative for the CAIR SO2 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.
Sec. 97.284 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 Sec. 97.183 is submitted in accordance with the following, to
the extent provided in a State implementation plan revision submitted
in accordance with Sec. 51.124(r)(1), (2), or (3) 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 Sec. 97.283. A monitoring plan is sufficient, for
purposes of interim review, if the plan appears to contain information
demonstrating that the SO2 emissions rate and heat input of
the unit and all other applicable parameters are monitored and reported
in accordance with subpart HHH 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 SO2 emissions rate and the heat input
of the unit and all other applicable parameters, in accordance with
subpart HHH of this part, starting on the date of certification of the
appropriate monitoring systems under subpart HHH of this part and
continuing until a CAIR opt-in permit is denied under Sec. 97.284(f)
or, if a CAIR opt-in permit is issued, the date and time when the unit
is withdrawn from the CAIR SO2 Trading Program in accordance
with Sec. 97.286.
(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 SO2 Trading Program
under Sec. 97.284(g), during which period monitoring system
availability must not be less than 90 percent under subpart HHH 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 SO2 emissions rate and the heat
input of the unit are monitored and reported in accordance with subpart
HHH 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 HHH 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 SO2 Trading Program
under Sec. 97.284(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 rate shall equal:
(1) If the unit's SO2 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 SO2 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 SO2 emission rate. The unit's baseline SO2
emission rate shall equal:
(1) If the unit's SO2 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 SO2 emissions
rate (in lb/mmBtu) for the control period;
(2) If the unit's SO2 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 SO2 emission controls during any such control
periods, the average of the amounts of the unit's SO2
emissions rate (in lb/mmBtu) for the control periods under paragraphs
(b)(1)(ii) and (b)(2) of this section; or
(3) If the unit's SO2 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
SO2 emission controls during any such control periods, the
average of the amounts of the unit's SO2 emissions rate (in
lb/mmBtu) for such control periods during which the unit has add-on
SO2 emission controls.
(e) Issuance of CAIR opt-in permit. After calculating the baseline
heat input
[[Page 25441]]
and the baseline SO2 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 SO2 opt-in unit in Sec.
97.280 and meets the elements certified in Sec. 97.283(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 SO2 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 SO2 opt-in unit
in Sec. 97.280 or meets the elements certified in Sec. 97.283(a)(2),
the permitting authority will issue a denial of a CAIR opt-in permit
for the unit.
(g) Date of entry into CAIR SO2 Trading Program. A unit for which
an initial CAIR opt-in permit is issued by the permitting authority
shall become a CAIR SO2 opt-in unit, and a CAIR
SO2 unit, as of the later of January 1, 2010 or January 1 of
the first control period during which such CAIR opt-in permit is
issued.
(h) Repowered CAIR SO2 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 SO2 opt-in
unit of CAIR SO2 allowances under Sec. 97.288(c) and such
unit is repowered after its date of entry into the CAIR SO2
Trading Program under paragraph (g) of this section, the repowered unit
shall be treated as a CAIR SO2 opt-in unit replacing the
original CAIR SO2 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 SO2 emission rate as the original CAIR
SO2 opt-in unit, and the original CAIR SO2 opt-in
unit shall no longer be treated as a CAIR SO2 opt-in unit or
a CAIR SO2 unit.
Sec. 97.285 CAIR opt-in permit contents.
(a) Each CAIR opt-in permit will contain:
(1) All elements required for a complete CAIR permit application
under Sec. 97.222;
(2) The certification in Sec. 97.283(a)(2);
(3) The unit's baseline heat input under Sec. 97.284(c);
(4) The unit's baseline SO2 emission rate under Sec.
97.284(d);
(5) A statement whether the unit is to be allocated CAIR
SO2 allowances under Sec. 97.288(b) or Sec. 97.288(c)
(subject to the conditions in Sec. Sec. 97.284(h) and 97.286(g));
(6) A statement that the unit may withdraw from the CAIR
SO2 Trading Program only in accordance with Sec. 97.286;
and
(7) A statement that the unit is subject to, and the owners and
operators of the unit must comply with, the requirements of Sec.
97.287.
(b) Each CAIR opt-in permit is deemed to incorporate automatically
the definitions of terms under Sec. 97.202 and, upon recordation by
the Administrator under subpart FFF or GGG of this part or this
subpart, every allocation, transfer, or deduction of CAIR
SO2 allowances to or from the compliance account of the
source that includes a CAIR SO2 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 SO2 opt-in unit is located and in a title V
operating permit or other federally enforceable permit for the source.
Sec. 97.286 Withdrawal from CAIR SO2 Trading Program.
Except as provided under paragraph (g) of this section, a CAIR
SO2 opt-in unit may withdraw from the CAIR SO2
Trading Program, but only if the permitting authority issues a
notification to the CAIR designated representative of the CAIR
SO2 opt-in unit of the acceptance of the withdrawal of the
CAIR SO2 opt-in unit in accordance with paragraph (d) of
this section.
(a) Requesting withdrawal. In order to withdraw a CAIR
SO2 opt-in unit from the CAIR SO2 Trading
Program, the CAIR designated representative of the CAIR SO2
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 SO2 Trading Program under
Sec. 97.284(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 SO2 opt-in
unit covered by a request under paragraph (a) of this section may
withdraw from the CAIR SO2 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
SO2 opt-in unit must meet the requirement to hold CAIR
SO2 allowances under Sec. 97.206(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 SO2 opt-in unit
CAIR SO2 allowances equal in amount to and allocated for the
same or a prior control period as any CAIR SO2 allowances
allocated to the CAIR SO2 opt-in unit under Sec. 97.288 for
any control period for which the withdrawal is to be effective. If
there are no remaining CAIR SO2 units at the source, the
Administrator will close the compliance account, and the owners and
operators of the CAIR SO2 opt-in unit may submit a CAIR
SO2 allowance transfer for any remaining CAIR SO2
allowances to another CAIR SO2 Allowance Tracking System in
accordance with subpart GGG 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 SO2 allowances required), the
permitting authority will issue a notification to the CAIR designated
representative of the CAIR SO2 opt-in unit of the acceptance
of the withdrawal of the CAIR SO2 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
SO2 opt-in unit that the CAIR SO2 opt-in unit's
request to withdraw is denied. Such CAIR SO2 opt-in unit
shall continue to be a CAIR SO2 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 SO2 opt-in
unit to terminate the CAIR opt-in permit for such unit as of the
effective date specified under paragraph (c)(1) of
[[Page 25442]]
this section. The unit shall continue to be a CAIR SO2 opt-
in unit until the effective date of the termination and shall comply
with all requirements under the CAIR SO2 Trading Program
concerning any control periods for which the unit is a CAIR
SO2 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 SO2 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 SO2 Trading Program. Once a CAIR
SO2 opt-in unit withdraws from the CAIR SO2
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 Sec. 97.283 for such CAIR
SO2 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 Sec. 97.284.
(g) Inability to withdraw. Notwithstanding paragraphs (a) through
(f) of this section, a CAIR SO2 opt-in unit shall not be
eligible to withdraw from the CAIR SO2 Trading Program if
the CAIR designated representative of the CAIR SO2 opt-in
unit requests, and the permitting authority issues a CAIR opt-in permit
providing for, allocation to the CAIR SO2 opt-in unit of
CAIR SO2 allowances under Sec. 97.288(c).
Sec. 97.287 Change in regulatory status.
(a) Notification. If a CAIR SO2 opt-in unit becomes a
CAIR SO2 unit under Sec. 97.204, then the CAIR designated
representative shall notify in writing the permitting authority and the
Administrator of such change in the CAIR SO2 opt-in unit's
regulatory status, within 30 days of such change.
(b) Permitting authority's and Administrator's actions. (1) If a
CAIR SO2 opt-in unit becomes a CAIR SO2 unit
under Sec. 97.204, the permitting authority will revise the CAIR
SO2 opt-in unit's CAIR opt-in permit to meet the
requirements of a CAIR permit under Sec. 97.223, and remove the CAIR
opt-in permit provisions, as of the date on which the CAIR
SO2 opt-in unit becomes a CAIR SO2 unit under
Sec. 97.204.
(2)(i) The Administrator will deduct from the compliance account of
the source that includes the CAIR SO2 opt-in unit that
becomes a CAIR SO2 unit under Sec. 97.204, CAIR
SO2 allowances equal in amount to and allocated for the same
or a prior control period as:
(A) Any CAIR SO2 allowances allocated to the CAIR
SO2 opt-in unit under Sec. 97.288 for any control period
after the date on which the CAIR SO2 opt-in unit becomes a
CAIR SO2 unit under Sec. 97.204; and
(B) If the date on which the CAIR SO2 opt-in unit
becomes a CAIR SO2 unit under Sec. 97.204 is not December
31, the CAIR SO2 allowances allocated to the CAIR
SO2 opt-in unit under Sec. 97.288 for the control period
that includes the date on which the CAIR SO2 opt-in unit
becomes a CAIR SO2 unit under Sec. 97.204, multiplied by
the ratio of the number of days, in the control period, starting with
the date on which the CAIR SO2 opt-in unit becomes a CAIR
SO2 unit under Sec. 97.204 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 SO2
unit that becomes a CAIR SO2 unit under Sec. 97.204
contains the CAIR SO2 allowances necessary for completion of
the deduction under paragraph (b)(2)(i) of this section.
Sec. 97.288 CAIR SO2 allowance allocations to CAIR
SO2 opt-in units.
(a) Timing requirements. (1) When the CAIR opt-in permit is issued
under Sec. 97.284(e), the permitting authority will allocate CAIR
SO2 allowances to the CAIR SO2 opt-in unit, and
submit to the Administrator the allocation for the control period in
which a CAIR SO2 opt-in unit enters the CAIR SO2
Trading Program under Sec. 97.284(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 SO2 opt-in unit enters the
CAIR SO2 Trading Program under Sec. 97.284(g) and October
31 of each year thereafter, the permitting authority will allocate CAIR
SO2 allowances to the CAIR SO2 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
SO2 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 SO2 opt-in unit is to be allocated CAIR SO2
allowances, the permitting authority will allocate in accordance with
the following procedures, if provided in a State implementation plan
revision submitted in accordance with Sec. 51.124(r)(1), (2), or (3)
of this chapter and approved by the Administrator:
(1) The heat input (in mmBtu) used for calculating the CAIR
SO2 allowance allocation will be the lesser of:
(i) The CAIR SO2 opt-in unit's baseline heat input
determined under Sec. 97.284(c); or
(ii) The CAIR SO2 opt-in unit's heat input, as
determined in accordance with subpart HHH of this part, for the
immediately prior control period, except when the allocation is being
calculated for the control period in which the CAIR SO2 opt-
in unit enters the CAIR SO2 Trading Program under Sec.
97.284(g).
(2) The SO2 emission rate (in lb/mmBtu) used for
calculating CAIR SO2 allowance allocations will be the
lesser of:
(i) The CAIR SO2 opt-in unit's baseline SO2
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d) and
multiplied by 70 percent; or
(ii) The most stringent State or Federal SO2 emissions
limitation applicable to the CAIR SO2 opt-in unit at any
time during the control period for which CAIR SO2 allowances
are to be allocated.
(3) The permitting authority will allocate CAIR SO2
allowances to the CAIR SO2 opt-in unit with a tonnage
equivalent equal to, or less than by the smallest possible amount, the
heat input under paragraph (b)(1) of this section, multiplied by the
SO2 emission rate under paragraph (b)(2) of this section,
and divided by 2,000 lb/ton.
(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 Sec. 97.283(a)(5)) providing for, allocation to a CAIR
SO2 opt-in unit of CAIR SO2 allowances under this
paragraph (subject to the conditions in Sec. Sec. 97.284(h) and
97.286(g)), the permitting authority will allocate to the CAIR
SO2 opt-in unit as follows, if provided in a State
implementation plan revision submitted in accordance with Sec.
51.124(r)(1), (2), or (3) of this chapter and approved by the
Administrator:
(1) For each control period in 2010 through 2014 for which the CAIR
SO2 opt-in unit is to be allocated CAIR SO2
allowances,
(i) The heat input (in mmBtu) used for calculating CAIR
SO2 allowance allocations will be determined as described in
paragraph (b)(1) of this section.
[[Page 25443]]
(ii) The SO2 emission rate (in lb/mmBtu) used for
calculating CAIR SO2 allowance allocations will be the
lesser of:
(A) The CAIR SO2 opt-in unit's baseline SO2
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d); or
(B) The most stringent State or Federal SO2 emissions
limitation applicable to the CAIR SO2 opt-in unit at any
time during the control period in which the CAIR SO2 opt-in
unit enters the CAIR SO2 Trading Program under Sec.
97.284(g).
(iii) The permitting authority will allocate CAIR SO2
allowances to the CAIR SO2 opt-in unit with a tonnage
equivalent equal to, or less than by the smallest possible amount, the
heat input under paragraph (c)(1)(i) of this section, multiplied by the
SO2 emission rate under paragraph (c)(1)(ii) of this
section, and divided by 2,000 lb/ton.
(2) For each control period in 2015 and thereafter for which the
CAIR SO2 opt-in unit is to be allocated CAIR SO2
allowances,
(i) The heat input (in mmBtu) used for calculating the CAIR
SO2 allowance allocations will be determined as described in
paragraph (b)(1) of this section.
(ii) The SO2 emission rate (in lb/mmBtu) used for
calculating the CAIR SO2 allowance allocation will be the
lesser of:
(A) The CAIR SO2 opt-in unit's baseline SO2
emissions rate (in lb/mmBtu) determined under Sec. 97.284(d)
multiplied by 10 percent; or
(B) The most stringent State or Federal SO2 emissions
limitation applicable to the CAIR SO2 opt-in unit at any
time during the control period for which CAIR SO2 allowances
are to be allocated.
(iii) The permitting authority will allocate CAIR SO2
allowances to the CAIR SO2 opt-in unit with a tonnage
equivalent equal to, or less than by the smallest possible amount, the
heat input under paragraph (c)(2)(i) of this section, multiplied by the
SO2 emission rate under paragraph (c)(2)(ii) of this
section, and divided by 2,000 lb/ton.
(d) Recordation. If provided in a State implementation plan
revision submitted in accordance with Sec. 51.124(r)(1), (2), or (3)
of this chapter and approved by the Administrator:
(1) The Administrator will record, in the compliance account of the
source that includes the CAIR SO2 opt-in unit, the CAIR
SO2 allowances allocated by the permitting authority to the
CAIR SO2 opt-in unit under paragraph (a)(1) of this section.
(2) By December 1 of the control period in which a CAIR
SO2 opt-in unit enters the CAIR SO2 Trading
Program under Sec. 97.284(g) and December 1 of each year thereafter,
the Administrator will record, in the compliance account of the source
that includes the CAIR SO2 opt-in unit, the CAIR
SO2 allowances allocated by the permitting authority to the
CAIR SO2 opt-in unit under paragraph (a)(2) of this section.
Appendix A to Subpart III of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR SO2 Opt-In
Units
1. The following States have State Implementation Plan revisions
under Sec. 51.124(r) of this chapter approved by the Administrator
and establishing procedures providing for CAIR SO2 opt-in
units under subpart III of this part and allocation of CAIR
SO2 allowances to such units under Sec. 97.288(b):
[Reserved]
2. The following States have State Implementation Plan revisions
under Sec. 51.124(r) of this chapter approved by the Administrator
and establishing procedures providing for CAIR SO2 opt-in
units under subpart III of this part and allocation of CAIR
SO2 allowances to such units under Sec. 97.288(c):
[Reserved]
0
5. Part 97 is amended by adding subparts AAAA through IIII to read as
follows:
Subpart AAAA--CAIR NOX Ozone Season Trading Program General
Provisions
Sec.
97.301 Purpose.
97.302 Definitions.
97.303 Measurements, abbreviations, and acronyms.
97.304 Applicability.
97.305 Retired unit exemption.
97.306 Standard requirements.
97.307 Computation of time.
97.308 Appeal procedures.
Appendix A to Subpart AAAA of Part 97--States With Approved State
Implementation Plan Revisions Concerning Applicability
Subpart BBBB--CAIR Designated Representative for CAIR NOX
Ozone Season Sources
97.310 Authorization and responsibilities of CAIR designated
representative.
97.311 Alternate CAIR designated representative.
97.312 Changing CAIR designated representative and alternate CAIR
designated representative; changes in owners and operators.
97.313 Certificate of representation.
97.314 Objections concerning CAIR designated representative.
97.315 Delegation by CAIR designated representative and alternate
CAIR designated representative.
Subpart CCCC--Permits
97.320 General CAIR NOX Ozone Season Trading Program
permit requirements.
97.321 Submission of CAIR permit applications.
97.322 Information requirements for CAIR permit applications.
97.323 CAIR permit contents and term.
97.324 CAIR permit revisions.
Subpart DDDD--[Reserved]
Subpart EEEE--CAIR NOX Ozone Season Allowance Allocations
97.340 State trading budgets.
97.341 Timing requirements for CAIR NOX Ozone Season
allowance allocations.
97.342 CAIR NOX Ozone Season allowance allocations.
97.343 Alternative of allocation of CAIR NOX Ozone Season
allowances by permitting authority.
Appendix A to Subpart EEEE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations
Subpart FFFF--CAIR NOX Ozone Season Allowance Tracking
System
97.350 [Reserved]
97.351 Establishment of accounts.
97.352 Responsibilities of CAIR authorized account representative.
97.353 Recordation of CAIR NOX Ozone Season allowance
allocations.
97.354 Compliance with CAIR NOX emissions limitation.
97.355 Banking.
97.356 Account error.
97.357 Closing of general accounts.
Subpart GGGG--CAIR NOX Ozone Season Allowance Transfers
97.360 Submission of CAIR NOX Ozone Season allowance
transfers.
97.361 EPA recordation.
97.362 Notification.
Subpart HHHH--Monitoring and Reporting
97.370 General requirements.
97.371 Initial certification and recertification procedures.
97.372 Out of control periods.
97.373 Notifications.
97.374 Recordkeeping and reporting.
97.375 Petitions.
Subpart IIII--CAIR NOX Ozone Season Opt-in Units
97.380 Applicability.
97.381 General.
97.382 CAIR designated representative.
97.383 Applying for CAIR opt-in permit.
97.384 Opt-in process.
97.385 CAIR opt-in permit contents.
97.386 Withdrawal from CAIR NOX Ozone Season Trading
Program.
97.387 Change in regulatory status.
97.388 CAIR NOX Ozone Season allowance allocations to
CAIR NOX Ozone Season opt-in units.
[[Page 25444]]
Appendix A to Subpart IIII of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR NOX Ozone
Season Opt-In Units
Subpart AAAA--CAIR NOX Ozone Season Trading Program
General Provisions
Sec. 97.301 Purpose.
This subpart and subparts BBBB through IIII 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 Ozone Season Trading Program, under section
110 of the Clean Air Act and Sec. 52.35 of this chapter, as a means of
mitigating interstate transport of ozone and nitrogen oxides.
Sec. 97.302 Definitions.
The terms used in this subpart and subparts BBBB through IIII 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 Ozone Season 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 NOX
Ozone Season allowances, the determination by a permitting authority or
the Administrator of the amount of such CAIR NOX Ozone
Season allowances to be initially credited to a CAIR NOX
Ozone Season unit, a new unit set-aside, or other entity.
Allowance transfer deadline means, for a control period, midnight
of November 30 (if it is a business day), or midnight of the first
business day thereafter (if November 30 is not a business day),
immediately following the control period and is the deadline by which a
CAIR NOX Ozone Season allowance transfer must be submitted
for recordation in a CAIR NOX Ozone Season source's
compliance account in order to be used to meet the source's CAIR
NOX Ozone Season emissions limitation for such control
period in accordance with Sec. 97.354.
Alternate CAIR designated representative means, for a CAIR
NOX Ozone Season source and each CAIR NOX Ozone
Season 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 BBBB and IIII of this part, to act on behalf
of the CAIR designated representative in matters pertaining to the CAIR
NOX Ozone Season Trading Program. If the CAIR NOX
Ozone Season 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 NOX Ozone Season 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 Ozone Season
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
Ozone Season 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 HHHH 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 HHHH 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.
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 BBBB, FFFF, and IIII of this part, to transfer
and otherwise dispose of CAIR NOX Ozone Season 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
Ozone Season source and each CAIR NOX Ozone Season 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 BBBB and IIII of this part, to represent and legally bind
each owner and operator in matters pertaining to the CAIR
NOX Ozone Season Trading Program. If the CAIR NOX
Ozone Season 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 NOX Ozone Season 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 Ozone Season
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 Ozone Season 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 Sec. Sec. 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 Sec. 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 allowance means a limited authorization
issued by a permitting authority or the Administrator under subpart
EEEE of this part, Sec. 97.388, or provisions of a State
implementation plan that are approved under Sec. 51.123(aa)(1) or (2)
(and (bb)(1)), (bb)(2), (dd), or (ee) 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 Ozone Season Trading Program
or a limited authorization issued by a
[[Page 25445]]
permitting authority for a control period during 2003 through 2008
under the NOX Budget Trading Program in accordance with
Sec. 51.121(p) of this chapter to emit one ton of nitrogen oxides
during a control period, provided that the provision in Sec.
51.121(b)(2)(ii)(E) of this chapter shall not be used in applying this
definition and the limited authorization shall not have been used to
meet the allowance-holding requirement under the NOX Budget
Trading Program. An authorization to emit nitrogen oxides that is not
issued under subpart EEEE of this part, Sec. 97.388, or provisions of
a State implementation plan that are approved under Sec. 51.123(aa)(1)
or (2) (and (bb)(1)), (bb)(2), (dd), or (ee) of this chapter or under
the NOX Budget Trading Program as described in the prior
sentence shall not be a CAIR NOX Ozone Season allowance.
CAIR NOX Ozone Season allowance deduction or deduct CAIR NOX Ozone
Season allowances means the permanent withdrawal of CAIR NOX
Ozone Season 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 Ozone Season
units at a CAIR NOX Ozone Season source for a control
period, determined in accordance with subpart HHHH of this part, or to
account for excess emissions.
CAIR NOX Ozone Season Allowance Tracking System means the system by
which the Administrator records allocations, deductions, and transfers
of CAIR NOX Ozone Season allowances under the CAIR
NOX Ozone Season Trading Program. Such allowances will be
allocated, held, deducted, or transferred only as whole allowances.
CAIR NOX Ozone Season Allowance Tracking System account means an
account in the CAIR NOX Ozone Season Allowance Tracking
System established by the Administrator for purposes of recording the
allocation, holding, transferring, or deducting of CAIR NOX
Ozone Season allowances.
CAIR NOX Ozone Season allowances held or hold CAIR NOX
Ozone Season allowances means the CAIR NOX Ozone Season
allowances recorded by the Administrator, or submitted to the
Administrator for recordation, in accordance with subparts FFFF, GGGG,
and IIII of this part, in a CAIR NOX Ozone Season Allowance
Tracking System account.
CAIR NOX Ozone Season emissions limitation means, for a CAIR
NOX Ozone Season source, the tonnage equivalent, in
NOX emissions in a control period, of the CAIR
NOX Ozone Season allowances available for deduction for the
source under Sec. 97.354(a) and (b) for the control period.
CAIR NOX Ozone Season source means a source that includes one or
more CAIR NOX Ozone Season units.
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 Sec. Sec. 51.123(ee) and 52.35 of this chapter or
approved and administered by the Administrator in accordance with under
subparts AAAA through IIII and Sec. 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 Ozone Season unit means a unit that is subject to the CAIR
NOX Ozone Season Trading Program under Sec. 97.304 and,
except for purposes of Sec. 97.305 and subpart EEEE of this part, a
CAIR NOX Ozone Season opt-in unit under subpart IIII of this
part.
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 CCCC of this part, including any permit
revisions, specifying the CAIR NOX Ozone Season Trading
Program requirements applicable to a CAIR NOX Ozone Season
source, to each CAIR NOX Ozone Season 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 Sec. Sec. 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 Sec. 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 EEEE 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 EEEE 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.
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
[[Page 25446]]
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 Sec. 97.305 and Sec. 97.384(h).
(i) For a unit that is a CAIR NOX Ozone Season unit
under Sec. 97.304 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 Ozone Season unit
under Sec. 97.304 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), (2),
or (3) of this definition as appropriate.
(2) Notwithstanding paragraph (1) of this definition and except as
provided in Sec. 97.305, for a unit that is not a CAIR NOX
Ozone Season unit under Sec. 97.304 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 Ozone Season unit under Sec. 97.304.
(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), (2), or (3) of this definition
as appropriate.
(3) Notwithstanding paragraphs (1) and (2) of this definition, for
a unit not serving a generator producing electricity for sale, the
unit's date of commencement of operation shall also be the unit's date
of commencement of commercial operation.
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 Sec. 97.384(h).
(i) 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.
(ii) 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) or (2) of this
definition as appropriate, except as provided in Sec. 97.384(h).
(2) Notwithstanding paragraph (1) of this definition and solely for
purposes of subpart HHHH of this part, for a unit that is not a CAIR
NOX Ozone Season unit under Sec. 97.304(d) on the later of
November 15, 1990 or the date the unit commences operation as defined
in paragraph (1) of this definition and subsequently becomes such a
CAIR NOX Ozone Season unit, the unit's date for commencement
of operation shall be the date on which the unit becomes a CAIR
NOX Ozone Season unit under Sec. 97.304(d).
(i) For a unit with a date for commencement of 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
operation of the unit, which shall continue to be treated as the same
unit.
(ii) For a unit with a date for commencement of 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 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)
or (2) of this definition as appropriate.
Common stack means a single flue through which emissions from 2 or
more units are exhausted.
Compliance account means a CAIR NOX Ozone Season
Allowance Tracking System account, established by the Administrator for
a CAIR NOX Ozone Season source under subpart FFFF or IIII of
this part, in which any CAIR NOX Ozone Season allowance
allocations for the CAIR NOX Ozone Season units at the
source are initially recorded and in which are held any CAIR
NOX Ozone Season allowances available for use for a control
period in order to meet the source's CAIR NOX Ozone Season
emissions limitation in accordance with Sec. 97.354.
Continuous emission monitoring system or CEMS means the equipment
required under subpart HHHH 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 HHHH 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);
[[Page 25447]]
(4) A moisture monitoring system, as defined in Sec. 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 or ozone season means the period beginning May 1 of
a calendar year, except as provided in Sec. 97.306(c)(2) and ending on
September 30 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 HHHH of this part.
Excess emissions means any ton of nitrogen oxides emitted by the
CAIR NOX Ozone Season units at a CAIR NOX Ozone
Season source during a control period that exceeds the CAIR
NOX Ozone Season 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 Ozone Season Allowance
Tracking System account, established under subpart FFFF 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 HHHH 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
Sec. 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 HHHH 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 EEEE 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 Ozone Season unit or a CAIR NOX Ozone
Season 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 Ozone Season source or a
CAIR NOX Ozone Season unit at a source, respectively:
(i) Any holder of any portion of the legal or equitable title in a
CAIR NOX Ozone Season unit at the source or the CAIR
NOX Ozone Season unit;
(ii) Any holder of a leasehold interest in a CAIR NOX
Ozone Season unit at the source or the CAIR NOX Ozone Season
unit; or
(iii) Any purchaser of power from a CAIR NOX Ozone
Season unit at the source or the CAIR NOX Ozone Season 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
[[Page 25448]]
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 Ozone Season unit; or
(2) With regard to any general account, any person who has an
ownership interest with respect to the CAIR NOX Ozone Season
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 Ozone Season 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 Ozone Season Trading Program in accordance with
subpart CCCC of this part 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 Ozone Season allowances, the movement of CAIR
NOX Ozone Season allowances by the Administrator into or
between CAIR NOX Ozone Season 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 Ozone Season
allowance, the unique identification number assigned to each CAIR
NOX Ozone Season 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 Ozone Season 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 Ozone Season 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 HHHH 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.
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;
[[Page 25449]]
(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.
Sec. 97.303 Measurements, abbreviations, and acronyms.
Measurements, abbreviations, and acronyms used in this subpart and
subparts BBBB through IIII 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.
Sec. 97.304 Applicability.
(a) Except as provided in paragraph (b) of this section:
(1) The following units in a State shall be CAIR NOX
Ozone Season units, and any source that includes one or more such units
shall be a CAIR NOX Ozone Season source, subject to the
requirements of this subpart and subparts BBBB through HHHH 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
Ozone Season 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 Ozone Season 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 Ozone Season units:
(1)(i) Any unit that is a CAIR NOX Ozone Season 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 Ozone Season
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 Ozone Season 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 Ozone Season 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 Ozone Season 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 Ozone Season 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 Ozone Season Trading Program to the unit shall be
binding on the permitting authority unless the petition or other
information or documents provided in connection with
[[Page 25450]]
the petition are found to have contained significant, relevant errors
or omissions.
(d) Notwithstanding paragraphs (a) and (b) of this section, if a
State submits, and the Administrator approves, a State implementation
plan revision in accordance with Sec. 51.123(ee)(1) of this chapter
providing for the inclusion in the CAIR NOX Ozone Season
Trading Program of all units that are not otherwise CAIR NOX
Ozone Season units under paragraphs (a) and (b) of this section and
that are NOX Budget units covered by the State's emissions
trading program approved under Sec. 51.121(p) of this chapter, such
units shall be CAIR NOX Ozone Season units as of the first
date that they are NOX Budget units under the NOX
Budget Trading Program under Sec. 51.121(p) of this chapter.
Sec. 97.305 Retired unit exemption.
(a)(1) Any CAIR NOX Ozone Season unit that is
permanently retired and is not a CAIR NOX Ozone Season opt-
in unit under subpart IIII of this part shall be exempt from the CAIR
NOX Ozone Season Trading Program, except for the provisions
of this section, Sec. Sec. 97.302, 97.303, 97.304, 97.306(c)(4)
through (7), 97.307, 97.308, and subparts BBBB and EEEE through GGGG of
this part.
(2) The exemption under paragraph (a)(1) of this section shall
become effective the day on which the CAIR NOX Ozone Season
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
CCCC 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 Ozone Season allowances under subpart EEEE 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 Ozone Season 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 Sec. 97.322 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 HHHH 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.
Sec. 97.306 Standard requirements.
(a) Permit requirements. (1) The CAIR designated representative of
each CAIR NOX Ozone Season source required to have a title V
operating permit and each CAIR NOX Ozone Season 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 Sec. 97.322 in accordance with the deadlines
specified in Sec. 97.321; 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 Ozone
Season source required to have a title V operating permit and each CAIR
NOX Ozone Season unit required to have a title V operating
permit at the source shall have a CAIR permit issued by the permitting
authority under subpart CCCC 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 IIII of this part, the owners and
operators of a CAIR NOX Ozone Season source that is not
otherwise required to have a title V operating permit and each CAIR
NOX Ozone Season 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 CCCC of this part
for such CAIR NOX Ozone Season source and such CAIR
NOX Ozone Season unit.
(b) Monitoring, reporting, and recordkeeping requirements. (1) The
owners and operators, and the CAIR designated representative, of each
CAIR NOX Ozone Season source and each CAIR NOX
Ozone Season unit at the source shall comply with the monitoring,
reporting, and recordkeeping requirements of subpart HHHH of this part.
(2) The emissions measurements recorded and reported in accordance
with subpart HHHH of this part shall be used to determine compliance by
each CAIR NOX Ozone Season source with the CAIR
NOX Ozone Season emissions limitation under paragraph (c) of
this section.
(c) Nitrogen oxides ozone season emission requirements. (1) As of
the allowance transfer deadline for a control period, the owners and
operators of each CAIR NOX Ozone Season source and each CAIR
NOX Ozone Season unit at the source shall hold, in the
source's compliance account, CAIR NOX Ozone Season
allowances available for compliance deductions for the control period
under Sec. 97.354(a) in an amount not less than the tons of total
nitrogen oxides emissions for the control period
[[Page 25451]]
from all CAIR NOX Ozone Season units at the source, as
determined in accordance with subpart HHHH of this part.
(2) A CAIR NOX Ozone Season unit shall be subject to the
requirements under paragraph (c)(1) of this section for the control
period starting on the later of May 1, 2009 or the deadline for meeting
the unit's monitor certification requirements under Sec. 97.370(b)(1),
(2), (3), or (7) and for each control period thereafter.
(3) A CAIR NOX Ozone Season 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 Ozone Season allowance was
allocated.
(4) CAIR NOX Ozone Season allowances shall be held in,
deducted from, or transferred into or among CAIR NOX Ozone
Season Allowance Tracking System accounts in accordance with subparts
EEEE, FFFF, GGGG, and IIII of this part.
(5) A CAIR NOX Ozone Season allowance is a limited
authorization to emit one ton of nitrogen oxides in accordance with the
CAIR NOX Ozone Season Trading Program. No provision of the
CAIR NOX Ozone Season Trading Program, the CAIR permit
application, the CAIR permit, or an exemption under Sec. 97.305 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 Ozone Season allowance does not
constitute a property right.
(7) Upon recordation by the Administrator under subpart EEEE, FFFF,
GGGG, or IIII of this part, every allocation, transfer, or deduction of
a CAIR NOX Ozone Season allowance to or from a CAIR
NOX Ozone Season source's compliance account is incorporated
automatically in any CAIR permit of the source.
(d) Excess emissions requirements. If a CAIR NOX Ozone
Season source emits nitrogen oxides during any control period in excess
of the CAIR NOX Ozone Season emissions limitation, then:
(1) The owners and operators of the source and each CAIR
NOX Ozone Season unit at the source shall surrender the CAIR
NOX Ozone Season allowances required for deduction under
Sec. 97.354(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 Ozone
Season source and each CAIR NOX Ozone Season 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 Sec. 97.313 for the
CAIR designated representative for the source and each CAIR
NOX Ozone Season 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 Sec. 97.313 changing the CAIR designated
representative.
(ii) All emissions monitoring information, in accordance with
subpart HHHH of this part, provided that to the extent that subpart
HHHH 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 Ozone Season Trading Program.
(iv) Copies of all documents used to complete a CAIR permit
application and any other submission under the CAIR NOX
Ozone Season Trading Program or to demonstrate compliance with the
requirements of the CAIR NOX Ozone Season Trading Program.
(2) The CAIR designated representative of a CAIR NOX
Ozone Season source and each CAIR NOX Ozone Season unit at
the source shall submit the reports required under the CAIR
NOX Ozone Season Trading Program, including those under
subpart HHHH of this part.
(f) Liability. (1) Each CAIR NOX Ozone Season source and
each CAIR NOX Ozone Season unit shall meet the requirements
of the CAIR NOX Ozone Season Trading Program.
(2) Any provision of the CAIR NOX Ozone Season Trading
Program that applies to a CAIR NOX Ozone Season source or
the CAIR designated representative of a CAIR NOX Ozone
Season source shall also apply to the owners and operators of such
source and of the CAIR NOX Ozone Season units at the source.
(3) Any provision of the CAIR NOX Ozone Season Trading
Program that applies to a CAIR NOX Ozone Season unit or the
CAIR designated representative of a CAIR NOX Ozone Season
unit shall also apply to the owners and operators of such unit.
(g) Effect on other authorities. No provision of the CAIR
NOX Ozone Season Trading Program, a CAIR permit application,
a CAIR permit, or an exemption under Sec. 97.305 shall be construed as
exempting or excluding the owners and operators, and the CAIR
designated representative, of a CAIR NOX Ozone Season source
or CAIR NOX Ozone Season unit from compliance with any other
provision of the applicable, approved State implementation plan, a
federally enforceable permit, or the Clean Air Act.
Sec. 97.307 Computation of time.
(a) Unless otherwise stated, any time period scheduled, under the
CAIR NOX Ozone Season 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 Ozone Season 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 Ozone Season Trading Program, falls on a
weekend or a State or Federal holiday, the time period shall be
extended to the next business day.
Sec. 97.308 Appeal procedures.
The appeal procedures for decisions of the Administrator under the
CAIR NOX Ozone Season Trading Program are set forth in part
78 of this chapter.
Appendix A to Subpart AAAA of Part 97--States With Approved State
Implementation Plan Revisions Concerning Applicability
The following States have State Implementation Plan revisions
under Sec. 51.123(ee)(1) of this chapter approved by the
Administrator and providing for expansion of the applicability
provisions to include all non-EGUs subject to the respective State's
emission trading program approved under Sec. 51.121(p) of this
chapter:
[Reserved]
[[Page 25452]]
Subpart BBBB--CAIR Designated Representative for CAIR
NOX Ozone Season Sources
Sec. 97.310 Authorization and responsibilities of CAIR designated
representative.
(a) Except as provided under Sec. 97.311, each CAIR NOX
Ozone Season source, including all CAIR NOX Ozone Season
units at the source, shall have one and only one CAIR designated
representative, with regard to all matters under the CAIR
NOX Ozone Season Trading Program concerning the source or
any CAIR NOX Ozone Season unit at the source.
(b) The CAIR designated representative of the CAIR NOX
Ozone Season source shall be selected by an agreement binding on the
owners and operators of the source and all CAIR NOX Ozone
Season units at the source and shall act in accordance with the
certification statement in Sec. 97.313(a)(4)(iv).
(c) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 97.313, 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 Ozone Season source represented and
each CAIR NOX Ozone Season unit at the source in all matters
pertaining to the CAIR NOX Ozone Season 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 Ozone Season Allowance Tracking
System account will be established for a CAIR NOX Ozone
Season unit at a source, until the Administrator has received a
complete certificate of representation under Sec. 97.313 for a CAIR
designated representative of the source and the CAIR NOX
Ozone Season units at the source.
(e)(1) Each submission under the CAIR NOX Ozone Season
Trading Program shall be submitted, signed, and certified by the CAIR
designated representative for each CAIR NOX Ozone Season
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 Ozone Season source or a CAIR NOX Ozone
Season unit only if the submission has been made, signed, and certified
in accordance with paragraph (e)(1) of this section.
Sec. 97.311 Alternate CAIR designated representative.
(a) A certificate of representation under Sec. 97.313 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 Sec. 97.313, 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 Sec. Sec. 97.302, 97.310(a) and
(d), 97.312, 97.313, 97.315, 97.351, and 97.382, whenever the term
``CAIR designated representative'' is used in subparts AAAA through
IIII of this part, the term shall be construed to include the CAIR
designated representative or any alternate CAIR designated
representative.
Sec. 97.312 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 Sec. 97.313. 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 Ozone Season source and
the CAIR NOX Ozone Season 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 Sec. 97.313. 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
Ozone Season source and the CAIR NOX Ozone Season units at
the source.
(c) Changes in owners and operators. (1) In the event an owner or
operator of a CAIR NOX Ozone Season source or a CAIR
NOX Ozone Season unit is not included in the list of owners
and operators in the certificate of representation under Sec. 97.313,
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 Ozone Season source or a CAIR NOX
Ozone Season 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 Sec. 97.313 amending the list of owners and
operators to include the change.
Sec. 97.313 Certificate of representation.
(a) A complete certificate of representation for a CAIR designated
representative or an alternate CAIR designated representative shall
include
[[Page 25453]]
the following elements in a format prescribed by the Administrator:
(1) Identification of the CAIR NOX Ozone Season source,
and each CAIR NOX Ozone Season 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
Ozone Season source and of each CAIR NOX Ozone Season 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 Ozone Season 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 Ozone
Season Trading Program on behalf of the owners and operators of the
source and of each CAIR NOX Ozone Season 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 Ozone Season 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 Ozone
Season unit, or where a utility or industrial customer purchases power
from a CAIR NOX Ozone Season 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 Ozone Season unit at the source;
and CAIR NOX Ozone Season allowances and proceeds of
transactions involving CAIR NOX Ozone Season 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 Ozone Season allowances
by contract, CAIR NOX Ozone Season allowances and proceeds
of transactions involving CAIR NOX Ozone Season 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.
Sec. 97.314 Objections concerning CAIR designated representative.
(a) Once a complete certificate of representation under Sec.
97.313 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
Sec. 97.313 is received by the Administrator.
(b) Except as provided in Sec. 97.312(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 Ozone Season 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 Ozone Season allowance transfers.
Sec. 97.315 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
97.315(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 97.315(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 97.315 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
[[Page 25454]]
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.
Subpart CCCC--Permits
Sec. 97.320 General CAIR NOX Ozone Season Trading Program
permit requirements.
(a) For each CAIR NOX Ozone Season source required to
have a title V operating permit or required, under subpart IIII 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
Sec. 97.305, this subpart, and subpart IIII of this part.
(b) Each CAIR permit shall contain, with regard to the CAIR
NOX Ozone Season source and the CAIR NOX Ozone
Season units at the source covered by the CAIR permit, all applicable
CAIR NOX Ozone Season Trading Program, CAIR NOX
Annual 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.
Sec. 97.321 Submission of CAIR permit applications.
(a) Duty to apply. The CAIR designated representative of any CAIR
NOX Ozone Season source required to have a title V operating
permit shall submit to the permitting authority a complete CAIR permit
application under Sec. 97.322 for the source covering each CAIR
NOX Ozone Season 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 Ozone
Season unit commences commercial operation, except as provided in Sec.
97.383(a).
(b) Duty to reapply. For a CAIR NOX Ozone Season source
required to have a title V operating permit, the CAIR designated
representative shall submit a complete CAIR permit application under
Sec. 97.322 for the source covering each CAIR NOX Ozone
Season 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 Sec. 97.383(b).
Sec. 97.322 Information requirements for CAIR permit applications.
A complete CAIR permit application shall include the following
elements concerning the CAIR NOX Ozone Season source for
which the application is submitted, in a format prescribed by the
permitting authority:
(a) Identification of the CAIR NOX Ozone Season source;
(b) Identification of each CAIR NOX Ozone Season unit at
the CAIR NOX Ozone Season source; and
(c) The standard requirements under Sec. 97.306.
Sec. 97.323 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 Sec. 97.322.
(b) Each CAIR permit is deemed to incorporate automatically the
definitions of terms under Sec. 97.302 and, upon recordation by the
Administrator under subpart EEEE, FFFF, GGGG, or IIII of this part,
every allocation, transfer, or deduction of a CAIR NOX Ozone
Season allowance to or from the compliance account of the CAIR
NOX Ozone Season 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 Ozone Season source's title V operating permit or other
federally enforceable permit as applicable.
Sec. 97.324 CAIR permit revisions.
Except as provided in Sec. 97.323(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.
Subpart DDDD--[Reserved]
Subpart EEEE--CAIR NOX Ozone Season Allowance
Allocations
Sec. 97.340 State trading budgets.
(a) Except as provided in paragraph (b) of this section, the State
trading budgets for annual allocations of CAIR NOX Ozone
Season allowances for the control periods in 2009 through 2014 and in
2015 and thereafter are respectively as follows:
------------------------------------------------------------------------
State trading
State trading budget for
State budget for 2015 and
2009-2014 thereafter
(tons) (tons)
------------------------------------------------------------------------
Alabama................................. 32,182 26,818
Arkansas................................ 11,515 9,597
Connecticut............................. 2,559 2,559
Delaware................................ 2,226 1,855
District of Columbia.................... 112 94
Florida................................. 47,912 39,926
Illinois................................ 30,701 28,981
Indiana................................. 45,952 39,273
Iowa.................................... 14,263 11,886
Kentucky................................ 36,045 30,587
Louisiana............................... 17,085 14,238
Maryland................................ 12,834 10,695
[[Page 25455]]
Massachusetts........................... 7,551 6,293
Michigan................................ 28,971 24,142
Mississippi............................. 8,714 7,262
Missouri................................ 26,678 22,231
New Jersey.............................. 6,654 5,545
New York................................ 20,632 17,193
North Carolina.......................... 28,392 23,660
Ohio.................................... 45,664 39,945
Pennsylvania............................ 42,171 35,143
South Carolina.......................... 15,249 12,707
Tennessee............................... 22,842 19,035
Virginia................................ 15,994 13,328
West Virginia........................... 26,859 26,525
Wisconsin............................... 17,987 14,989
------------------------------------------------------------------------
(b) Upon approval by the Administrator of a State's State
implementation plan revision under Sec. 51.123(ee)(1) of this chapter
providing for the inclusion in the CAIR NOX Ozone Season
Trading Program of all units that are not otherwise CAIR NOX
Ozone Season units under Sec. 97.304(a) and (b) and that are
NOX Budget units covered by the State's emissions trading
program approved under Sec. 51.121(p), the amount in the State trading
budget for a control period in a calendar year will be the sum of the
amount set forth for the State and for the year in paragraph (a) of
this section and the amount of additional CAIR NOX Ozone
Season allowance allocations issued under Sec. 51.123(ee)(1)(ii)(A) of
this chapter for the year.
Sec. 97.341 Timing requirements for CAIR NOX Ozone Season
allowance allocations.
(a) The Administrator will determine by order the CAIR
NOX Ozone Season allowance allocations, in accordance with
Sec. 97.342(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 Ozone
Season allowance allocations, in accordance with Sec. 97.342(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 April 30, 2009 and April 30 of each year thereafter, the
Administrator will determine by order the CAIR NOX Ozone
Season allowance allocations, in accordance with Sec. 97.342(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 Ozone Season 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 Sec. 97.342. Based on any such objections, the
Administrator will adjust each determination to the extent necessary to
ensure that it is in accordance with Sec. 97.342.
Sec. 97.342 CAIR NOX Ozone Season allowance allocations.
(a)(1) The baseline heat input (in mmBtu) used with respect to CAIR
NOX Ozone Season allowance allocations under paragraph (b)
of this section for each CAIR NOX Ozone Season 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 control period in 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,
[[Page 25456]]
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 Ozone Season
units in a State that have a baseline heat input (as determined under
paragraph (a) of this section) a total amount of CAIR NOX
Ozone Season 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 Sec. 97.340 (except as provided in
paragraphs (d) and (e) of this section).
(2) The Administrator will allocate CAIR NOX Ozone
Season allowances to each CAIR NOX Ozone Season unit under
paragraph (b)(1) of this section in an amount determined by multiplying
the total amount of CAIR NOX Ozone Season allowances
allocated under paragraph (b)(1) of this section by the ratio of the
baseline heat input of such CAIR NOX Ozone Season unit to
the total amount of baseline heat input of all such CAIR NOX
Ozone Season 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 Ozone Season allowances
to CAIR NOX Ozone Season units in a State that are not
allocated CAIR NOX Ozone Season 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 Ozone Season 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 Ozone Season 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 Sec. 97.340.
(2) The CAIR designated representative of such a CAIR
NOX Ozone Season unit may submit to the Administrator a
request, in a format specified by the Administrator, to be allocated
CAIR NOX Ozone Season 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 Ozone Season unit
commences commercial operation and until the first control period for
which the unit is allocated CAIR NOX Ozone Season allowances
under paragraph (b) of this section. A separate CAIR NOX
Ozone Season allowance allocation request for each control period for
which CAIR NOX Ozone Season allowances are sought must be
submitted on or before February 1 before such control period and after
the date on which the CAIR NOX Ozone Season unit commences
commercial operation.
(3) In a CAIR NOX Ozone Season allowance allocation
request under paragraph (c)(2) of this section, the CAIR designated
representative may request for a control period CAIR NOX
Ozone Season allowances in an amount not exceeding the CAIR
NOX Ozone Season unit(s total tons of NOX
emissions during the control period immediately before such control
period.
(4) The Administrator will review each CAIR NOX Ozone
Season allowance allocation request under paragraph (c)(2) of this
section and will allocate CAIR NOX Ozone Season 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 February 1 before the control period, the
Administrator will determine the sum of the CAIR NOX Ozone
Season 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 Ozone Season 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 Ozone
Season allowances requested (as adjusted under paragraph (c)(4)(i) of
this section) to each CAIR NOX Ozone Season unit covered by
an allowance allocation request accepted under paragraph (c)(4)(i) of
this section.
(iv) If the amount of CAIR NOX Ozone Season 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 Ozone Season unit covered by an
allowance allocation request accepted under paragraph (c)(4)(i) of this
section the amount of the CAIR NOX Ozone Season allowances
requested (as adjusted under paragraph (c)(4)(i) of this section),
multiplied by the amount of CAIR NOX Ozone Season 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 Ozone Season allowances (if any)
allocated for the control period to the CAIR NOX Ozone
Season 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 Ozone Season 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 Ozone
Season unit that was allocated CAIR NOX Ozone Season
allowances under paragraph (b) of this section in the State an amount
of CAIR NOX Ozone Season allowances equal to the total
amount of such remaining unallocated CAIR NOX Ozone Season
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 Sec. 97.340, and rounded to the
nearest whole allowance as appropriate.
(e) If the Administrator determines that CAIR NOX Ozone
Season allowances were allocated under paragraphs (a) and (b) of this
section,
[[Page 25457]]
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 Ozone Season unit under Sec.
97.304 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 Ozone Season
allowances under Sec. 97.353.
(2) If the Administrator already recorded such CAIR NOX
Ozone Season allowances under Sec. 97.353 and if the Administrator
makes such determinations before making deductions for the source that
includes such recipient under Sec. 97.354(b) for the control period,
then the Administrator will deduct from the account in which such CAIR
NOX Ozone Season allowances were recorded under Sec. 97.353
an amount of CAIR NOX Ozone Season allowances allocated for
the same or a prior control period equal to the amount of such already
recorded CAIR NOX Ozone Season allowances. The CAIR
designated representative shall ensure that there are sufficient CAIR
NOX Ozone Season allowances in such account for completion
of the deduction.
(3) If the Administrator already recorded such CAIR NOX
Ozone Season allowances under Sec. 97.353 and if the Administrator
makes such determinations after making deductions for the source that
includes such recipient under Sec. 97.354(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 Ozone Season allowances were allocated to such
recipient.
(4) The Administrator will transfer the CAIR NOX Ozone
Season 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.
Sec. 97.343 Alternative of allocation of CAIR NOX Ozone
Season allowances by permitting authority.
(a) Notwithstanding Sec. Sec. 97.341, 97.342, and 97.353 if a
State submits, and the Administrator approves, a State implementation
plan revision in accordance with Sec. 51.123(ee)(2) of this chapter
providing for allocation of CAIR NOX Ozone Season 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
Sec. Sec. 97.341 and 97.342 for the CAIR NOX Ozone Season
units in the State, and under Sec. 97.353, the Administrator will
record allocations made under such approved State implementation plan
revision instead of allocations under Sec. Sec. 97.341 and 97.342.
(b) In implementing paragraph(a) of this section and Sec. Sec.
97.341, 97.342, and 97.353, the Administrator will ensure that the
total amount of CAIR NOX Ozone Season allowances allocated,
under such provisions and under a State's State implementation plan
revision approved in accordance with Sec. 51.123(ee)(2) of this
chapter, for a control period for CAIR NOX Ozone Season
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.
Appendix A to Subpart EEEE of Part 97--States With Approved State
Implementation Plan Revisions Concerning Allocations
The following States have State Implementation Plan revisions
under Sec. 51.123(ee)(2) of this chapter approved by the
Administrator and providing for allocation of CAIR NOX
Ozone Season allowances by the permitting authority under Sec.
97.344(a):
[Reserved]
Subpart FFFF--CAIR NOX Ozone Season Allowance Tracking
System
Sec. 97.350 [Reserved]
Sec. 97.351 Establishment of accounts.
(a) Compliance accounts. Except as provided in Sec. 97.384(e),
upon receipt of a complete certificate of representation under Sec.
97.313, the Administrator will establish a compliance account for the
CAIR NOX Ozone Season 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 Ozone Season 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 Ozone Season 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 Ozone Season 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 Ozone Season 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
[[Page 25458]]
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 Ozone Season allowances held in the
general account in all matters pertaining to the CAIR NOX
Ozone Season 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 Ozone Season 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 Ozone Season
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 Ozone Season 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 Ozone Season
allowances in the general account.
(iii)(A) In the event a person having an ownership interest with
respect to CAIR NOX Ozone Season 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 Ozone Season
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 Ozone
Season 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 Ozone Season 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 Ozone Season 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 FFFF and GGGG 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 FFFF and GGGG of this part.
[[Page 25459]]
(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 97.351(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 97.351(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 97.351(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.
Sec. 97.352 Responsibilities of CAIR authorized account
representative.
Following the establishment of a CAIR NOX Ozone Season
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 Ozone
Season allowances in the account, shall be made only by the CAIR
authorized account representative for the account.
Sec. 97.353 Recordation of CAIR NOX Ozone Season allowance
allocations.
(a) By September 30, 2007, the Administrator will record in the
CAIR NOX Ozone Season sources compliance account the CAIR
NOX Ozone Season allowances allocated for the CAIR
NOX Ozone Season units at the source in accordance with
Sec. 97.342(a) and (b) for the control period in 2009.
(b) By September 30, 2008, the Administrator will record in the
CAIR NOX Ozone Season source's compliance account the CAIR
NOX Ozone Season allowances allocated for the CAIR
NOX Ozone Season units at the source in accordance with
Sec. 97.342(a) and (b) for the control period in 2010.
(c) By September 30, 2009, the Administrator will record in the
CAIR NOX Ozone Season source's compliance account the CAIR
Ozone Season NOX allowances allocated for the CAIR
NOX Ozone Season units at the source in accordance with
Sec. 97.342(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 Ozone Season
source's compliance account the CAIR NOX Ozone Season
allowances allocated for the CAIR NOX Ozone Season units at
the source in accordance with Sec. 97.342(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 September 1, 2009 and September 1 of each year thereafter,
the Administrator will record in the CAIR NOX Ozone Season
source's compliance account the CAIR NOX Ozone Season
allowances allocated for the CAIR NOX Ozone Season units at
the source in accordance with Sec. 97.342(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 Ozone Season allowances.
When recording the allocation of CAIR NOX Ozone Season
allowances for a CAIR NOX Ozone Season unit in a compliance
account, the Administrator will assign each CAIR NOX Ozone
Season allowance a unique identification number that will include
digits identifying the year of the control period for which the CAIR
NOX Ozone Season allowance is allocated.
Sec. 97.354 Compliance with CAIR NOX emissions limitation.
(a) Allowance transfer deadline. The CAIR NOX Ozone
Season allowances are available to be deducted for compliance with a
source's CAIR NOX Ozone Season emissions limitation for a
control period in a given calendar year only if the CAIR NOX
Ozone Season 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 Ozone Season allowance transfer
correctly submitted for recordation under 97.360 and 97.361 by the
allowance transfer deadline for the control period.
(b) Deductions for compliance. Following the recordation, in
accordance with Sec. 97.361, of CAIR NOX Ozone Season
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 Ozone Season allowances available under paragraph (a) of
this section in order to determine whether the source meets the CAIR
NOX Ozone Season emissions limitation for the control
period, as follows:
(1) Until the amount of CAIR NOX Ozone Season allowances
deducted equals the number of tons of total nitrogen oxides emissions,
determined
[[Page 25460]]
in accordance with subpart HHHH of this part, from all CAIR
NOX Ozone Season units at the source for the control period;
or
(2) If there are insufficient CAIR NOX Ozone Season
allowances to complete the deductions in paragraph (b)(1) of this
section, until no more CAIR NOX Ozone Season allowances
available under paragraph (a) of this section remain in the compliance
account.
(c)(1) Identification of CAIR NOX Ozone Season allowances by serial
number. The CAIR authorized account representative for a source's
compliance account may request that specific CAIR NOX Ozone
Season 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 Ozone Season source and the appropriate serial numbers.
(2) First-in, first-out. The Administrator will deduct CAIR
NOX Ozone Season 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 Ozone Season 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 Ozone Season allowances that were
allocated to the units at the source, in the order of recordation; and
then
(ii) Any CAIR NOX Ozone Season allowances that were
allocated to any entity and transferred and recorded in the compliance
account pursuant to subpart GGGG 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
Ozone Season source has excess emissions, the Administrator will deduct
from the source's compliance account an amount of CAIR NOX
Ozone Season 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 Ozone Season source or the CAIR NOX
Ozone Season 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 IIII.
(f) Administrator(s action on submissions. (1) The Administrator
may review and conduct independent audits concerning any submission
under the CAIR NOX Ozone Season Trading Program and make
appropriate adjustments of the information in the submissions.
(2) The Administrator may deduct CAIR NOX Ozone Season
allowances from or transfer CAIR NOX Ozone Season 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.
Sec. 97.355 Banking.
(a) CAIR NOX Ozone Season 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 Ozone Season allowance that is held in
a compliance account or a general account will remain in such account
unless and until the CAIR NOX Ozone Season allowance is
deducted or transferred under Sec. 97.342, Sec. 97.354, Sec. 97.356,
or subpart GGGG or IIII of this part.
Sec. 97.356 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 Ozone
Season Allowance Tracking System account. Within 10 business days of
making such correction, the Administrator will notify the CAIR
authorized account representative for the account.
Sec. 97.357 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 Sec.
Sec. 97.360 and 97.361 for any CAIR NOX Ozone Season
allowances in the account to one or more other CAIR NOX
Ozone Season 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 Ozone Season 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 Ozone Season
allowances into the account under Sec. Sec. 97.360 and 97.361 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.
Subpart GGGG--CAIR NOX Ozone Season Allowance Transfers
Sec. 97.360 Submission of CAIR NOX Ozone Season allowance
transfers.
A CAIR authorized account representative seeking recordation of a
CAIR NOX Ozone Season allowance transfer shall submit the
transfer to the Administrator. To be considered correctly submitted,
the CAIR NOX Ozone Season 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 Ozone Season
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.
Sec. 97.361 EPA recordation.
(a) Within 5 business days (except as provided in paragraph (b) of
this section) of receiving a CAIR NOX Ozone Season allowance
transfer, the Administrator will record a CAIR NOX Ozone
Season allowance transfer by moving each CAIR NOX Ozone
Season allowance from the transferor account to the transferee account
as specified by the request, provided that:
(1) The transfer is correctly submitted under Sec. 97.360; and
(2) The transferor account includes each CAIR NOX Ozone
Season allowance identified by serial number in the transfer.
(b) A CAIR NOX Ozone Season allowance transfer that is
submitted for recordation after the allowance transfer deadline for a
control period and that includes any CAIR NOX Ozone Season
allowances allocated for any control period before such allowance
transfer deadline will not be recorded until after
[[Page 25461]]
the Administrator completes the deductions under Sec. 97.354 for the
control period immediately before such allowance transfer deadline.
(c) Where a CAIR NOX Ozone Season allowance transfer
submitted for recordation fails to meet the requirements of paragraph
(a) of this section, the Administrator will not record such transfer.
Sec. 97.362 Notification.
(a) Notification of recordation. Within 5 business days of
recordation of a CAIR NOX Ozone Season allowance transfer
under Sec. 97.361, 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 Ozone Season allowance transfer that
fails to meet the requirements of Sec. 97.361(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 Ozone Season allowance transfer for recordation
following notification of non-recordation.
Subpart HHHH--Monitoring and Reporting
Sec. 97.370 General requirements.
The owners and operators, and to the extent applicable, the CAIR
designated representative, of a CAIR NOX Ozone Season 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 Sec. 97.302 and in Sec. 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 Ozone Season unit,'' ``CAIR designated representative,''
and ``continuous emission monitoring system'' (or ``CEMS'')
respectively, as defined in Sec. 97.302. The owner or operator of a
unit that is not a CAIR NOX Ozone Season unit but that is
monitored under Sec. 75.72(b)(2)(ii) of this chapter shall comply with
the same monitoring, recordkeeping, and reporting requirements as a
CAIR NOX Ozone Season unit.
(a) Requirements for installation, certification, and data
accounting. The owner or operator of each CAIR NOX Ozone
Season 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 Sec. Sec. 75.71 and 75.72
of this chapter);
(2) Successfully complete all certification tests required under
Sec. 97.371 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 Ozone Season
unit that commences commercial operation before July 1, 2007, by May 1,
2008.
(2) For the owner or operator of a CAIR NOX Ozone Season
unit that commences commercial operation on or after July 1, 2007 and
that reports on an annual basis under Sec. 97.374(d), by the later of
the following dates:
(i) 90 unit operating days or 180 calendar days, whichever occurs
first, after the date on which the unit commences commercial operation;
or
(ii) May 1, 2008.
(3) For the owner or operator of a CAIR NOX Ozone Season
unit that commences commercial operation on or after July 1, 2007 and
that reports on a control period basis under Sec. 97.374(d)(2)(ii), by
the later of the following dates:
(i) 90 unit operating days or 180 calendar days, whichever occurs
first, after the date on which the unit commences commercial operation;
or
(ii) If the compliance date under paragraph (b)(3)(i) of this
section is not during a control period, May 1 immediately following the
compliance date under paragraph (b)(3)(i) of this section.
(4) For the owner or operator of a CAIR NOX Ozone Season
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), (6), or (7) of this
section and that reports on an annual basis under Sec. 97.374(d), 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.
(5) For the owner or operator of a CAIR NOX Ozone Season
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), (3), (6), or (7) of this
section and that reports on a control period basis under Sec.
97.374(d)(2)(ii), by the later of the following dates:
(i) 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; or
(ii) If the compliance date under paragraph (b)(5)(i) of this
section is not during a control period, May 1 immediately following the
compliance date under paragraph (b)(5)(i) of this section.
(6) Notwithstanding the dates in paragraphs (b)(1), (2), and (3) of
this section, for the owner or operator of a unit for which a CAIR
NOX Ozone Season opt-in permit application is submitted and
not withdrawn and a CAIR opt-in permit is not yet issued or denied
under subpart IIII of this part, by the date specified in Sec.
97.384(b).
(7) Notwithstanding the dates in paragraphs (b)(1), (2), and (3) of
this section, for the owner or operator of a CAIR NOX Ozone
Season opt-in unit under subpart IIII of this part, by the date on
which the CAIR NOX Ozone Season opt-in unit enters the CAIR
NOX Ozone Season Trading Program as provided in Sec.
97.384(g).
(c) Reporting data. The owner or operator of a CAIR NOX
Ozone Season 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
[[Page 25462]]
accordance with Sec. 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
Ozone Season 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 Sec. 97.375.
(2) No owner or operator of a CAIR NOX Ozone Season 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 Ozone Season 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 Ozone Season 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 Sec. 97.305 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
Sec. 97.371(d)(3)(i).
(e) Long-term cold storage. The owner or operator of a CAIR
NOX Ozone Season unit is subject to the applicable
provisions of part 75 of this chapter concerning units in long-term
cold storage.
Sec. 97.371 Initial certification and recertification procedures.
(a) The owner or operator of a CAIR NOX Ozone Season
unit shall be exempt from the initial certification requirements of
this section for a monitoring system under Sec. 97.370(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 Sec. 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 Sec. 97.370(a)(1) exempt from initial
certification requirements under paragraph (a) of this section.
(c) If the Administrator has previously approved a petition under
Sec. 75.17(a) or (b) of this chapter for apportioning the
NOX emission rate measured in a common stack or a petition
under Sec. 75.66 of this chapter for an alternative to a requirement
in Sec. 75.12 or Sec. 75.17 of this chapter, the CAIR designated
representative shall resubmit the petition to the Administrator under
Sec. 97.375 to determine whether the approval applies under the CAIR
NOX Ozone Season Trading Program.
(d) Except as provided in paragraph (a) of this section, the owner
or operator of a CAIR NOX Ozone Season 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 Sec. 97.370(a)(1). The owner
or operator of a unit that qualifies to use the low mass emissions
excepted monitoring methodology under Sec. 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 Sec.
97.370(a)(1) (including the automated data acquisition and handling
system) successfully completes all of the initial certification testing
required under Sec. 75.20 of this chapter by the applicable deadline
in Sec. 97.370(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 Sec. 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 Sec. 97.370(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 Sec. 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 Sec.
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 Sec. 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 systems, and any excepted
NOX monitoring system under appendix E to part 75 of this
chapter, under Sec. 97.370(a)(1) are subject to the recertification
requirements in Sec. 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 Sec. 97.370(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 Sec. Sec. 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 Sec. 97.373.
(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
[[Page 25463]]
the information specified in Sec. 75.63 of this chapter.
(iii) Provisional certification date. The provisional certification
date for a monitoring system shall be determined in accordance with
Sec. 75.20(a)(3) of this chapter. A provisionally certified monitoring
system may be used under the CAIR NOX Ozone Season 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 Ozone Season 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 Sec. 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
Sec. 97.372(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 Sec.
75.20(a)(4)(iii), Sec. 75.20(g)(7), or Sec. 75.21(e) of this chapter
and continuing until the applicable date and hour specified under Sec.
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 Sec. 75.19 of
this chapter. The owner or operator of a unit qualified to use the low
mass emissions (LME) excepted methodology under Sec. 75.19 of this
chapter shall meet the applicable certification and recertification
requirements in Sec. Sec. 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 Sec.
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 Sec. 75.20(f) of this chapter.
Sec. 97.372 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
[[Page 25464]]
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 Sec.
97.371 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 Sec.
97.371 for each disapproved monitoring system.
Sec. 97.373 Notifications.
The CAIR designated representative for a CAIR NOX Ozone
Season unit shall submit written notice to the Administrator in
accordance with Sec. 75.61 of this chapter.
Sec. 97.374 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
Sec. 75.73 of this chapter, and the requirements of Sec.
97.310(e)(1).
(b) Monitoring Plans. The owner or operator of a CAIR
NOX Ozone Season unit shall comply with requirements of
Sec. 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 IIII of
this part, Sec. Sec. 97.383 and 97.384(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 Sec. 97.371, including the information required under Sec.
75.63 of this chapter.
(d) Quarterly reports. The CAIR designated representative shall
submit quarterly reports, as follows:
(1) If the CAIR NOX Ozone Season unit is subject to an
Acid Rain emissions limitation or a CAIR NOX emissions
limitation or if the owner or operator of such unit chooses to report
on an annual basis under this subpart, the CAIR designated
representative shall meet the requirements of subpart H of part 75 of
this chapter (concerning monitoring of NOX mass emissions)
for such unit for the entire year and shall report the NOX
mass emissions data and heat input data for such 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 May 1, 2008 through June 30, 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 Sec. 97.370(b), unless that quarter is the
third or fourth quarter of 2007 or the first quarter of 2008, in which
case reporting shall commence in the quarter covering May 1, 2008
through June 30, 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 IIII of this part, the calendar quarter
corresponding to the date specified in Sec. 97.384(b); and
(iv) Notwithstanding paragraphs (d)(1) (i) and (ii) of this
section, for a CAIR NOX Ozone Season opt-in unit under
subpart IIII of this part, the calendar quarter corresponding to the
date on which the CAIR NOX Ozone Season opt-in unit enters
the CAIR NOX Ozone Season Trading Program as provided in
Sec. 97.384(g).
(2) If the CAIR NOX Ozone Season unit is not subject to
an Acid Rain emissions limitation or a CAIR NOX emissions
limitation, then the CAIR designated representative shall either:
(i) Meet the requirements of subpart H of part 75 (concerning
monitoring of NOX mass emissions) for such unit for the
entire year and report the NOX mass emissions data and heat
input data for such unit in accordance with paragraph (d)(1) of this
section; or
(ii) Meet the requirements of subpart H of part 75 for the control
period (including the requirements in Sec. 75.74(c) of this chapter)
and report NOX mass emissions data and heat input data
(including the data described in Sec. 75.74(c)(6) of this chapter) for
such unit only for the control period of each year and report, in an
electronic quarterly report in a format prescribed by the
Administrator, for each calendar quarter beginning with:
(A) For a unit that commences commercial operation before July 1,
2007, the calendar quarter covering May 1, 2008 through June 30, 2008;
(B) 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 Sec. 97.370(b), unless that date is not during a
control period, in which case reporting shall commence in the quarter
that includes May 1 through June 30 of the first control period after
such date;
(C) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) 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 IIII of this part, the calendar quarter
corresponding to the date specified in Sec. 97.384(b); and
(D) Notwithstanding paragraphs (d)(2)(ii)(A) and (2)(ii)(B) of this
section, for a CAIR NOX Ozone Season opt-in unit under
subpart IIII of this part, the calendar quarter corresponding to the
date on which the CAIR NOX Ozone Season opt-in unit enters
the CAIR NOX Ozone Season Trading Program as provided in
Sec. 97.384(g).
(3) 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 Sec. 75.73(f) of this chapter.
(4) For CAIR NOX Ozone Season units that are also
subject to an Acid Rain emissions limitation or the CAIR NOX
Annual 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
[[Page 25465]]
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;
(2) For a unit with add-on NOX emission controls and for
all hours where NOX data are substituted in accordance with
Sec. 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; and
(3) 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.
Sec. 97.375 Petitions.
The CAIR designated representative of a CAIR NOX Ozone
Season unit may submit a petition under Sec. 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.
Subpart IIII--CAIR NOX Ozone Season Opt-in Units
Sec. 97.380 Applicability.
A CAIR NOX Ozone Season 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 Sec. 51.123(ee)(3) (i), (ii), or (iii) of this chapter
establishing procedures concerning CAIR Ozone Season opt-in units;
(b) Is not a CAIR NOX Ozone Season unit under Sec.
97.304 and is not covered by a retired unit exemption under Sec.
97.305 that is in effect;
(c) Is not covered by a retired unit exemption under Sec. 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 HHHH
of this part.
Sec. 97.381 General.
(a) Except as otherwise provided in Sec. Sec. 97.301 through
97.304, Sec. Sec. 97.306 through 97.308, and subparts BBBB and CCCC
and subparts FFFF through HHHH of this part, a CAIR NOX
Ozone Season opt-in unit shall be treated as a CAIR NOX
Ozone Season 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 HHHH 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 Ozone Season unit before
issuance of a CAIR opt-in permit for such unit.
Sec. 97.382 CAIR designated representative.
Any CAIR NOX Ozone Season 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
Ozone Season units shall have the same CAIR designated representative
and alternate CAIR designated representative as such CAIR
NOX Ozone Season units.
Sec. 97.383 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 Ozone Season opt-in unit in Sec. 97.380 may apply for
an initial CAIR opt-in permit at any time, except as provided under
Sec. 97.386 (f) and (g), and, in order to apply, must submit the
following:
(1) A complete CAIR permit application under Sec. 97.322;
(2) A certification, in a format specified by the permitting
authority, that the unit:
(i) Is not a CAIR NOX Ozone Season unit under Sec.
97.304 and is not covered by a retired unit exemption under Sec.
97.305 that is in effect;
(ii) Is not covered by a retired unit exemption under Sec. 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 Sec. 97.322;
(3) A monitoring plan in accordance with subpart HHHH of this part;
(4) A complete certificate of representation under Sec. 97.313
consistent with Sec. 97.382, 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 Ozone Season allowances under Sec.
97.380(b) or Sec. 97.388(c) (subject to the conditions in Sec. Sec.
97.384(h) and 97.386(g)), to the extent such allocation is provided in
a State implementation plan revision submitted in accordance with Sec.
51.123(ee)(3)(i), (ii), or (iii) of this chapter and approved by the
Administrator. If allocation under Sec. 97.388(c) is requested, this
statement shall include a statement that the owners and operators
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 Ozone Season opt-in unit shall submit a complete
CAIR permit application under Sec. 97.322 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 Ozone Season opt-in
unit from the CAIR NOX Ozone Season Trading Program in
accordance with Sec. 97.386 or the unit becomes a CAIR NOX
Ozone Season unit under Sec. 97.304, the CAIR NOX Ozone
Season opt-in unit shall remain subject to the requirements for a CAIR
NOX Ozone Season opt-in unit, even if the CAIR designated
representative for the CAIR NOX Ozone Season 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.
Sec. 97.384 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 Sec. 97.383 is submitted in accordance with the following, to
the extent provided in a State implementation plan revision submitted
in accordance with
[[Page 25466]]
Sec. 51.123(ee)(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 Sec. 97.383. 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 HHHH 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 HHHH of this part, starting on the date of certification of the
appropriate monitoring systems under subpart HHHH of this part and
continuing until a CAIR opt-in permit is denied under Sec. 97.384(f)
or, if a CAIR opt-in permit is issued, the date and time when the unit
is withdrawn from the CAIR NOX Ozone Season Trading Program
in accordance with Sec. 97.386.
(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 Ozone Season
Trading Program under Sec. 97.384(g), during which period monitoring
system availability must not be less than 90 percent under subpart HHHH
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
HHHH 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 HHHH 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 Ozone Season
Trading Program under Sec. 97.384(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 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 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 Ozone Season
opt-in unit in Sec. 97.380 and meets the elements certified in Sec.
97.383(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 Ozone Season 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 Ozone Season
opt-in unit in Sec. 97.380 or meets the elements certified in Sec.
97.383(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 Ozone Season Trading
Program. A unit for which an initial CAIR opt-in permit is issued by
the permitting authority shall become a CAIR NOX Ozone
Season opt-in unit, and a CAIR NOX Ozone Season unit, as of
the later of May 1, 2009 or May 1 of the first control period during
which such CAIR opt-in permit is issued.
(h) Repowered CAIR NOX Ozone Season 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 Ozone Season opt-in unit of CAIR NOX Ozone
Season allowances under Sec. 97.388(c) and such unit is repowered
after its date of entry into the CAIR NOX Ozone Season
Trading Program under paragraph (g) of this section, the repowered unit
shall be treated as a CAIR NOX Ozone Season opt-in unit
replacing the original CAIR NOX Ozone Season 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 Ozone Season opt-in unit, and the original CAIR
NOX Ozone Season opt-in unit shall no longer be treated as a
CAIR NOX Ozone Season opt-in unit or a CAIR NOX
Ozone Season unit.
Sec. 97.385 CAIR opt-in permit contents.
(a) Each CAIR opt-in permit will contain:
(1) All elements required for a complete CAIR permit application
under Sec. 97.322;
(2) The certification in Sec. 97.383(a)(2);
(3) The unit's baseline heat input under Sec. 97.384(c);
(4) The unit's baseline NOX emission rate under Sec.
97.384(d);
[[Page 25467]]
(5) A statement whether the unit is to be allocated CAIR
NOX Ozone Season allowances under Sec. 97.388(b) or Sec.
97.388(c) (subject to the conditions in Sec. Sec. 97.384(h) and
97.386(g));
(6) A statement that the unit may withdraw from the CAIR
NOX Ozone Season Trading Program only in accordance with
Sec. 97.386; and
(7) A statement that the unit is subject to, and the owners and
operators of the unit must comply with, the requirements of Sec.
97.387.
(b) Each CAIR opt-in permit is deemed to incorporate automatically
the definitions of terms under Sec. 97.302 and, upon recordation by
the Administrator under subpart FFFF or GGGG of this part or this
subpart, every allocation, transfer, or deduction of CAIR
NOX Ozone Season allowances to or from the compliance
account of the source that includes a CAIR NOX Ozone Season
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 Ozone Season opt-in unit is located and in a
title V operating permit or other federally enforceable permit for the
source.
Sec. 97.386 Withdrawal from CAIR NOX Ozone Season Trading
Program.
Except as provided under paragraph (g) of this section, a CAIR
NOX Ozone Season opt-in unit may withdraw from the CAIR
NOX Ozone Season Trading Program, but only if the permitting
authority issues a notification to the CAIR designated representative
of the CAIR NOX Ozone Season opt-in unit of the acceptance
of the withdrawal of the CAIR NOX Ozone Season opt-in unit
in accordance with paragraph (d) of this section.
(a) Requesting withdrawal. In order to withdraw a CAIR
NOX Ozone Season opt-in unit from the CAIR NOX
Ozone Season Trading Program, the CAIR designated representative of the
CAIR NOX Ozone Season opt-in unit shall submit to the
permitting authority a request to withdraw effective as of midnight of
September 30 of a specified calendar year, which date must be at least
4 years after September 30 of the year of entry into the CAIR
NOX Ozone Season Trading Program under Sec. 97.384(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 Ozone
Season opt-in unit covered by a request under paragraph (a) of this
section may withdraw from the CAIR NOX Ozone Season 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 Ozone Season opt-in unit must meet the requirement to
hold CAIR NOX Ozone Season allowances under Sec. 97.306(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 Ozone
Season opt-in unit CAIR NOX Ozone Season allowances equal in
amount to and allocated for the same or a prior control period as any
CAIR NOX Ozone Season allowances allocated to the CAIR
NOX Ozone Season opt-in unit under Sec. 97.388 for any
control period for which the withdrawal is to be effective. If there
are no remaining CAIR NOX Ozone Season units at the source,
the Administrator will close the compliance account, and the owners and
operators of the CAIR NOX Ozone Season opt-in unit may
submit a CAIR NOX Ozone Season allowance transfer for any
remaining CAIR NOX Ozone Season allowances to another CAIR
NOX Ozone Season Allowance Tracking System in accordance
with subpart GGGG 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 Ozone Season allowances
required), the permitting authority will issue a notification to the
CAIR designated representative of the CAIR NOX Ozone Season
opt-in unit of the acceptance of the withdrawal of the CAIR
NOX Ozone Season opt-in unit as of midnight on September 30
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 Ozone Season opt-in unit that the CAIR NOX
Ozone Season opt-in unit's request to withdraw is denied. Such CAIR
NOX Ozone Season opt-in unit shall continue to be a CAIR
NOX Ozone Season 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 Ozone
Season 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 Ozone Season opt-in
unit until the effective date of the termination and shall comply with
all requirements under the CAIR NOX Ozone Season Trading
Program concerning any control periods for which the unit is a CAIR
NOX Ozone Season 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 Ozone Season
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 Ozone Season Trading
Program. Once a CAIR NOX Ozone Season opt-in unit withdraws
from the CAIR NOX Ozone Season 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 Sec. 97.383 for such CAIR NOX Ozone Season
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 Sec. 97.384.
(g) Inability to withdraw. Notwithstanding paragraphs (a) through
(f) of this section, a CAIR NOX Ozone Season opt-in unit
shall not be eligible to withdraw from the CAIR NOX Ozone
Season Trading Program if the CAIR designated representative of the
CAIR NOX Ozone Season opt-in unit requests, and the
permitting authority issues a CAIR opt-in permit providing for,
allocation to the CAIR NOX Ozone Season opt-in unit of CAIR
NOX Ozone Season allowances under Sec. 97.388(c).
Sec. 97.387 Change in regulatory status.
(a) Notification. If a CAIR NOX Ozone Season opt-in unit
becomes a CAIR NOX Ozone Season unit under Sec. 97.304,
then the CAIR designated representative shall notify in writing the
permitting authority and the Administrator of such change in the CAIR
NOX Ozone Season 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 Ozone Season opt-in unit becomes a CAIR
NOX Ozone Season unit under
[[Page 25468]]
Sec. 97.304, the permitting authority will revise the CAIR
NOX Ozone Season opt-in unit's CAIR opt-in permit to meet
the requirements of a CAIR permit under Sec. 97.323, and remove the
CAIR opt-in permit provisions, as of the date on which the CAIR
NOX Ozone Season opt-in unit becomes a CAIR NOX
Ozone Season unit under Sec. 97.304.
(2)(i) The Administrator will deduct from the compliance account of
the source that includes the CAIR NOX Ozone Season opt-in
unit that becomes a CAIR NOX Ozone Season unit under Sec.
97.304, CAIR NOX Ozone Season allowances equal in amount to
and allocated for the same or a prior control period as:
(A) Any CAIR NOX Ozone Season allowances allocated to
the CAIR NOX Ozone Season opt-in unit under Sec. 97.388 for
any control period after the date on which the CAIR NOX
Ozone Season opt-in unit becomes a CAIR NOX Ozone Season
unit under Sec. 97.304; and
(B) If the date on which the CAIR NOX Ozone Season opt-
in unit becomes a CAIR NOX Ozone Season unit under Sec.
97.304 is not September 30, the CAIR NOX Ozone Season
allowances allocated to the CAIR NOX Ozone Season opt-in
unit under Sec. 97.388 for the control period that includes the date
on which the CAIR NOX Ozone Season opt-in unit becomes a
CAIR NOX Ozone Season unit under Sec. 97.304, multiplied by
the ratio of the number of days, in the control period, starting with
the date on which the CAIR NOX Ozone Season opt-in unit
becomes a CAIR NOX Ozone Season unit under Sec. 97.304
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
Ozone Season unit that becomes a CAIR NOX Ozone Season unit
under ( 97.304 contains the CAIR NOX Ozone Season 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 Ozone Season opt-in unit becomes a CAIR NOX
Ozone Season unit under Sec. 97.304, the CAIR NOX Ozone
Season opt-in unit will be allocated CAIR NOX Ozone Season
allowances under Sec. 97.342.
(ii) If the date on which the CAIR NOX Ozone Season opt-
in unit becomes a CAIR NOX Ozone Season unit under Sec.
97.304 is not September 30, the following amount of CAIR NOX
Ozone Season allowances will be allocated to the CAIR NOX
Ozone Season opt-in unit (as a CAIR NOX Ozone Season unit)
under Sec. 97.342 for the control period that includes the date on
which the CAIR NOX Ozone Season opt-in unit becomes a CAIR
NOX Ozone Season unit under Sec. 97.304:
(A) The amount of CAIR NOX Ozone Season allowances
otherwise allocated to the CAIR NOX Ozone Season opt-in unit
(as a CAIR NOX Ozone Season unit) under Sec. 97.342 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 Ozone Season
opt-in unit becomes a CAIR NOX Ozone Season unit under Sec.
97.304, divided by the total number of days in the control period; and
(C) Rounded to the nearest whole allowance as appropriate.
Sec. 97.388 CAIR NOX Ozone Season allowance allocations to
CAIR NOX Ozone Season opt-in units.
(a) Timing requirements. (1) When the CAIR opt-in permit is issued
under Sec. 97.384(e), the permitting authority will allocate CAIR
NOX Ozone Season allowances to the CAIR NOX Ozone
Season opt-in unit, and submit to the Administrator the allocation for
the control period in which a CAIR NOX Ozone Season opt-in
unit enters the CAIR NOX Ozone Season Trading Program under
Sec. 97.384(g), in accordance with paragraph (b) or (c) of this
section.
(2) By no later than July 31 of the control period after the
control period in which a CAIR NOX Ozone Season opt-in unit
enters the CAIR NOX Ozone Season Trading Program under Sec.
97.384(g) and July 31 of each year thereafter, the permitting authority
will allocate CAIR NOX Ozone Season allowances to the CAIR
NOX Ozone Season 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
Ozone Season 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 Ozone Season opt-in unit is to be allocated CAIR
NOX Ozone Season allowances, the permitting authority will
allocate in accordance with the following procedures, if provided in a
State implementation plan revision submitted in accordance with Sec.
51.123(ee)(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 Ozone Season allowance allocation will be the lesser of:
(i) The CAIR NOX Ozone Season opt-in unit's baseline
heat input determined under Sec. 97.384(c); or
(ii) The CAIR NOX Ozone Season opt-in unit's heat input,
as determined in accordance with subpart HHHH 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
Ozone Season opt-in unit enters the CAIR NOX Ozone Season
Trading Program under Sec. 97.384(g).
(2) The NOX emission rate (in lb/mmBtu) used for
calculating CAIR NOX Ozone Season allowance allocations will
be the lesser of:
(i) The CAIR NOX Ozone Season opt-in unit's baseline
NOX emissions rate (in lb/mmBtu) determined under Sec.
97.384(d) and multiplied by 70 percent; or
(ii) The most stringent State or Federal NOX emissions
limitation applicable to the CAIR NOX Ozone Season opt-in
unit at any time during the control period for which CAIR
NOX Ozone Season allowances are to be allocated.
(3) The permitting authority will allocate CAIR NOX
Ozone Season allowances to the CAIR NOX Ozone Season 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 Sec. 97.383 (a)(5)) providing for, allocation to a CAIR
NOX Ozone Season opt-in unit of CAIR NOX Ozone
Season allowances under this paragraph (subject to the conditions in
Sec. Sec. 97.384(h) and 97.386(g)), the permitting authority will
allocate to the CAIR NOX Ozone Season opt-in unit as
follows, if provided in a State implementation plan revision submitted
in accordance with Sec. 51.123(ee)(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 Ozone Season opt-in unit is to be allocated CAIR
NOX Ozone Season allowances,
(i) The heat input (in mmBtu) used for calculating CAIR
NOX Ozone Season allowance allocations will be determined as
described in paragraph (b)(1) of this section.
[[Page 25469]]
(ii) The NOX emission rate (in lb/mmBtu) used for
calculating CAIR NOX Ozone Season allowance allocations will
be the lesser of:
(A) The CAIR NOX Ozone Season opt-in unit's baseline
NOX emissions rate (in lb/mmBtu) determined under Sec.
97.384(d); or
(B) The most stringent State or Federal NOX emissions
limitation applicable to the CAIR NOX Ozone Season opt-in
unit at any time during the control period in which the CAIR
NOX Ozone Season opt-in unit enters the CAIR NOX
Ozone Season Trading Program under Sec. 97.384(g).
(iii) The permitting authority will allocate CAIR NOX
Ozone Season allowances to the CAIR NOX Ozone Season 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 Ozone Season opt-in unit is to be allocated CAIR
NOX Ozone Season allowances,
(i) The heat input (in mmBtu) used for calculating the CAIR
NOX Ozone Season 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 Ozone Season allowance allocation
will be the lesser of:
(A) 0.15 lb/mmBtu;
(B) The CAIR NOX Ozone Season opt-in unit's baseline
NOX emissions rate (in lb/mmBtu) determined under Sec.
97.384(d); or
(C) The most stringent State or Federal NOX emissions
limitation applicable to the CAIR NOX Ozone Season opt-in
unit at any time during the control period for which CAIR
NOX Ozone Season allowances are to be allocated.
(iii) The permitting authority will allocate CAIR NOX
Ozone Season allowances to the CAIR NOX Ozone Season 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 Sec. 51.123(ee)(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 Ozone Season opt-in unit,
the CAIR NOX Ozone Season allowances allocated by the
permitting authority to the CAIR NOX Ozone Season opt-in
unit under paragraph (a)(1) of this section.
(2) By September 1 of the control period in which a CAIR
NOX Ozone Season opt-in unit enters the CAIR NOX
Ozone Season Trading Program under Sec. 97.384(g) and September 1 of
each year thereafter, the Administrator will record, in the compliance
account of the source that includes the CAIR NOX Ozone
Season opt-in unit, the CAIR NOX Ozone Season allowances
allocated by the permitting authority to the CAIR NOX Ozone
Season opt-in unit under paragraph (a)(2) of this section.
Appendix A to Subpart IIII of Part 97--States With Approved State
Implementation Plan Revisions Concerning CAIR NOX Ozone
Season Opt-in Units
1. The following States have State Implementation Plan revisions
under Sec. 51.123(ee)(3) of this chapter approved by the
Administrator and establishing procedures providing for CAIR
NOX Ozone Season opt-in units under subpart IIII of this
part and allocation of CAIR NOX Ozone Season allowances
to such units under Sec. 97.388(b):
[Reserved]
2. The following States have State Implementation Plan revisions
under Sec. 51.123(ee)(3) of this chapter approved by the
Administrator and establishing procedures providing for CAIR
NOX Ozone Season opt-in units under subpart IIII of this
part and allocation of CAIR NOX Ozone Season allowances
to such units under Sec. 97.388(c):
[Reserved]
[FR Doc. 06-2692 Filed 4-27-06; 8:45 am]
BILLING CODE 6560-50-P