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Rule To Reduce Interstate Transport of Fine Particulate Matter and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program; Revisions to the NOX SIP Call [[pp. 25311-25360]]
Note: EPA no longer updates this information, but it may be useful as a reference or resource.
[Federal Register: May 12, 2005 (Volume 70, Number 91)]
[Rules and Regulations]
[Page 25311-25360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr12my05-19]
[[pp. 25311-25360]]
Rule To Reduce Interstate Transport of Fine Particulate Matter
and Ozone (Clean Air Interstate Rule); Revisions to Acid Rain Program;
Revisions to the NOX SIP Call
[[Continued from page 25310]]
[[Page 25311]]
comparison to the estimated premature mortality benefits estimates).
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\177\ Banzhaf, Spencer, Dallas Burtraw, David Evans, and Alan
Krupnick. ``Valuation of Natural Resource Improvements in the
Adirondacks,'' Resources for the Future (RFF), September 2004.
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ii. Acid Deposition and Forest Ecosystem Impacts
Current understanding of the effects of acid deposition on forest
ecosystems focuses on the effects of ecological processes affecting
plant uptake, retention, and cycling of nutrients within forest
ecosystems. Recent studies indicate that acid deposition is at least
partially responsible for decreases in base cations (calcium,
magnesium, potassium, and others) from soils in the northeastern and
southeastern United States. Losses of calcium from forest soils and
forested watersheds have now been documented as a sensitive early
indicator of soil response to acid deposition for a wide range of
forest soils in the United States.
In red spruce stands, a clear link exists between acid deposition,
calcium supply, and sensitivity to abiotic stress. Red spruce uptake
and retention of calcium is impacted by acid deposition in two main
ways: Leaching of important stores of calcium from needles and
decreased root uptake of calcium due to calcium depletion from the soil
and aluminum mobilization. These changes increase the sensitivity of
red spruce to winter injuries under normal winter conditions in the
Northeast, result in the loss of needles, slow tree growth, and impair
the overall health and productivity of forest ecosystems in many areas
of the eastern United States. In addition, recent studies of sugar
maple decline in the Northeast demonstrate a link between low base
cation availability, high levels of aluminum and manganese in the soil,
and increased levels of tree mortality due to native defoliating
insects.
Although sulfate is the primary cause of base cation leaching,
nitrate is a significant contributor in watersheds that are nearly
nitrogen saturated. Base cation depletion is a cause for concern
because of the role these ions play in surface water acid
neutralization and their importance as essential nutrients for tree
growth (calcium, magnesium and potassium).
This regulatory action will decrease acid deposition in the
transport region and is likely to have positive effects on the health
and productivity of forest systems in the region.
iii. Coastal Ecosystems
Since 1990, a large amount of research has been conducted on the
impact of nitrogen deposition to coastal waters. Nitrogen is often the
limiting nutrient in coastal ecosystems. Increasing the levels of
nitrogen in coastal waters can cause significant changes to those
ecosystems. In recent decades, human activities have accelerated
nitrogen nutrient inputs, causing excessive growth of algae and leading
to degraded water quality and associated impairments of estuarine and
coastal resources.
Atmospheric deposition of nitrogen is a significant source of
nitrogen to many estuaries. The amount of nitrogen entering estuaries
due to atmospheric deposition varies widely, depending on the size and
location of the estuarine watershed and other sources of nitrogen in
the watershed. There are a few estuaries where atmospheric deposition
of nitrogen contributes well over 40 percent of the total nitrogen
load; however, in most estuaries for which estimates exist, the
contribution from atmospheric deposition ranges from 15-30 percent. The
area of the country with the highest air deposition rates (30 percent
deposition rates) includes many estuaries along the northeast seaboard
from Massachusetts to the Chesapeake Bay and along the central Gulf of
Mexico coast.
In 1999, National Oceanic and Atmospheric Administration (NOAA)
published the results of a 5-year national assessment of the severity
and extent of estuarine eutrophication. An estuary is defined as the
inland arm of the sea that meets the mouth of a river. The 138
estuaries characterized in the study represent more than 90 percent of
total estuarine water surface area and the total number of U.S.
estuaries. The study found that estuaries with moderate to high
eutrophication represented 65 percent of the estuarine surface area.
Eutrophication is of particular concern in coastal areas with poor
or stratified circulation patterns, such as the Chesapeake Bay, Long
Island Sound, and the Gulf of Mexico. In such areas, the
``overproduced'' algae tends to sink to the bottom and decay, using all
or most of the available oxygen and thereby reducing or eliminating
populations of bottom-feeder fish and shellfish, distorting the normal
population balance between different aquatic organisms, and in extreme
cases, causing dramatic fish kills. Severe and persistent
eutrophication often directly impacts human activities. For example,
fishery resource losses can be caused directly by fish kills associated
with low dissolved oxygen and toxic blooms. Declines in tourism occur
when low dissolved oxygen causes noxious smells and floating mats of
algal blooms create unfavorable aesthetic conditions. Risks to human
health increase when the toxins from algal blooms accumulate in edible
fish and shellfish, and when toxins become airborne, causing
respiratory problems due to inhalation. According to the NOAA report,
more than half of the nation's estuaries have moderate to high
expressions of at least one of these symptoms'an indication that
eutrophication is well developed in more than half of U.S. estuaries.
This rule is anticipated to reduce nitrogen deposition in the CAIR
region. Thus, reductions in the levels of nitrogen deposition will have
a positive impact upon current eutrophic conditions in estuaries and
coastal areas in the region. While we are unable to monetize the
benefits of such reductions, the Chesapeake Bay Program estimated the
reduced mass of delivered nitrogen loads likely to result from the
CAIR, based upon the CAIR proposal deposition estimates published in
January 2004. Atmospheric deposition of nitrogen accounts for a
significant portion of the nitrogen loads to the Chesapeake with 28
percent of the nitrogen loads from the watershed coming from air
deposition. Based upon the CAIR proposal, nitrogen deposition rates
published in the January 2004 proposal, the Chesapeake Bay Program
finds that the CAIR will likely reduce the nitrogen loads to the Bay by
10 million pounds per year by 2010.\178\ These substantial nitrogen
load reductions more than fulfill the EPA's commitment to reduce
atmospheric deposition delivered to the Chesapeake Bay by 8 million pounds.
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\178\ Sweeney, Jeff. ``EPA's Chesapeake Bay Program Air
Strategy.'' October 26, 2004.
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b. Are There Health or Welfare Disbenefits of the CAIR That Have Not
Been Quantified?
In contrast to the additional benefits of the rule discussed above,
it is also possible that this rule will result in disbenefits in some
areas of the region. Current levels of nitrogen deposition in these
areas may provide passive fertilization for forest and terrestrial
ecosystems where nutrients are a limiting factor and for some croplands.
The effects of ozone and PM on radiative transfer in the atmosphere
can also lead to effects of uncertain magnitude and direction on the
penetration of ultraviolet light and climate. Ground level ozone makes
up a small percentage of total atmospheric ozone (including the
stratospheric layer) that attenuates penetration of ultraviolet--b
(UVb) radiation to the ground. The EPA's past evaluation of the
information indicates that potential disbenefits would be small,
variable, and with too many uncertainties to attempt quantification of
relatively
[[Page 25312]]
small changes in average ozone levels over the course of a year (EPA,
2005a). The EPA's most recent provisional assessment of the currently
available information indicates that potential but unquantifiable
benefits may also arise from ozone-related attenuation of UVb radiation
(EPA, 2005b). Sulfate and nitrate particles also scatter UVb, which can
decrease exposure of horizontal surfaces to UVb, but increase exposure
of vertical surfaces. In this case as well, both the magnitude and
direction of the effect of reductions in sulfate and nitrate particles
are too uncertain to quantify (EPA, 2004). Ozone is a greenhouse gas,
and sulfates and nitrates can reduce the amount of solar radiation
reaching the earth, but EPA believes that we are unable to quantify any
net climate-related disbenefit or benefit associated with the combined
ozone and PM reductions in this rule.
Table X-4.--Unquantified and Non-Monetized Effects of the Clean Air
Interstate Rule
------------------------------------------------------------------------
Effects not included in primary
Pollutant/effects estimates--Changes in:
------------------------------------------------------------------------
Ozone Health \a\............. Premature mortality \b\
Chronic respiratory damage
Premature aging of the lungs
Non-asthma respiratory emergency room
visits
Increased exposure to UVb
Ozone Welfare................ Yields for
-commercial forests
-fruits and vegetables
-commercial and non-commercial crops
Damage to urban ornamental plants
Impacts on recreational demand from
damaged forest aesthetics
Ecosystem functions
Increased exposure to UVb
PM Health \c\................ Premature mortality--short term exposures
\d\
Low birth weight
Pulmonary function
Chronic respiratory diseases other than
chronic bronchitis
Non-asthma respiratory emergency room
visits
Exposure to UVb (+/-) \e\
PM Welfare................... Visibility in many Class I areas
Residential and recreational visibility
in non-Class I areas
Soiling and materials damage
Damage to ecosystem functions
Exposure to UVb (+/-) \e\
Nitrogen and Sulfate Commercial forests due to acidic sulfate
Deposition Welfare. and nitrate
deposition
Commercial freshwater fishing due to
acidic deposition
Recreation in terrestrial ecosystems due
to acidic deposition
Existence values for currently healthy
ecosystems
Commercial fishing, agriculture, and
forests due to nitrogen deposition
Recreation in estuarine ecosystems due to
nitrogen deposition
Ecosystem functions
Passive fertilization
Mercury Health............... Incidences of neurological disorders
Incidences of learning disabilities
Incidences of developmental delays
Potential reproductive effects \f\
Potential cardiovascular effects,\f\
including:
-Altered blood pressure regulation \f\
-Increased heart rate variability \f\
-Myocardial infarction \f\
Mercury Deposition Welfare... Impact on birds and mammals (e.g.,
reproductive effects)
Impacts to commercial, subsistence, and
recreational fishing
------------------------------------------------------------------------
Notes:
\a\ In addition to primary economic endpoints, there are a number of
biological responses that have been associated with ozone health
effects including increased airway responsiveness to stimuli,
inflamation in the lung, acute inflammation and respiratory cell
damage, and increased susceptibility to respiratory infection. The
public health impact of these biological responses may be partly
represented by our quantified endpoints.
\b\ Premature mortality associated with ozone is not currently included
in the primary analysis. Recent evidence suggests that short-term
exposures to ozone may have a significant effect on daily mortality
rates, independent of exposure to PM. EPA is currently conducting a
series of meta-analyses of the ozone mortality epidemiology
literature. EPA will consider including ozone mortality in primary
benefits analyses once a peer reviewed methodology is available.
\c\ In addition to primary economic endpoints, there are a number of
biological responses that have been associated with PM health effects
including morphological changes and altered host defense mechanisms.
The public health impact of these biological responses may be partly
represented by our quantified endpoints.
\d\ While some of the effects of short term exposures are likely to be
captured in the estimates, there may be premature mortality due to
short term exposure to PM not captured in the cohort study upon which
the primary analysis is based.
\e\ May result in benefits or disbenefits.
\f\ These are potential effects as the literature is insufficient.
[[Page 25313]]
B. Paperwork Reduction Act
In compliance with the Paperwork Reduction Act (44 U.S.C. 3501 et
seq.), EPA submitted a proposed Information Collection Request (ICR)
(EPA ICR number 2512.01) to the OMB for review and approval on July 19,
2004 (FR 42720-42722). The ICR describes the nature of the information
collection and its estimated burden and cost associated with the 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 EPA solicited comments on specific aspects of the information
collection. The purpose of the ICR is to estimate the anticipated
monitoring, reporting, and recordkeeping burden estimates and
associated costs for States, local governments, and sources that are
expected to result from the CAIR.
The recordkeeping and reporting burden to sources resulting from
States choosing to participate in a regional cap and trade program are
expected to be less than $42 million annually at the time the monitors
are implemented. This estimate includes the annualized cost of
installing and operating appropriate SO2 and NOX
emissions monitoring equipment to measure and report the total
emissions of these pollutants from affected EGUs serving generators
greater than 25 megawatt electrical. The burden to State and local air
agencies includes any necessary SIP revisions, performing monitoring
certification, and fulfilling audit responsibilities.
In accordance with the Paperwork Reduction Act, on July 19, 2004,
an ICR was made available to the public for comment. The 60-day comment
period expired September 19, 2004 with no public comments received
specific to the ICR.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. Sec. 601 et seq.)(RFA),
as amended by the Small Business Regulatory Enforcement Fairness Act
(Pub. L. 104-121)(SBREFA), provides that whenever an agency is required
to publish a general notice of rulemaking, it must prepare and make
available an initial regulatory flexibility analysis, unless it
certifies that the rule, if promulgated, will not have ``a significant
economic impact on a substantial number of small entities.'' 5 U.S.C.
605(b). Small entities include small businesses, small organizations,
and small governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business that is
identified by the North American Industry Classification System (NAICS)
Code, as defined by the Small Business Administration (SBA); (2) a
small governmental jurisdiction that is a government of a city, county,
town, school district or special district with a population of less
than 50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field. Table X-5 lists entities potentially impacted by
this rule with applicable NAICS code.
X-5.--Potentially Regulated Categories and Entities
------------------------------------------------------------------------
\1\ NAICS Examples of potentially
Category code regulated entities
------------------------------------------------------------------------
Industry.......................... 221112 Fossil fuel-fired
electric utility steam
generating units.
Federal government................ \2\ Fossil fuel-fired
221112 electric utility steam
generating units owned
by the Federal
government.
State/local/Tribal government..... \2\ Fossil fuel-fired
221112 electric utility steam
generating units owned
by municipalities.
921150 Fossil fuel-fired
electric utility steam
generating units in
Indian Country.
------------------------------------------------------------------------
\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.
According to the SBA size standards for NAICS code 221112
Utilities-Fossil Fuel Electric Power Generation, a firm is small if,
including its affiliates, it is primarily engaged in the generation,
transmission, and or distribution of electric energy for sale and its
total electric output for the preceding fiscal year did not exceed 4
million megawatt hours.
Courts have interpreted the RFA to require a regulatory flexibility
analysis only when small entities will be subject to the requirements
of the rule. See Michigan v. EPA, 213 F.3d 663, 668-69 (DC Cir., 2000),
cert. den. 121 S.Ct. 225, 149 L.Ed.2d 135 (2001).
This rule would not establish requirements applicable to small
entities. Instead, it would require States to develop, adopt, and
submit SIP revisions that would achieve the necessary SO2
and NOX emissions reductions, and would leave to the States
the task of determining how to obtain those reductions, including which
entities to regulate. Moreover, because affected States would have
discretion to choose the sources to regulate and how much emissions
reductions each selected source would have to achieve, EPA could not
predict the effect of the rule on small entities. Although not required
by the RFA, the Agency has conducted a small business analysis.
Overall, 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 the CAIR 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.
The EPA modeling identified 264 small entities within the CAIR
region based upon the definition of small entity outlined above. From
this analysis, EPA excluded 189 small entities that were not projected
to have at least one unit with a generating capacity of 25 MW or great
operating in the base case. Thus, we found that 75 small entities may
potentially be affected by the CAIR. Of these 75 small entities, 28 may
experience compliance costs in excess of one percent of revenues in
2010, and 46 may in 2015, based on the Agency's assumptions of how the
affected States implement control measures to meet their emissions
budgets as set forth in this rulemaking. Potentially affected small
entities experiencing compliance costs in excess of 1 percent of
revenues have
[[Page 25314]]
some potential for significant impact resulting from implementation of
the CAIR. However, it is the Agency's position that because none of the
affected entities currently operate in a competitive market
environment, they should be able to pass the costs of complying with
the CAIR on to rate-payers. Moreover, the decision to include only
units greater than 25 MW in size exempts 185 small entities that would
otherwise be potentially affected by the CAIR.
Two other points should be considered when evaluating the impact of
the CAIR, specifically, and cap and trade programs more generally, on
small entities. First, under the CAIR, the cap and trade program is
designed such that States determine how NOX allowances are
to be allocated across units. A State that wishes to mitigate the
impact of the rule on small entities might choose to allocate
NOX allowances in a manner that is favorable to small
entities. Finally, 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 (Pub. L. 104-
4) (UMRA), 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 any proposed or final rule that ``includes
any Federal mandate that may result in the expenditure by State, local,
and Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more * * * in any one year.'' A ``Federal mandate'' is
defined under section 421(6), 2 U.S.C. 658(6), to include a ``Federal
intergovernmental mandate'' and a ``Federal private sector mandate.'' A
``Federal intergovernmental mandate,'' in turn, is defined to include a
regulation that ``would impose an enforceable duty upon State, Local,
or Tribal governments,'' section 421(5)(A)(i), 2 U.S.C. 658(5)(A)(i),
except for, among other things, a duty that is ``a condition of Federal
assistance,'' section 421(5)(A)(i)(I). A ``Federal private sector
mandate'' includes a regulation that ``would impose an enforceable duty
upon the private sector,'' with certain exceptions, section 421(7)(A),
2 U.S.C. 658(7)(A).
Before promulgating an EPA rule for which a written statement is
needed under section 202 of the UMRA, section 205, 2 U.S.C. 1535, of
the UMRA generally requires EPA to identify and consider a reasonable
number of regulatory alternatives and adopt the least costly, most
cost-effective, or least burdensome alternative that achieves the
objectives of the rule.
The EPA prepared a written statement for the final rule consistent
with the requirements of section 202 of the UMRA. Furthermore, as EPA
stated in the rule, EPA is not directly establishing any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments. Thus, EPA is not obligated
to develop under section 203 of the UMRA a small government agency
plan. Furthermore, in a manner consistent with the intergovernmental
consultation provisions of section 204 of the UMRA, EPA carried out
consultations with the governmental entities affected by this rule.
For several reasons, however, EPA is not reaching a final
conclusion as to the applicability of the requirements of UMRA to this
rulemaking action. First, it is questionable whether a requirement to
submit a SIP revision would constitute a Federal mandate in any case.
The obligation for a State to revise its SIP that arises out of section
110(a) of the CAA is not legally enforceable by a court of law, and at
most is a condition for continued receipt of highway funds. Therefore,
it is possible to view an action requiring such a submittal as not
creating any enforceable duty within the meaning of section
421(5)(9a)(I) of UMRA (2 U.S.C. 658 (a)(I)). Even if it did, the duty
could be viewed as falling within the exception for a condition of
Federal assistance under section 421(5)(a)(i)(I) of UMRA (2 U.S.C.
658(5)(a)(i)(I)).
As noted earlier, however, notwithstanding these issues, EPA
prepared for the final rule the statement that would be required by
UMRA if its statutory provisions applied, and EPA has consulted with
governmental entities as would be required by UMRA. Consequently, it is
not necessary for EPA to reach a conclusion as to the applicability of
the UMRA requirements.
The EPA conducted an analysis of the economic impacts anticipated
from the CAIR for government-owned entities. The modeling conducted
using the IPM projects that about 340 MW of municipality-owned capacity
(about 0.4 percent of all subdivision, State and municipality capacity
in the CAIR region) would be uneconomic to maintain under the CAIR,
beyond what is projected in the base case. In practice, however, the
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. For the most part, these units are small and
infrequently used generating units that are dispersed throughout the
CAIR region.
The EPA modeling identified 265 State or municipally-owned
entities, as well as subdivisions, within the CAIR region. The EPA
excluded from the analysis government-owned entities that were not
projected to have at least one unit with generating capacity of 25 MW
or greater in the base case. Thus, we excluded 184 entities from the
analysis. We found that 81 government entities will be potentially
affected by CAIR. Of the 81 government entities, 20 may experience
compliance costs in excess of 1 percent of revenues in 2010, and 39 may
in 2015, based on our assumptions of how the affected States implement
control measures to meet their emissions budgets as set forth in this
rulemaking.
Government entities projected to experience compliance costs in
excess of 1 percent of revenues have some potential for significant
impact resulting from implementation of the CAIR. However, as noted
above, it is EPA's position that because these government entities can
pass on their costs of compliance to rate-payers, they will not be
significantly impacted. Furthermore, the decision to include only units
greater than 25 MW in size exempts 179 government entities that would
otherwise be potentially affected by the CAIR.
The above points aside, potentially adverse impacts of the CAIR on
State and municipality-owned entities could be limited by the fact that
the cap and trade program is designed such that States determine how
NOX allowances are to be allocated across units. A State
that wishes to mitigate the impact of the rule on State or
municipality-owned entities might choose to allocate NOX
allowances in a manner that is favorable to these entities. Finally,
the use of cap and trade in general will limit impacts on entities
owned by small governments relative to a less flexible command-and-
control program.
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
[[Page 25315]]
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 will 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. The CAA establishes the
relationship between the Federal Government and the States, and this
rule does not impact that relationship. Thus, Executive Order 13132
does not apply to this rule. In the spirit of Executive Order 13132,
and consistent with EPA policy to promote communications between EPA
and State and local governments, EPA specifically solicited comment on
this rule from State and local officials.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (59 FR 22951, 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 that are precurors for
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 this rule. The Tribal
Authority Rule (TAR) give 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's rule could have implications for that Tribe, but it would
not impose substantial direct costs upon the Tribe, nor preempt Tribal
law. As provided above, EPA has estimated that the total annual private
costs for the rule for the CAIR region as implemented by State, local,
and Tribal governments is 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 this rule 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 be attributed to inspecting regulated facilities and enforcing
adopted regulations.
Although Executive Order 13175 does not apply to this rule, EPA
consulted with Tribal officials in developing this rule. The EPA has
encouraged Tribal input at an early stage. Also, EPA held periodic
meetings with the States and the Tribes during the technical
development of this rule. 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 this rule. The EPA has
provided briefings for Tribal representatives and the newly formed
National Tribal Air Association (NTAA), and other national Tribal
forums. Input from Tribal representatives has been taken into
consideration in development of this rule.
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 final 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 strategies in this rule will further
improve air quality and will 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 final
rulemaking, and notices of final rulemaking (1) (i) a significant
regulatory action under Executive Order 12866 or any successor order,
and (ii) likely to have a significant adverse effect on the supply,
distribution, or use of energy; or (2) 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.
If States choose to obtain the emissions reductions required by
this rule by regulating EGUs, EPA projects that approximately 5.3 GWs
of coal-fired generation may be removed from operation by 2010. In
practice, however, the 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. For the most part, these
units are small and infrequently used generating units that are
dispersed throughout the CAIR region. Less conservative assumptions
regarding natural gas prices or electricity demand would create a
greater incentive to keep these units operational. The EPA projects
that the
[[Page 25316]]
average annual electricity price will increase by less than 2.7 percent
in the CAIR region and that natural gas prices will increase by less
than 1.6 percent. The EPA does not believe that this rule will have any
other impacts that exceed the significance criteria.
The EPA believes that a number of features of today's rulemaking
serve to reduce its impact on energy supply. First, the optional
trading program provides considerable flexibility to the power sector
and enables industry to comply with the emission reduction requirements
in the most cost-effective manner, thus minimizing overall costs and
the ultimate impact on energy supply. The ability to use banked
allowances from the existing title IV SO2 trading program
and the NOX SIP Call Trading Program also provide additional
flexibility. Second, the CAIR caps are set in two phases and provide
adequate time for EGUs to install pollution controls. For more details
concerning energy impacts, see the Regulatory Impact Analysis for the
Final Clean Air Interstate Rule (March 2005).
I. National Technology Transfer Advancement Act
Section 12(d) of the National Technology Transfer and 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.
This rule would require all sources that participate in the trading
program 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,\179\ agencies 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)
---------------------------------------------------------------------------
\179\ U.S. Environmental Protection Agency, 1998. Guidance for
Incorporating Environmental Justice Concerns in EPA's NEPA
Compliance Analyses. Office of Federal Activities, Washington, DC,
April, 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 to
lead to reductions in air pollution and exposures generally. For this
reason, 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. The 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).
L. Judicial Review
Section 307(b)(1) of the CAA indicates which Federal Courts of
Appeal have venue for petitions of review of final actions by EPA. This
Section provides, in part, that petitions for review must be filed in
the Court of Appeals for the District of Columbia Circuit if (i) the
agency action consists of ``nationally applicable regulations
promulgated, or final action taken, by the Administrator,'' or (ii)
such action is locally or regionally applicable, if ``such action is
based on a determination of nationwide scope or effect and if in taking
such action the Administrator finds and publishes that such action is
based on such a determination.''
Any final action related to CAIR is ``nationally applicable''
within the meaning of section 307(b)(1). As an initial matter, through
this rule, EPA interprets section 110 of the CAA, a provision which has
nationwide applicability. In addition, CAIR applies to 28 States and
the District of Columbia. CAIR is also based on a common core of
factual findings and analyses concerning the transport of pollutants
between the different States subject to it. Finally, EPA has
established uniform approvability criteria that would be applied to all
States subject to CAIR. For these reasons, the Administrator also is
determining that any final action regarding CAIR is of nationwide scope
and effect for purposes of section 307(b)(1). Thus, any petitions for
review of final actions regarding CAIR must be filed in the Court of
Appeals for the District of Columbia Circuit within 60 days from the
date final action is published in the Federal Register.
List of Subjects
40 CFR Part 51
Administrative practice and procedure, Air pollution control,
Intergovernmental relations, Nitrogen oxides, Ozone, Particulate
matter, Regional haze, Reporting and recordkeeping requirements, Sulfur
dioxide.
40 CFR Parts 72, 73, 74, 77 and 78
Acid rain, Administrative practice and procedure, Air pollution
control, Electric utilities, Intergovernmental
[[Page 25317]]
relations, Nitrogen oxides, Reporting and recordkeeping requirements,
Sulfur dioxide.
40 CFR Part 96
Administrative practice and procedure, Air pollution control,
Electric utilities, Nitrogen oxides, Reporting and recordkeeping
requirements, Sulfur dioxide.
Dated: March 10, 2005.
Stephen L. Johnson,
Acting Administrator.
? Title 40, chapter I, of the Code of Federal Regulations is amended as
follows:
PART 51--[AMENDED]
? 1. The authority citation for Part 51 continues to read as follows:
Authority: 23 U.S.C. 101; 42 U.S.C. 7401-7671q.
Sec. 51.121 [Amended]
? 2. Section 51.121 is amended by adding a new paragraph (r) to read as
follows:
Sec. 51.121 Findings and requirements for submission of State
implementation plan revisions relating to emissions of oxides of
nitrogen.
* * * * *
(r)(1) Notwithstanding any provisions of paragraph (p) of this
section, subparts A through I of part 96 of this chapter, and any
State's SIP to the contrary, the Administrator will not carry out any
of the functions set forth for the Administrator in subparts A through
I of part 96 of this chapter, or in any emissions trading program in a
State's SIP approved under paragraph (p) of this section, with regard
to any ozone season that occurs after September 30, 2008.
(2) Except as provided in Sec. 51.123(bb), a State whose SIP is
approved as meeting the requirements of this section and that includes
an emissions trading program approved under paragraph (p) of this
section must revise the SIP to adopt control measures that satisfy the
same portion of the State's NOX emission reduction
requirements under this section as the State projected such emissions
trading program would satisfy.
? 3. Revise Sec. 51.122 of subpart G to read as follows:
Sec. 51.122 Emissions reporting requirements for SIP revisions
relating to budgets for NOX emissions.
(a) For its transport SIP revision under Sec. 51.121, each State
must submit to EPA NOX emissions data as described in this
section.
(b) Each revision must provide for periodic reporting by the State
of NOX emissions data to demonstrate whether the State's
emissions are consistent with the projections contained in its approved
SIP submission.
(1) Annual reporting. Each revision must provide for annual
reporting of NOX emissions data as follows:
(i) The State must report to EPA emissions data from all
NOX sources within the State for which the State specified
control measures in its SIP submission under Sec. 51.121(g) of this
part. This would include all sources for which the State has adopted
measures that differ from the measures incorporated into the baseline
inventory for the year 2007 that the State developed in accordance with
Sec. 51.121(g).
(ii) If sources report NOX emissions data to EPA
annually pursuant to a trading program approved under Sec. 51.121(p)
or pursuant to the monitoring and reporting requirements of subpart H
of 40 CFR part 75, then the State need not provide annual reporting to
EPA for such sources.
(2) Triennial reporting. Each plan must provide for triennial
(i.e., every third year) reporting of NOX emissions data
from all sources within the State.
(3) The data availability requirements in Sec. 51.116 must be
followed for all data submitted to meet the requirements of paragraphs
(b)(1) and (2) of this section.
(c) The data reported in paragraph (b) of this section for
stationary point sources must meet the following minimum criteria:
(1) For annual data reporting purposes the data must include the
following minimum elements:
(i) Inventory year.
(ii) State Federal Information Placement System code.
(iii) County Federal Information Placement System code.
(iv) Federal ID code (plant).
(v) Federal ID code (point).
(vi) Federal ID code (process).
(vii) Federal ID code (stack).
(viii) Site name.
(ix) Physical address.
(x) SCC.
(xi) Pollutant code.
(xii) Ozone season emissions.
(xiii) Area designation.
(2) In addition, the annual data must include the following minimum
elements as applicable to the emissions estimation methodology.
(i) Fuel heat content (annual).
(ii) Fuel heat content (seasonal).
(iii) Source of fuel heat content data.
(iv) Activity throughput (annual).
(v) Activity throughput (seasonal).
(vi) Source of activity/throughput data.
(vii) Spring throughput (%).
(viii) Summer throughput (%).
(ix) Fall throughput (%).
(x) Work weekday emissions.
(xi) Emission factor.
(xii) Source of emission factor.
(xiii) Hour/day in operation.
(xiv) Operations Start time (hour).
(xv) Day/week in operation.
(xvi) Week/year in operation.
(3) The triennial inventories must include the following data elements:
(i) The data required in paragraphs (c)(1) and (c)(2) of this section.
(ii) X coordinate (longitude).
(iii) Y coordinate (latitude).
(iv) Stack height.
(v) Stack diameter.
(vi) Exit gas temperature.
(vii) Exit gas velocity.
(viii) Exit gas flow rate.
(ix) SIC.
(x) Boiler/process throughput design capacity.
(xi) Maximum design rate.
(xii) Maximum capacity.
(xiii) Primary control efficiency.
(xiv) Secondary control efficiency.
(xv) Control device type.
(d) The data reported in paragraph (b) of this section for non-
point sources must include the following minimum elements:
(1) For annual inventories it must include:
(i) Inventory year.
(ii) State FIPS code.
(iii) County FIPS code.
(iv) SCC.
(v) Emission factor.
(vi) Source of emission factor.
(vii) Activity/throughput level (annual).
(viii) Activity throughput level (seasonal).
(ix) Source of activity/throughput data.
(x) Spring throughput (%).
(xi) Summer throughput (%).
(xii) Fall throughput (%).
(xiii) Control efficiency (%).
(xiv) Pollutant code.
(xv) Ozone season emissions.
(xvi) Source of emissions data.
(xvii) Hour/day in operation.
(xviii) Day/week in operation.
(xix) Week/year in operations.
(2) The triennial inventories must contain, at a minimum, all the
data required in paragraph (d)(1) of this section.
(e) The data reported in paragraph (b) of this section for mobile
sources must meet the following minimum criteria:
(1) For the annual and triennial inventory purposes, the following
data must be reported:
(i) Inventory year.
(ii) State FIPS code.
[[Page 25318]]
(iii) County FIPS code.
(iv) SCC.
(v) Emission factor.
(vi) Source of emission factor.
(vii) Activity (this must be reported for both highway and nonroad
activity. Submit nonroad activity in the form of hours of activity at
standard load (either full load or average load) for each engine type,
application, and horsepower range. Submit highway activity in the form
of vehicle miles traveled (VMT) by vehicle class on each roadway type.
Report both highway and nonroad activity for a typical ozone season
weekday day, if the State uses EPA's default weekday/weekend activity
ratio. If the State uses a different weekday/weekend activity ratio,
submit separate activity level information for weekday days and weekend
days.)
(viii) Source of activity data.
(ix) Pollutant code.
(x) Summer work weekday emissions.
(xi) Ozone season emissions.
(xii) Source of emissions data.
(2) [Reserved.]
(f) Approval of ozone season calculation by EPA. Each State must
submit for EPA approval an example of the calculation procedure used to
calculate ozone season emissions along with sufficient information for
EPA to verify the calculated value of ozone season emissions.
(g) Reporting schedules. (1) Data collection is to begin during the
ozone season one year prior to the State's NOX SIP Call
compliance date.
(2) Reports are to be submitted according to paragraph (b) of this
section and the schedule in Table 1. After 2008, trienniel reports are
to be submitted every third year and annual reports are to be submitted
each year that a trienniel report is not required.
Table 1.--Schedule for Submitting Reports
------------------------------------------------------------------------
Data collection year Type of report required
------------------------------------------------------------------------
2002....................................... Trienniel.
2003....................................... Annual.
2004....................................... Annual.
2005....................................... Trienniel.
2006....................................... Annual.
2007....................................... Annual.
2008....................................... Trienniel.
------------------------------------------------------------------------
(3) States must submit data for a required year no later than 12
months after the end of the calendar year for which the data are collected.
(h) Data Reporting Procedures. When submitting a formal
NOX budget emissions report and associated data, States
shall notify the appropriate EPA Regional Office.
(1) States are required to report emissions data in an electronic
format to EPA. Several options are available for data reporting. States
can obtain information on the current formats at the following Internet
address: http://www.epa.gov/ttn/chief, by calling the EPA Info CHIEF
help desk at (919) 541-1000 or by sending an e-mail to
info.chief@epa.gov. Because electronic reporting technology continually
changes, States are to contact the Emission Inventory Group (EIG) for
the latest specific formats.
(2) For annual reporting (not for triennial reports), a State may
have sources submit the data directly to EPA to the extent the sources
are subject to a trading program that qualifies for approval under
Sec. 51.121(q), and the State has agreed to accept data in this
format. The EPA will make both the raw data submitted in this format
and summary data available to any State that chooses this option.
(i) Definitions. As used in this section, the following words and
terms shall have the meanings set forth below:
(1) Annual emissions. Actual emissions for a plant, point, or
process, either measured or calculated.
(2) Ash content. Inert residual portion of a fuel.
(3) Area designation. The designation of the area in which the
reporting source is located with regard to the ozone NAAQS. This would
include attainment or nonattainment designations. For nonattainment
designations, the classification of the nonattainment area must be
specified, i.e., transitional, marginal, moderate, serious, severe, or
extreme.
(4) Boiler design capacity. A measure of the size of a boiler,
based on the reported maximum continuous steam flow. Capacity is
calculated in units of MMBtu/hr.
(5) Control device type. The name of the type of control device
(e.g., wet scrubber, flaring, or process change).
(6) Control efficiency. The emissions reduction efficiency of a
primary control device, which shows the amount of reductions of a
particular pollutant from a process's emissions due to controls or
material change. Control efficiency is usually expressed as a
percentage or in tenths.
(7) Day/week in operations. Days per week that the emitting process
operates.
(8) Emission factor. Ratio relating emissions of a specific
pollutant to an activity or material throughput level.
(9) Exit gas flow rate. Numeric value of stack gas flow rate.
(10) Exit gas temperature. Numeric value of an exit gas stream
temperature.
(11) Exit gas velocity. Numeric value of an exit gas stream velocity.
(12) Fall throughput (%). Portion of throughput for the 3 fall
months (September, October, November). This represents the expression
of annual activity information on the basis of four seasons, typically
spring, summer, fall, and winter. It can be represented either as a
percentage of the annual activity (e.g., production in summer is 40
percent of the year's production), or in terms of the units of the
activity (e.g., out of 600 units produced, spring = 150 units, summer =
250 units, fall = 150 units, and winter = 50 units).
(13) Federal ID code (plant). Unique codes for a plant or facility,
containing one or more pollutant-emitting sources.
(14) Federal ID code (point). Unique codes for the point of
generation of emissions, typically a physical piece of equipment.
(15) Federal ID code (stack number). Unique codes for the point
where emissions from one or more processes are released into the
atmosphere.
(16) Federal Information Placement System (FIPS). The system of
unique numeric codes developed by the government to identify States,
counties, towns, and townships for the entire United States, Puerto
Rico, and Guam.
(17) Heat content. The thermal heat energy content of a solid,
liquid, or gaseous fuel. Fuel heat content is typically expressed in
units of Btu/lb of fuel, Btu/gal of fuel, joules/kg of fuel, etc.
(18) Hr/day in operations. Hours per day that the emitting process
operates.
(19) Maximum design rate. Maximum fuel use rate based on the
equipment's or process' physical size or operational capabilities.
(20) Maximum nameplate capacity. A measure of the size of a
generator which is put on the unit's nameplate by the manufacturer. The
data element is reported in megawatts (MW) or kilowatts (KW).
(21) Mobile source. A motor vehicle, nonroad engine or nonroad
vehicle, where:
(i) Motor vehicle means any self-propelled vehicle designed for
transporting persons or property on a street or highway;
(ii) Nonroad engine means an internal combustion engine (including
the fuel system) that is not used in a motor vehicle or a vehicle used
solely for competition, or that is not subject to standards promulgated
under section 111 or section 202 of the CAA;
(iii) Nonroad vehicle means a vehicle that is powered by a nonroad
engine and that is not a motor vehicle or a vehicle used solely for
competition.
[[Page 25319]]
(22) Ozone season. The period May 1 through September 30 of a year.
(23) Physical address. Street address of facility.
(24) Point source. A non-mobile source which emits 100 tons of
NOX or more per year unless the State designates as a point
source a non-mobile source emitting at a specified level lower than 100
tons of NOX per year. A non-mobile source which emits less
NOX per year than the point source threshold is a non-point
source.
(25) Pollutant code. A unique code for each reported pollutant that
has been assigned in the EIIP Data Model. Character names are used for
criteria pollutants, while Chemical Abstracts Service (CAS) numbers are
used for all other pollutants. Some States may be using storage and
retrieval of aerometric data (SAROAD) codes for pollutants, but these
should be able to be mapped to the EIIP Data Model pollutant codes.
(26) Process rate/throughput. A measurable factor or parameter that
is directly or indirectly related to the emissions of an air pollution
source. Depending on the type of source category, activity information
may refer to the amount of fuel combusted, the amount of a raw material
processed, the amount of a product that is manufactured, the amount of
a material that is handled or processed, population, employment, number
of units, or miles traveled. Activity information is typically the
value that is multiplied against an emission factor to generate an
emissions estimate.
(27) SCC. Source category code. A process-level code that describes
the equipment or operation emitting pollutants.
(28) Secondary control efficiency (%). The emissions reductions
efficiency of a secondary control device, which shows the amount of
reductions of a particular pollutant from a process' emissions due to
controls or material change. Control efficiency is usually expressed as
a percentage or in tenths.
(29) SIC. Standard Industrial Classification code. U.S. Department
of Commerce's categorization of businesses by their products or services.
(30) Site name. The name of the facility.
(31) Spring throughput (%). Portion of throughput or activity for
the 3 spring months (March, April, May). See the definition of Fall
Throughput.
(32) Stack diameter. Stack physical diameter.
(33) Stack height. Stack physical height above the surrounding terrain.
(34) Start date (inventory year). The calendar year that the
emissions estimates were calculated for and are applicable to.
(35) Start time (hour). Start time (if available) that was
applicable and used for calculations of emissions estimates.
(36) Summer throughput (%). Portion of throughput or activity for
the 3 summer months (June, July, August). See the definition of Fall
Throughput.
(37) Summer work weekday emissions. Average day's emissions for a
typical day.
(38) VMT by Roadway Class. This is an expression of vehicle
activity that is used with emission factors. The emission factors are
usually expressed in terms of grams per mile of travel. Since VMT does
not directly correlate to emissions that occur while the vehicle is not
moving, these non-moving emissions are incorporated into EPA's MOBILE
model emission factors.
(39) Week/year in operation. Weeks per year that the emitting
process operates.
(40) Work Weekday. Any day of the week except Saturday or Sunday.
(41) X coordinate (longitude). An object's east-west geographical
coordinate.
(42) Y coordinate (latitude). An object's north-south geographical
coordinate.
? 4. Part 51 is amended by adding Sec. 51.123 to Subpart G to read as
follows:
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.
(a)(1) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1),
the Administrator determines that each State identified in paragraph
(c)(1) and (2) of this section must submit a SIP revision to comply
with the requirements of section 110(a)(2)(D)(i)(I) of the CAA, 42
U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions
prohibiting sources and other activities from emitting NOX
in amounts that will contribute significantly to nonattainment in, or
interfere with maintenance by, one or more other States with respect to
the fine particles (PM2.5) NAAQS.
(2)(a) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1),
the Administrator determines that each State identified in paragraph
(c)(1) and (3) of this section must submit a SIP revision to comply
with the requirements of section 110(a)(2)(D)(i)(I) of the CAA, 42
U.S.C. 7410(a)(2)(D)(i)(I), through the adoption of adequate provisions
prohibiting sources and other activities from emitting NOX
in amounts that will contribute significantly to nonattainment in, or
interfere with maintenance by, one or more other States with respect to
the 8-hour ozone NAAQS.
(b) For each State identified in paragraph (c) of this section, the
SIP revision required under paragraph (a) of this section will contain
adequate provisions, for purposes of complying with section
110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), only if
the SIP revision contains control measures that assure compliance with
the applicable requirements of this section.
(c) In addition to being subject to the requirements in paragraphs
(b) and (d) of this section:
(1) Alabama, Florida, Illinois, Indiana, Iowa, Kentucky, Louisiana,
Maryland, Michigan, Mississippi, Missouri, New York, North Carolina,
Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia,
Wisconsin, and the District of Columbia shall be subject to the
requirements contained in paragraphs (e) through (cc) of this section;
(2) Georgia, Minnesota, and Texas shall be subject to the
requirements in paragraphs (e) through (o) and (cc) of this section; and
(3) Arkansas, Connecticut, Delaware, Massachusetts, and New Jersey
shall be subject to the requirements contained in paragraphs (q)
through (cc) of this section.
(d)(1) The State's SIP revision under paragraph (a) of this section
must be submitted to EPA by no later than September 11, 2006.
(2) The requirements of appendix V to this part shall apply to the
SIP revision under paragraph (a) of this section.
(3) The State shall deliver 5 copies of the SIP revision under
paragraph (a) of this section to the appropriate Regional Office, with
a letter giving notice of such action.
(e) The State's SIP revision shall contain control measures and
demonstrate that they will result in compliance with the State's Annual
EGU NOX Budget, if applicable, and achieve the State's
Annual Non-EGU NOX Reduction Requirement, if applicable, for
the appropriate periods. The amounts of the State's Annual EGU
NOX Budget and Annual Non-EGU NOX Reduction
Requirement shall be determined as follows:
(1)(i) The Annual EGU NOX Budget for the State is
defined as the total amount of NOX emissions from all EGUs
in that State for a year, if the State meets the requirements of
paragraph (a)(1) of this section by imposing control measures, at least
in part, on EGUs. If the State imposes control measures
[[Page 25320]]
under this section on only EGUs, the Annual EGU NOX Budget
for the State shall not exceed the amount, during the indicated
periods, specified in paragraph (e)(2) of this section.
(ii) The Annual Non-EGU NOX Reduction Requirement, if
applicable, is defined as the total amount of NOX emission
reductions that the State demonstrates, in accordance with paragraph
(g) of this section, it will achieve from non-EGUs during the
appropriate period. If the State meets the requirements of paragraph
(a)(1) of this section by imposing control measures on only non-EGUs,
then the State's Annual Non-EGU NOX Reduction Requirement
shall equal or exceed, during the appropriate periods, the amount
determined in accordance with paragraph (e)(3) of this section.
(iii) If a State meets the requirements of paragraph (a)(1) of this
section by imposing control measures on both EGUs and non-EGUs, then:
(A) The Annual Non-EGU NOX Reduction Requirement shall
equal or exceed the difference between the amount specified in
paragraph (e)(2) of this section for the appropriate period and the
amount of the State's Annual EGU NOX Budget specified in the
SIP revision for the appropriate period; and
(B) The Annual EGU NOX Budget shall not exceed, during
the indicated periods, the amount specified in paragraph (e)(2) of this
section plus the amount of the Annual Non-EGU NOX Reduction
Requirement under paragraph (e)(1)(iii)(A) of this section for the
appropriate period.
(2) For a State that complies with the requirements of paragraph
(a)(1) of this section by imposing control measures on only EGUs, the
amount of the Annual EGU NOX Budget, in tons of
NOX per year, shall be as follows, for the indicated State
for the indicated period:
------------------------------------------------------------------------
Annual EGU NOX
Annual EGU NOX budget for
State budget for 2015 and
2009-2014 thereafter
(tons) (tons)
------------------------------------------------------------------------
Alabama................................. 69,020 57,517
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 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
------------------------------------------------------------------------
(3) For a State that complies with the requirements of paragraph
(a)(1) of this section by imposing control measures on only non-EGUs,
the amount of the Annual Non-EGU NOX Reduction Requirement,
in tons of NOX per year, shall be determined, for the State
for 2009 and thereafter, by subtracting the amount of the State's
Annual EGU NOX Budget for the appropriate year, specified in
paragraph (e)(2) of this section from the amount of the State's
NOX baseline EGU emissions inventory projected for the
appropriate year, specified in Table 5 of ``Regional and State
SO2 and NOX Budgets'', March 2005 (available at
http://www.epa.gov/cleanairinterstaterule).
(4)(i) Notwithstanding the State's obligation to comply with
paragraph (e)(2) or (3) of this section, the State's SIP revision may
allow sources required by the revision to implement control measures to
demonstrate compliance using credit issued from the State's compliance
supplement pool, as set forth in paragraph (e)(4)(ii) of this section.
(ii) The State-by-State amounts of the compliance supplement pool
are as follows:
------------------------------------------------------------------------
Compliance
State supplement
pool
------------------------------------------------------------------------
Alabama................................................. 10,166
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 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
------------------------------------------------------------------------
(iii) The SIP revision may provide for the distribution of credits
from the compliance supplement pool to sources
[[Page 25321]]
that are required to implement control measures using one or both of
the following two mechanisms:
(A) The State may issue credit from compliance supplement pool to
sources that are required by the SIP revision to implement
NOX emission control measures and that implement
NOX emission reductions in 2007 and 2008 that are not
necessary to comply with any State or federal emissions limitation
applicable at any time during such years. Such a source may be issued
one credit from the compliance supplement pool for each ton of such
emission reductions in 2007 and 2008.
(1) The State shall complete the issuance process by January 1, 2010.
(2) The emissions reductions for which credits are issued must have
been demonstrated by the owners and operators of the source to have
occurred during 2007 and 2008 and not to be necessary to comply with
any applicable State or federal emissions limitation.
(3) The emissions reductions for which credits are issued must have
been quantified by the owners and operators of the source:
(i) For EGUs and for fossil-fuel-fired non-EGUs that are boilers or
combustion turbines with a maximum design heat input greater than 250
mmBut/hr, using emissions data determined in accordance with subpart H
of part 75 of this chapter; and
(ii) For non-EGUs not described in paragraph (e)(4)(iii)(A)(3)(i)
of this section, using emissions data determined in accordance with
subpart H of part 75 of this chapter or, if the State demonstrates that
compliance with subpart H of part 75 of this chapter is not
practicable, determined, to the extent practicable, with the same
degree of assurance with which emissions data are determined for
sources subject to subpart H of part 75.
(4) If the SIP revision contains approved provisions for an
emissions trading program, the owners and operators of sources that
receive credit according to the requirements of this paragraph may
transfer the credit to other sources or persons according to the
provisions in the emissions trading program.
(B) The State may issue credit from the compliance supplement pool
to sources that are required by the SIP revision to implement
NOX emission control measures and whose owners and operators
demonstrate a need for an extension, beyond 2009, of the deadline for
the source for implementing such emission controls.
(1) The State shall complete the issuance process by January 1, 2010.
(2) The State shall issue credit to a source only if the owners and
operators of the source demonstrate that:
(i) For a source used to generate electricity, implementation of
the SIP revision's applicable control measures by 2009 would create
undue risk for the reliability of the electricity supply. This
demonstration must include a showing that it would not be feasible for
the owners and operators of the source to obtain a sufficient amount of
electricity, to prevent such undue risk, from other electricity
generation facilities during the installation of control technology at
the source necessary to comply with the SIP revision.
(ii) For a source not used to generate electricity, compliance with
the SIP revision's applicable control measures by 2009 would create
undue risk for the source or its associated industry to a degree that
is comparable to the risk described in paragraph (e)(4)(iii)(B)(2)(i)
of this section.
(iii) This demonstration must include a showing that it would not
be possible for the source to comply with applicable control measures
by obtaining sufficient credits under paragraph (e)(4)(iii)(A) of this
section, or by acquiring sufficient credits from other sources or
persons, to prevent undue risk.
(f) Each SIP revision must set forth control measures to meet the
amounts specified in paragraph (e) of this section, as applicable,
including the following:
(1) A description of enforcement methods including, but not limited to:
(i) Procedures for monitoring compliance with each of the selected
control measures;
(ii) Procedures for handling violations; and
(iii) A designation of agency responsibility for enforcement of
implementation.
(2)(i) If a State elects to impose control measures on EGUs, then
those measures must impose an annual NOX mass emissions cap
on all such sources in the State.
(ii) If a State elects to impose control measures on fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then those measures must
impose an annual NOX mass emissions cap on all such sources
in the State.
(iii) If a State elects to impose control measures on non-EGUs
other than those described in paragraph (f)(2)(ii) of this section,
then those measures must impose an annual NOX mass emissions
cap on all such sources in the State or the State must demonstrate why
such emissions cap is not practicable and adopt alternative
requirements that ensure that the State will comply with its
requirements under paragraph (e) of this section, as applicable, in
2009 and subsequent years.
(g)(1) Each SIP revision that contains control measures covering
non-EGUs as part or all of a State's obligation in meeting its
requirement under paragraph (a)(1) of this section must demonstrate
that such control measures are adequate to provide for the timely
compliance with the State's Annual Non-EGU NOX Reduction
Requirement under paragraph (e) of this section and are not adopted or
implemented by the State, as of May 12, 2005, and are not adopted or
implemented by the Federal government, as of the date of submission of
the SIP revision by the State to EPA.
(2) The demonstration under paragraph (g)(1) of this section must
include the following, with respect to each source category of non-EGUs
for which the SIP revision requires control measures:
(i) A detailed historical baseline inventory of NOX mass
emissions from the source category in a representative year consisting,
at the State's election, of 2002, 2003, 2004, or 2005, or an average of
2 or more of those years, absent the control measures specified in the
SIP revision.
(A) This inventory must represent estimates of actual emissions
based on monitoring data in accordance with subpart H of part 75 of
this chapter, if the source category is subject to monitoring
requirements in accordance with subpart H of part 75 of this chapter.
(B) In the absence of monitoring data in accordance with subpart H
of part 75 of this chapter, actual emissions must be quantified, to the
maximum extent practicable, with the same degree of assurance with
which emissions are quantified for sources subject to subpart H of part
75 of this chapter and using source-specific or source-category-
specific assumptions that ensure a source's or source category's actual
emissions are not overestimated. If a State uses factors to estimate
emissions, production or utilization, or effectiveness of controls or
rules for a source category, such factors must be chosen to ensure that
emissions are not overestimated.
(C) For measures to reduce emissions from motor vehicles, emission
estimates must be based on an emissions model that has been approved by
EPA for use in SIP development and must be consistent with the planning
assumptions regarding vehicle miles
[[Page 25322]]
traveled and other factors current at the time of the SIP development.
(D) For measures to reduce emissions from nonroad engines or
vehicles, emission estimates methodologies must be approved by EPA.
(ii) A detailed baseline inventory of NOX mass emissions
from the source category in the years 2009 and 2015, absent the control
measures specified in the SIP revision and reflecting changes in these
emissions from the historical baseline year to the years 2009 and 2015,
based on projected changes in the production input or output,
population, vehicle miles traveled, economic activity, or other factors
as applicable to this source category.
(A) These inventories must account for implementation of any
control measures that are otherwise required by final rules already
promulgated, as of May 12, 2005, or adopted or implemented by any
federal agency, as of the date of submission of the SIP revision by the
State to EPA, and must exclude any control measures specified in the
SIP revision to meet the NOX emissions reduction
requirements of this section.
(B) Economic and population forecasts must be as specific as
possible to the applicable industry, State, and county of the source or
source category and must be consistent with both national projections
and relevant official planning assumptions, including estimates of
population and vehicle miles traveled developed through consultation
between State and local transportation and air quality agencies.
However, if these official planning assumptions are inconsistent with
official U.S. Census projections of population or with energy
consumption projections contained in the U.S. Department of Energy's
most recent Annual Energy Outlook, then the SIP revision must make
adjustments to correct the inconsistency or must demonstrate how the
official planning assumptions are more accurate.
(C) These inventories must account for any changes in production
method, materials, fuels, or efficiency that are expected to occur
between the historical baseline year and 2009 or 2015, as appropriate.
(iii) A projection of NOX mass emissions in 2009 and
2015 from the source category assuming the same projected changes as
under paragraph (g)(2)(ii) of this section and resulting from
implementation of each of the control measures specified in the SIP
revision.
(A) These inventories must address the possibility that the State's
new control measures may cause production or utilization, and
emissions, to shift to unregulated or less stringently regulated
sources in the source category in the same or another State, and these
inventories must include any such amounts of emissions that may shift
to such other sources.
(B) The State must provide EPA with a summary of the computations,
assumptions, and judgments used to determine the degree of reduction in
projected 2009 and 2015 NOX emissions that will be achieved
from the implementation of the new control measures compared to the
relevant baseline emissions inventory.
(iv) The result of subtracting the amounts in paragraph (g)(2)(iii)
of this section for 2009 and 2015, respectively, from the lower of the
amounts in paragraph (g)(2)(i) or (g)(2)(ii) of this section for 2009
and 2015, respectively, may be credited towards the State's Annual Non-
EGU NOX Reduction Requirement in paragraph (e)(3) of this
section for the appropriate period.
(v) Each SIP revision must identify the sources of the data used in
each estimate and each projection of emissions.
(h) Each SIP revision must comply with Sec. 51.116 (regarding data
availability).
(i) Each SIP revision must provide for monitoring the status of
compliance with any control measures adopted to meet the State's
requirements under paragraph (e) of this section as follows:
(1) The SIP revision must provide for legally enforceable
procedures for requiring owners or operators of stationary sources to
maintain records of, and periodically report to the State:
(i) Information on the amount of NOX emissions from the
stationary sources; and
(ii) Other information as may be necessary to enable the State to
determine whether the sources are in compliance with applicable
portions of the control measures;
(2) The SIP revision must comply with Sec. 51.212 (regarding
testing, inspection, enforcement, and complaints);
(3) If the SIP revision contains any transportation control
measures, then the SIP revision must comply with Sec. 51.213
(regarding transportation control measures);
(4)(i) If the SIP revision contains measures to control EGUs, then
the SIP revision must require such sources to comply with the
monitoring, recordkeeping, and reporting provisions of subpart H of
part 75 of this chapter.
(ii) If the SIP revision contains measures to control fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then the SIP revision must
require such sources to comply with the monitoring, recordkeeping, and
reporting provisions of subpart H of part 75 of this chapter.
(iii) If the SIP revision contains measures to control any other
non-EGUs that are not described in paragraph (i)(4)(ii) of this
section, then the SIP revision must require such sources to comply with
the monitoring, recordkeeping, and reporting provisions of subpart H of
part 75 of this chapter, or the State must demonstrate why such
requirements are not practicable and adopt alternative requirements
that ensure that the required emissions reductions will be quantified,
to the maximum extent practicable, with the same degree of assurance
with which emissions are quantified for sources subject to subpart H of
part 75 of this chapter.
(j) Each SIP revision must show that the State has legal authority
to carry out the SIP revision, including authority to:
(1) Adopt emissions standards and limitations and any other
measures necessary for attainment and maintenance of the State's
relevant Annual EGU NOX Budget or the Annual Non-EGU
NOX Reduction Requirement, as applicable, under paragraph
(e) of this section;
(2) Enforce applicable laws, regulations, and standards and seek
injunctive relief;
(3) Obtain information necessary to determine whether air pollution
sources are in compliance with applicable laws, regulations, and
standards, including authority to require recordkeeping and to make
inspections and conduct tests of air pollution sources; and
(4)(i) Require owners or operators of stationary sources to
install, maintain, and use emissions monitoring devices and to make
periodic reports to the State on the nature and amounts of emissions
from such stationary sources; and
(ii) Make the data described in paragraph (j)(4)(i) of this section
available to the public within a reasonable time after being reported
and as correlated with any applicable emissions standards or limitations.
(k)(1) The provisions of law or regulation that the State
determines provide the authorities required under this section must be
specifically identified, and copies of such laws or regulations must be
submitted with the SIP revision.
(2) Legal authority adequate to fulfill the requirements of
paragraphs (j)(3) and (4) of this section may be delegated to the State
under section 114 of the CAA.
[[Page 25323]]
(l)(1) A SIP revision may assign legal authority to local agencies
in accordance with Sec. 51.232.
(2) Each SIP revision must comply with Sec. 51.240 (regarding
general plan requirements).
(m) Each SIP revision must comply with Sec. 51.280 (regarding
resources).
(n) Each SIP revision must provide for State compliance with the
reporting requirements in Sec. 51.125.
(o)(1) Notwithstanding any other provision of this section, if a
State adopts regulations substantively identical to subparts AA through
II of part 96 of this chapter (CAIR NOX Annual Trading
Program), incorporates such subparts by reference into its regulations,
or adopts regulations that differ substantively from such subparts only
as set forth in paragraph (o)(2) of this section, then such emissions
trading program in the State's SIP revision is automatically approved
as meeting the requirements of paragraph (e) of this section, provided
that the State has the legal authority to take such action and to
implement its responsibilities under such regulations.
(2) If a State adopts an emissions trading program that differs
substantively from subparts AA through II of part 96 of this chapter
only as follows, then the emissions trading program is approved as set
forth in paragraph (o)(1) of this section.
(i) The State may decline to adopt the CAIR NOX opt-in
provisions of:
(A) Subpart II of this part and the provisions applicable only to
CAIR NOX opt-in units in subparts AA through HH of this part;
(B) Section 96.188(b) of this chapter and the provisions of subpart
II of this part applicable only to CAIR NOX opt-in units
under Sec. 96.188(b); or
(C) Section 96.188(c) of this chapter and the provisions of subpart
II of this part applicable only to CAIR NOX opt-in units
under Sec. 96.188(c).
(ii) The State may decline to adopt the allocation provisions set
forth in subpart EE of part 96 of this chapter and may instead adopt
any methodology for allocating CAIR NOX allowances to
individual sources, as follows:
(A) The State's methodology must not allow the State 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 State will determine, and notify
the Administrator of, each unit's allocation of CAIR NOX
allowances by October 31, 2006 for 2009, 2010, and 2011 and by October
31, 2008 and October 31 of each year thereafter for the year after the
year of the notification deadline; and
(C) The State's methodology must require that, for EGUs commencing
operation on or after January 1, 2001, the State 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.
(3) A State that adopts an emissions trading program in accordance
with paragraph (o)(1) or (2) of this section is not required to adopt
an emissions trading program in accordance with paragraph (aa)(1) or
(2) of this section or Sec. 96.124(o)(1) or (2).
(4) If a State adopts an emissions trading program that differs
substantively from subparts AA through HH of part 96 of this chapter,
other than as set forth in paragraph (o)(2) of this section, then such
emissions trading program is not automatically approved as set forth in
paragraph (o)(1) or (2) of this section and will be reviewed by the
Administrator for approvability in accordance with the other provisions
of this section, provided that the NOX allowances issued
under such emissions trading program shall not, and the SIP revision
shall state that such NOX allowances shall not, qualify as
CAIR NOX allowances or CAIR NOX Ozone Season
allowances under any emissions trading program approved under
paragraphs (o)(1) or (2) or (aa)(1) or (2) of this section.
(p) [Reserved]
(q) The State's SIP revision shall contain control measures and
demonstrate that they will result in compliance with the State's Ozone
Season EGU NOX Budget, if applicable, and achieve the
State's Ozone Season Non-EGU NOX Reduction Requirement, if
applicable, for the appropriate periods. The amounts of the State's
Ozone Season EGU NOX Budget and Ozone Season Non-EGU
NOX Reduction Requirement shall be determined as follows:
(1)(i) The Ozone Season EGU NOX Budget for the State is
defined as the total amount of NOX emissions from all EGUs
in that State for an ozone season, if the State meets the requirements
of paragraph (a)(2) of this section by imposing control measures, at
least in part, on EGUs. If the State imposes control measures under
this section on only EGUs, the Ozone Season EGU NOX Budget
for the State shall not exceed the amount, during the indicated
periods, specified in paragraph (q)(2) of this section.
(ii) The Ozone Season Non-EGU NOX Reduction Requirement,
if applicable, is defined as the total amount of NOX
emission reductions that the State demonstrates, in accordance with
paragraph (s) of this section, it will achieve from non-EGUs during the
appropriate period. If the State meets the requirements of paragraph
(a)(2) of this section by imposing control measures on only non-EGUs,
then the State's Ozone Season Non-EGU NOX Reduction
Requirement shall equal or exceed, during the appropriate periods, the
amount determined in accordance with paragraph (q)(3) of this section.
(iii) If a State meets the requirements of paragraph (a)(2) of this
section by imposing control measures on both EGUs and non-EGUs, then:
(A) The Ozone Season Non-EGU NOX Reduction Requirement
shall equal or exceed the difference between the amount specified in
paragraph (q)(2) of this section for the appropriate period and the
amount of the State's Ozone Season EGU NOX Budget specified
in the SIP revision for the appropriate period; and
(B) The Ozone Season EGU NOX Budget shall not exceed,
during the indicated periods, the amount specified in paragraph (e)(2)
of this section plus the amount of the Ozone Season Non-EGU
NOX Reduction Requirement under paragraph (q)(1)(iii)(A) of
this section for the appropriate period.
(2) For a State that complies with the requirements of paragraph
(a)(2) of this section by imposing control measures on only EGUs, the
amount of the Ozone Season EGU NOX Budget, in tons of
NOX per ozone season, shall be as follows, for the indicated
State for the indicated period:
------------------------------------------------------------------------
Ozone season
Ozone season EGU NOX budget
State EGU NOX budget for 2015 and
for 2009-2014 thereafter
(tons) (tons)
------------------------------------------------------------------------
Alabama................................. 32,182 26,818
[[Page 25324]]
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
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
------------------------------------------------------------------------
(3) For a State that complies with the requirements of paragraph
(a)(2) of this section by imposing control measures on only non-EGUs,
the amount of the Ozone Season Non-EGU NOX Reduction
Requirement, in tons of NOX per ozone season, shall be
determined, for the State for 2009 and thereafter, by subtracting the
amount of the State's Ozone Season EGU NOX Budget for the
appropriate year, specified in paragraph (e)(2) of this section, from
the amount of the State's NOX baseline EGU emissions
inventory projected for the ozone season in the appropriate year,
specified in Table 7 of ``Regional and State SO2 and
NOX Budgets'', March 2005 (available at: http://www.epa.gov/
cleanairinterstaterule).
(4) Notwithstanding the State's obligation to comply with paragraph
(q)(2) or (3) of this section, the State's SIP revision may allow
sources required by the revision to implement NOX emission
control measures to demonstrate compliance using NOX SIP
Call allowances allocated under the NOX Budget Trading
Program for any ozone season during 2003 through 2008 that have not
been deducted by the Administrator under the NOX Budget
Trading Program, if the SIP revision ensures that such allowances will
not be available for such deduction under the NOX Budget
Trading Program.
(r) Each SIP revision must set forth control measures to meet the
amounts specified in paragraph (q) of this section, as applicable,
including the following:
(1) A description of enforcement methods including, but not limited to:
(i) Procedures for monitoring compliance with each of the selected
control measures;
(ii) Procedures for handling violations; and
(iii) A designation of agency responsibility for enforcement of
implementation.
(2)(i) If a State elects to impose control measures on EGUs, then
those measures must impose an ozone season NOX mass
emissions cap on all such sources in the State.
(ii) If a State elects to impose control measures on fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then those measures must
impose an ozone season NOX mass emissions cap on all such
sources in the State.
(iii) If a State elects to impose control measures on non-EGUs
other than those described in paragraph (r)(2)(ii) of this section,
then those measures must impose an ozone season NOX mass
emissions cap on all such sources in the State or the State must
demonstrate why such emissions cap is not practicable and adopt
alternative requirements that ensure that the State will comply with
its requirements under paragraph (q) of this section, as applicable, in
2009 and subsequent years.
(s)(1) Each SIP revision that contains control measures covering
non-EGUs as part or all of a State's obligation in meeting its
requirement under paragraph (a)(2) of this section must demonstrate
that such control measures are adequate to provide for the timely
compliance with the State's Ozone Season Non-EGU NOX
Reduction Requirement under paragraph (q) of this section and are not
adopted or implemented by the State, as of May 12, 2005, and are not
adopted or implemented by the federal government, as of the date of
submission of the SIP revision by the State to EPA.
(2) The demonstration under paragraph (s)(1) of this section must
include the following, with respect to each source category of non-EGUs
for which the SIP revision requires control measures:
(i) A detailed historical baseline inventory of NOX mass
emissions from the source category in a representative ozone season
consisting, at the State's election, of the ozone season in 2002, 2003,
2004, or 2005, or an average of 2 or more of those ozone seasons,
absent the control measures specified in the SIP revision.
(A) This inventory must represent estimates of actual emissions
based on monitoring data in accordance with subpart H of part 75 of
this chapter, if the source category is subject to
[[Page 25325]]
monitoring requirements in accordance with subpart H of part 75 of this
chapter.
(B) In the absence of monitoring data in accordance with subpart H
of part 75 of this chapter, actual emissions must be quantified, to the
maximum extent practicable, with the same degree of assurance with
which emissions are quantified for sources subject to subpart H of part
75 of this chapter and using source-specific or source-category-
specific assumptions that ensure a source's or source category's actual
emissions are not overestimated. If a State uses factors to estimate
emissions, production or utilization, or effectiveness of controls or
rules for a source category, such factors must be chosen to ensure that
emissions are not overestimated.
(C) For measures to reduce emissions from motor vehicles, emission
estimates must be based on an emissions model that has been approved by
EPA for use in SIP development and must be consistent with the planning
assumptions regarding vehicle miles traveled and other factors current
at the time of the SIP development.
(D) For measures to reduce emissions from nonroad engines or
vehicles, emission estimates methodologies must be approved by EPA.
(ii) A detailed baseline inventory of NOX mass emissions
from the source category in ozone seasons 2009 and 2015, absent the
control measures specified in the SIP revision and reflecting changes
in these emissions from the historical baseline ozone season to the
ozone seasons 2009 and 2015, based on projected changes in the
production input or output, population, vehicle miles traveled,
economic activity, or other factors as applicable to this source category.
(A) These inventories must account for implementation of any
control measures that are adopted or implemented by the State, as of
May 12, 2005, or adopted or implemented by the federal government, as
of the date of submission of the SIP revision by the State to EPA, and
must exclude any control measures specified in the SIP revision to meet
the NOX emissions reduction requirements of this section.
(B) Economic and population forecasts must be as specific as
possible to the applicable industry, State, and county of the source or
source category and must be consistent with both national projections
and relevant official planning assumptions including estimates of
population and vehicle miles traveled developed through consultation
between State and local transportation and air quality agencies.
However, if these official planning assumptions are inconsistent with
official U.S. Census projections of population or with energy
consumption projections contained in the U.S. Department of Energy's
most recent Annual Energy Outlook, then the SIP revision must make
adjustments to correct the inconsistency or must demonstrate how the
official planning assumptions are more accurate.
(C) These inventories must account for any changes in production
method, materials, fuels, or efficiency that are expected to occur
between the historical baseline ozone season and ozone season 2009 or
ozone season 2015, as appropriate.
(iii) A projection of NOX mass emissions in ozone season
2009 and ozone season 2015 from the source category assuming the same
projected changes as under paragraph (s)(2)(ii) of this section and
resulting from implementation of each of the control measures specified
in the SIP revision.
(A) These inventories must address the possibility that the State's
new control measures may cause production or utilization, and
emissions, to shift to unregulated or less stringently regulated
sources in the source category in the same or another State, and these
inventories must include any such amounts of emissions that may shift
to such other sources.
(B) The State must provide EPA with a summary of the computations,
assumptions, and judgments used to determine the degree of reduction in
projected ozone season 2009 and ozone season 2015 NOX
emissions that will be achieved from the implementation of the new
control measures compared to the relevant baseline emissions inventory.
(iv) The result of subtracting the amounts in paragraph (s)(2)(iii)
of this section for ozone season 2009 and ozone season 2015,
respectively, from the lower of the amounts in paragraph (s)(2)(i) or
(s)(2)(ii) of this section for ozone season 2009 and ozone season 2015,
respectively, may be credited towards the State's Ozone Season Non-EGU
NOX Reduction Requirement in paragraph (q)(3) of this
section for the appropriate period.
(v) Each SIP revision must identify the sources of the data used in
each estimate and each projection of emissions.
(t) Each SIP revision must comply with Sec. 51.116 (regarding data
availability).
(u) Each SIP revision must provide for monitoring the status of
compliance with any control measures adopted to meet the State's
requirements under paragraph (q) of this section as follows:
(1) The SIP revision must provide for legally enforceable
procedures for requiring owners or operators of stationary sources to
maintain records of, and periodically report to the State:
(i) Information on the amount of NOX emissions from the
stationary sources; and
(ii) Other information as may be necessary to enable the State to
determine whether the sources are in compliance with applicable
portions of the control measures;
(2) The SIP revision must comply with Sec. 51.212 (regarding
testing, inspection, enforcement, and complaints);
(3) If the SIP revision contains any transportation control
measures, then the SIP revision must comply with Sec. 51.213
(regarding transportation control measures);
(4)(i) If the SIP revision contains measures to control EGUs, then
the SIP revision must require such sources to comply with the
monitoring, recordkeeping, and reporting provisions of subpart H of
part 75 of this chapter.
(ii) If the SIP revision contains measures to control fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then the SIP revision must
require such sources to comply with the monitoring, recordkeeping, and
reporting provisions of subpart H of part 75 of this chapter.
(iii) If the SIP revision contains measures to control any other
non-EGUs that are not described in paragraph (u)(4)(ii) of this
section, then the SIP revision must require such sources to comply with
the monitoring, recordkeeping, and reporting provisions of subpart H of
part 75 of this chapter, or the State must demonstrate why such
requirements are not practicable and adopt alternative requirements
that ensure that the required emissions reductions will be quantified,
to the maximum extent practicable, with the same degree of assurance
with which emissions are quantified for sources subject to subpart H of
part 75 of this chapter.
(v) Each SIP revision must show that the State has legal authority
to carry out the SIP revision, including authority to:
(1) Adopt emissions standards and limitations and any other
measures necessary for attainment and maintenance of the State's
relevant Ozone Season EGU NOX Budget or the Ozone Season
Non-EGU NOX Reduction Requirement, as applicable, under
paragraph (q) of this section;
[[Page 25326]]
(2) Enforce applicable laws, regulations, and standards and seek
injunctive relief;
(3) Obtain information necessary to determine whether air pollution
sources are in compliance with applicable laws, regulations, and
standards, including authority to require recordkeeping and to make
inspections and conduct tests of air pollution sources; and
(4)(i) Require owners or operators of stationary sources to
install, maintain, and use emissions monitoring devices and to make
periodic reports to the State on the nature and amounts of emissions
from such stationary sources; and
(ii) Make the data described in paragraph (v)(4)(i) of this section
available to the public within a reasonable time after being reported
and as correlated with any applicable emissions standards or limitations.
(w)(1) The provisions of law or regulation that the State
determines provide the authorities required under this section must be
specifically identified, and copies of such laws or regulations must be
submitted with the SIP revision.
(2) Legal authority adequate to fulfill the requirements of
paragraphs (v)(3) and (4) of this section may be delegated to the State
under section 114 of the CAA.
(x)(1) A SIP revision may assign legal authority to local agencies
in accordance with Sec. 51.232.
(2) Each SIP revision must comply with Sec. 51.240 (regarding
general plan requirements).
(y) Each SIP revision must comply with Sec. 51.280 (regarding
resources).
(z) Each SIP revision must provide for State compliance with the
reporting requirements in Sec. 51.125.
(aa)(1) Notwithstanding any other provision of this section, if a
State adopts regulations substantively identical to subparts AAAA
through IIII of part 96 of this chapter (CAIR Ozone Season
NOX Trading Program), incorporates such subparts by
reference into its regulations, or adopts regulations that differ
substantively from such subparts only as set forth in paragraph (aa)(2)
of this section, then such emissions trading program in the State's SIP
revision is automatically approved as meeting the requirements of
paragraph (q) of this section, provided that the State has the legal
authority to take such action and to implement its responsibilities
under such regulations.
(2) If a State adopts an emissions trading program that differs
substantively from subparts AAAA through IIII of part 96 of this
chapter only as follows, then the emissions trading program is approved
as set forth in paragraph (aa)(1) of this section.
(i) The State may expand the applicability provisions in Sec.
96.304 to include all non-EGUs subject to the State's emissions trading
program approved under Sec. 51.121(p).
(ii) The State may decline to adopt the CAIR NOX Ozone
Season opt-in provisions of:
(A) Subpart IIII of this part and the provisions applicable only to
CAIR NOX Ozone Season opt-in units in subparts AAAA through
HHHH of this part;
(B) Section 96.388(b) of this chapter and the provisions of subpart
IIII of this part applicable only to CAIR NOX Ozone Season
opt-in units under Sec. 96.388(b); or
(C) Section 96.388(c) of this chapter and the provisions of subpart
IIII of this part applicable only to CAIR NOX Ozone Season
opt-in units under Sec. 96.388(c).
(iii) The State may decline to adopt the allocation provisions set
forth in subpart EEEE of part 96 of this chapter and may instead adopt
any methodology for allocating CAIR NOX Ozone Season
allowances to individual sources, as follows:
(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 amount of NOX SIP Call
allowances allocated for the ozone season under the NOX
Budget Trading Program to non-EGUs that the applicability provisions in
Sec. 96.304 are expanded to include under paragraph (aa)(2)(i) 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 (aa)(2)(iii)(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 State will determine, and notify
the Administrator of, each unit's allocation of CAIR NOX
allowances by October 31, 2006 for the ozone seasons 2009, 2010, and
2011 and by October 31, 2008 and October 31 of each year thereafter for
the ozone season in the 4th year after the year of the notification
deadline; and
(D) The State's methodology must require that, for EGUs commencing
operation on or after January 1, 2001, the State will determine, and
notify the Administrator of, each unit's allocation of CAIR Ozone
Season NOX allowances by July 31 of the calendar year of the
ozone season for which the CAIR Ozone Season NOX allowances
are allocated.
(3) A State that adopts an emissions trading program in accordance
with paragraph (aa)(1) or (2) of this section is not required to adopt
an emissions trading program in accordance with paragraph (o)(1) or (2)
of this section or Sec. 51.153(o)(1) or (2).
(4) If a State adopts an emissions trading program that differs
substantively from subparts AAAA through IIII of part 96 of this
chapter, other than as set forth in paragraph (aa)(2) of this section,
then such emissions trading program is not automatically approved as
set forth in paragraph (aa)(1) or (2) of this section and will be
reviewed by the Administrator for approvability in accordance with the
other provisions of this section, provided that the NOX
allowances issued under such emissions trading program shall not, and
the SIP revision shall state that such NOX allowances shall
not, qualify as CAIR NOX allowances or CAIR Ozone Season
NOX allowances under any emissions trading program approved
under paragraphs (o)(1) or (2) or (aa)(1) or (2) of this section.
(bb)(1)(i) The State may revise its SIP to provide that, for each
ozone season during which a State implements control measures on EGUs
or non-EGUs through an emissions trading program approved under
paragraph (aa)(1) or (2) of this section, such EGUs and non-EGUs shall
not be subject to the requirements of the State's SIP meeting the
requirements of Sec. 51.121, if the State meets the requirement in
paragraph (bb)(1)(ii) of this section.
(ii) For a State under paragraph (bb)(1)(i) of this section, if the
State's amount of tons specified in paragraph (q)(2) of this section
exceeds the State's amount of NOX SIP Call allowances
allocated for the ozone season in 2009 or in any year thereafter for
the same types and sizes of units as those covered by the amount of
tons specified in paragraph (q)(2) of this section, then the State must
replace the former amount for such ozone season by the latter amount
for such ozone season in applying paragraph (q) of this section.
(2) Rhode Island may revise its SIP to provide that, for each ozone
season during which Rhode Island implements control measures on EGUs
and non-EGUs through an emissions trading program adopted in
regulations that differ substantively from subparts AAAA through IIII
of part 96 of this
[[Page 25327]]
chapter as set forth in this paragraph, such EGUs and non-EGUs shall
not be subject to the requirements of the State's SIP meeting the
requirements of Sec. 51.121.
(i) Rhode Island must expand the applicability provisions in Sec.
96.304 to include all non-EGUs subject to Rhode Island's emissions
trading program approved under Sec. 51.121(p).
(ii) Rhode Island may decline to adopt the CAIR NOX
Ozone Season opt-in provisions of:
(A) Subpart IIII of this part and the provisions applicable only to
CAIR NOX Ozone Season opt-in units in subparts AAAA through
HHHH of this part;
(B) Section 96.388(b) of this chapter and the provisions of subpart
IIII of this part applicable only to CAIR NOX Ozone Season
opt-in units under Sec. 96.388(b); or
(C) Section 96.388(c) of this chapter and the provisions of subpart
IIII of this part applicable only to CAIR NOX Ozone Season
opt-in units under Sec. 96.388(c).
(iii) Rhode Island may adopt the allocation provisions set forth in
subpart EEEE of part 96 of this chapter, provided that Rhode Island
must provide for issuance of an amount of CAIR Ozone Season
NOX allowances for an ozone season not exceeding 936 tons
for 2009 and thereafter;
(iv) Rhode Island may adopt any methodology for allocating CAIR
NOX Ozone Season allowances to individual sources, as follows:
(A) Rhode Island's methodology must not allow Rhode Island to
allocate CAIR Ozone Season NOX allowances for an ozone
season in excess of 936 tons for 2009 and thereafter;
(B) Rhode Island's methodology must require that, for EGUs
commencing operation before January 1, 2001, Rhode Island will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX allowances by October 31, 2006 for the ozone
seasons 2009, 2010, and 2011 and by October 31, 2008 and October 31 of
each year thereafter for the ozone season in the 4th year after the
year of the notification deadline; and
(C) Rhode Island's methodology must require that, for EGUs
commencing operation on or after January 1, 2001, Rhode Island will
determine, and notify the Administrator of, each unit's allocation of
CAIR Ozone Season NOX allowances by July 31 of the calendar
year of the ozone season for which the CAIR Ozone Season NOX
allowances are allocated.
(3) Notwithstanding a SIP revision by a State authorized under
paragraph (bb)(1) of this section or by Rhode Island under paragraph
(bb)(2) of this section, if the State's or Rhode Island's SIP that,
without such SIP revision, imposes control measures on EGUs or non-EGUs
under Sec. 51.121 is determined by the Administrator to meet the
requirements of Sec. 51.121, such SIP shall be deemed to continue to
meet the requirements of Sec. 51.121.
(cc) The terms used in this section shall have the following meanings:
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 allowances, the
determination of the amount of allowances to be initially credited to a
source.
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.
Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.
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
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 heat recovery steam generator and
steam turbine.
Commence operation means to have begun any mechanical, chemical, or
electronic process, including, with regard to a unit, start-up of a
unit's combustion chamber.
Electric generating unit or EGU means:
(1) Except as provided in paragraph (2) of this definition, a
stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired
combustion turbine serving at any time, since the start-up of the
unit's combustion chamber, a generator with nameplate capacity of more
than 25 MWe producing electricity for sale.
(2) For a unit that qualifies as a cogeneration unit during the 12-
month period starting on the date the unit first produces electricity
and continues to qualify as a cogeneration unit, a cogeneration unit
serving at any time a generator with nameplate capacity of more than 25
MWe and 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. If a unit
qualifies as a cogeneration unit during the 12-month period starting on
the date the unit first produces electricity but subsequently no longer
qualifies as a cogeneration unit, the unit shall be subject to
paragraph (1) of this definition starting on the day on which the unit
first no longer qualifies as a cogeneration unit.
Fossil fuel means natural gas, petroleum, coal, or any form of
solid, liquid, or gaseous fuel derived from such material.
Fossil-fuel-fired means, with regard to a unit, combusting any
amount of fossil fuel in any calendar year.
Generator means a device that produces electricity.
Maximum design heat input means:
(1) Starting from the initial installation of a unit, the maximum
amount of fuel per hour (in Btu/hr) that a unit is capable of
combusting on a steady state basis as specified by the manufacturer of
the unit;
(2)(i) Except as provided in paragraph (2)(ii) of this definition,
starting from the completion of any subsequent physical change in the
unit resulting in an increase in the maximum amount of fuel per hour
(in Btu/hr) that a unit is capable of combusting on a steady state
basis, such increased maximum amount
[[Page 25328]]
as specified by the person conducting the physical change; or
(ii) For purposes of applying the definition of the term
``potential electrical output capacity,'' starting from the completion
of any subsequent physical change in the unit resulting in a decrease
in the maximum amount of fuel per hour (in Btu/hr) that a unit is
capable of combusting on a steady state basis, such decreased maximum
amount as specified by the person conducting the physical change.
NAAQS means National Ambient Air Quality Standard.
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 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
specified by the person conducting the physical change.
Non-EGU means a source of NOX emissions that is not an
EGU.
NOX Budget Trading Program means a multi-state nitrogen
oxides air pollution control and emission reduction program approved
and administered by the Administrator in accordance with subparts A
through I of this part and Sec. 51.121, as a means of mitigating
interstate transport of ozone and nitrogen oxides.
NOX SIP Call allowance means a limited authorization
issued by the Administrator under the NOX Budget Trading
Program to emit up to one ton of nitrogen oxides during the ozone
season of the specified year or any year thereafter, provided that the
provision in Sec. 51.121(b)(2)(ii)(E) shall not be used in applying
this definition.
Ozone season means the period, which begins May 1 and ends
September 30 of any year.
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.
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.
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 a stationary,
fossil-fuel-fired combustion turbine.
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,
excluding any heat contained in condensate return or makeup water;
(2) Used in a heat 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.
(dd) New Hampshire may revise its SIP to implements control
measures on EGUs and non-EGUs through an emissions trading program
adopted in regulations that differ substantively from subparts AAAA
through IIII of part 96 of this chapter as set forth in this paragraph.
(1) New Hampshire must expand the applicability provisions in Sec.
96.304 of this chapter to include all non-EGUs subject to New
Hampshire's emissions trading program at New Hampshire Code of
Administrative Rules, chapter Env-A 3200 (2004).
(2) New Hampshire may decline to adopt the CAIR NOX
Ozone Season opt-in provisions of:
(i) Subpart IIII of this part and the provisions applicable only to
CAIR NOX Ozone Season opt-in units in subparts AAAA through
HHHH of this part;
(ii) Section 96.388(b) of this chapter and the provisions of
subpart IIII of this part applicable only to CAIR NOX Ozone
Season opt-in units under Sec. 96.388(b); or
(iii) Section 96.388(c) of this chapter and the provisions of
subpart IIII of this part applicable only to CAIR NOX Ozone
Season opt-in units under Sec. 96.388(c).
(3) New Hampshire may adopt the allocation provisions set forth in
subpart EEEE of part 96 of this chapter, provided that New Hampshire
must provide for issuance of an amount of CAIR Ozone Season
NOX allowances for an ozone season not exceeding 3,000 tons
for 2009 and thereafter;
(4) New Hampshire may adopt any methodology for allocating CAIR
NOX Ozone Season allowances to individual sources, as follows:
(i) New Hampshire's methodology must not allow New Hampshire to
allocate CAIR Ozone Season NOX allowances for an ozone
season in excess of 3,000 tons for 2009 and thereafter;
(ii) New Hampshire's methodology must require that, for EGUs
commencing operation before January 1, 2001, New Hampshire will
determine, and notify the Administrator of, each unit's allocation of
CAIR NOX allowances by October 31, 2006 for the ozone
seasons 2009, 2010, and 2011 and by October 31, 2008 and October 31 of
each year thereafter for the ozone season in the 4th year after the
year of the notification deadline; and
(iii) New Hampshire's methodology must require that, for EGUs
commencing operation on or after January 1, 2001, New Hampshire will
determine, and notify the Administrator of, each unit's allocation of
CAIR Ozone Season NOX allowances by July 31 of the calendar
year of the ozone season for which the CAIR Ozone Season NOX
allowances are allocated.
? 5. Part 51 is amended by adding Sec. 51.124 to Subpart G to read as
follows:
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.
(a) Under section 110(a)(1) of the CAA, 42 U.S.C. 7410(a)(1), the
Administrator determines that each State identified in paragraph (c) of
this
[[Page 25329]]
section must submit a SIP revision to comply with the requirements of
section 110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I),
through the adoption of adequate provisions prohibiting sources and
other activities from emitting SO2 in amounts that will
contribute significantly to nonattainment in, or interfere with
maintenance by, one or more other States with respect to the fine
particles (PM2.5) NAAQS.
(b) For each State identified in paragraph (c) of this section, the
SIP revision required under paragraph (a) of this section will contain
adequate provisions, for purposes of complying with section
110(a)(2)(D)(i)(I) of the CAA, 42 U.S.C. 7410(a)(2)(D)(i)(I), only if
the SIP revision contains control measures that assure compliance with
the applicable requirements of this section.
(c) The following States are subject to the requirements of this
section: 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, and the District of
Columbia.
(d)(1) The SIP revision under paragraph (a) of this section must be
submitted to EPA by no later than September 11, 2006.
(2) The requirements of appendix V to this part shall apply to the
SIP revision under paragraph (a) of this section.
(3) The State shall deliver 5 copies of the SIP revision under
paragraph (a) of this section to the appropriate Regional Office, with
a letter giving notice of such action.
(e) The State's SIP revision shall contain control measures and
demonstrate that they will result in compliance with the State's Annual
EGU SO2 Budget, if applicable, and achieve the State's
Annual Non-EGU SO2 Reduction Requirement, if applicable, for
the appropriate periods. The amounts of the State's Annual EGU
SO2 Budget and Annual Non-EGU SO2 Reduction
Requirement shall be determined as follows:
(1)(i) The Annual EGU SO2 Budget for the State is
defined as the total amount of SO2 emissions from all EGUs
in that State for a year, if the State meets the requirements of
paragraph (a) of this section by imposing control measures, at least in
part, on EGUs. If the State imposes control measures under this section
on only EGUs, the Annual EGU SO2 Budget for the State shall
not exceed the amount, during the indicated periods, specified in
paragraph (e)(2) of this section.
(ii) The Annual Non-EGU SO2 Reduction Requirement, if
applicable, is defined as the total amount of SO2 emission
reductions that the State demonstrates, in accordance with paragraph
(g) of this section, it will achieve from non-EGUs during the
appropriate period. If the State meets the requirements of paragraph
(a) of this section by imposing control measures on only non-EGUs, then
the State's Annual Non-EGU SO2 Reduction Requirement shall
equal or exceed, during the appropriate periods, the amount determined
in accordance with paragraph (e)(3) of this section.
(iii) If a State meets the requirements of paragraph (a) of this
section by imposing control measures on both EGUs and non-EGUs, then:
(A) The Annual Non-EGU SO2 Reduction Requirement shall
equal or exceed the difference between the amount specified in
paragraph (e)(2) of this section for the appropriate period and the
amount of the State's Annual EGU SO2 Budget specified in the
SIP revision for the appropriate period; and
(B) The Annual EGU SO2 Budget shall not exceed, during
the indicated periods, the amount specified in paragraph (e)(2) of this
section plus the amount of the Annual Non-EGU SO2 Reduction
Requirement under paragraph (e)(1)(iii)(A) of this section for the
appropriate period.
(2) For a State that complies with the requirements of paragraph
(a) of this section by imposing control measures on only EGUs, the
amount of the Annual EGU SO2 Budget, in tons of
SO2 per year, shall be as follows, for the indicated State
for the indicated period:
----------------------------------------------------------------------------------------------------------------
Annual EGU SO2 Annual EGU SO2
State budget for 2010-2014 budget for 2015 and
(tons) thereafter (tons)
----------------------------------------------------------------------------------------------------------------
Alabama............................................................. 157,582 110,307
District of Columbia................................................ 708 495
Florida............................................................. 253,450 177,415
Georgia............................................................. 213,057 149,140
Illinois............................................................ 192,671 134,869
Indiana............................................................. 254,599 178,219
Iowa................................................................ 64,095 44,866
Kentucky............................................................ 188,773 132,141
Louisiana........................................................... 59,948 41,963
Maryland............................................................ 70,697 49,488
Michigan............................................................ 178,605 125,024
Minnesota........................................................... 49,987 34,991
Mississippi......................................................... 33,763 23,634
Missouri............................................................ 137,214 96,050
New York............................................................ 135,139 94,597
North Carolina...................................................... 137,342 96,139
Ohio................................................................ 333,520 233,464
Pennsylvania........................................................ 275,990 193,193
South Carolina...................................................... 57,271 40,089
Tennessee........................................................... 137,216 96,051
Texas............................................................... 320,946 224,662
Virginia............................................................ 63,478 44,435
West Virginia....................................................... 215,881 151,117
Wisconsin........................................................... 87,264 61,085
----------------------------------------------------------------------------------------------------------------
[[Page 25330]]
(3) For a State that complies with the requirements of paragraph
(a) of this section by imposing control measures on only non-EGUs, the
amount of the Annual Non-EGU SO2 Reduction Requirement, in
tons of SO2 per year, shall be determined, for the State for
2010 and thereafter, by subtracting the amount of the State's Annual
EGU SO2 Budget for the appropriate year, specified in
paragraph (e)(2) of this section, from an amount equal to 2 times the
State's Annual EGU SO2 Budget for 2010 through 2014,
specified in paragraph (e)(2) of this section.
(f) Each SIP revision must set forth control measures to meet the
amounts specified in paragraph (e) of this section, as applicable,
including the following:
(1) A description of enforcement methods including, but not limited
to:
(i) Procedures for monitoring compliance with each of the selected
control measures;
(ii) Procedures for handling violations; and
(iii) A designation of agency responsibility for enforcement of
implementation.
(2)(i) If a State elects to impose control measures on EGUs, then
those measures must impose an annual SO2 mass emissions cap
on all such sources in the State.
(ii) If a State elects to impose control measures on fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then those measures must
impose an annual SO2 mass emissions cap on all such sources
in the State.
(iii) If a State elects to impose control measures on non-EGUs
other than those described in paragraph (f)(2)(ii) of this section,
then those measures must impose an annual SO2 mass emissions
cap on all such sources in the State, or the State must demonstrate why
such emissions cap is not practicable, and adopt alternative
requirements that ensure that the State will comply with its
requirements under paragraph (e) of this section, as applicable, in
2010 and subsequent years.
(g)(1) Each SIP revision that contains control measures covering
non-EGUs as part or all of a State's obligation in meeting its
requirement under paragraph (a) of this section must demonstrate that
such control measures are adequate to provide for the timely compliance
with the State's Annual Non-EGU SO2 Reduction Requirement
under paragraph (e) of this section and are not adopted or implemented
by the State, as of May 12, 2005, and are not adopted or implemented by
the federal government, as of the date of submission of the SIP
revision by the State to EPA.
(2) The demonstration under paragraph (g)(1) of this section must
include the following, with respect to each source category of non-EGUs
for which the SIP revision requires control measures:
(i) A detailed historical baseline inventory of SO2 mass
emissions from the source category in a representative year consisting,
at the State's election, of 2002, 2003, 2004, or 2005, or an average of
2 or more of those years, absent the control measures specified in the
SIP revision.
(A) This inventory must represent estimates of actual emissions
based on monitoring data in accordance with part 75 of this chapter, if
the source category is subject to part 75 monitoring requirements in
accordance with part 75 of this chapter.
(B) In the absence of monitoring data in accordance with part 75 of
this chapter, actual emissions must be quantified, to the maximum
extent practicable, with the same degree of assurance with which
emissions are quantified for sources subject to part 75 of this chapter
and using source-specific or source-category-specific assumptions that
ensure a source's or source category's actual emissions are not
overestimated. If a State uses factors to estimate emissions,
production or utilization, or effectiveness of controls or rules for a
source category, such factors must be chosen to ensure that emissions
are not overestimated.
(C) For measures to reduce emissions from motor vehicles, emission
estimates must be based on an emissions model that has been approved by
EPA for use in SIP development and must be consistent with the planning
assumptions regarding vehicle miles traveled and other factors current
at the time of the SIP development.
(D) For measures to reduce emissions from nonroad engines or
vehicles, emission estimates methodologies must be approved by EPA.
(ii) A detailed baseline inventory of SO2 mass emissions
from the source category in the years 2010 and 2015, absent the control
measures specified in the SIP revision and reflecting changes in these
emissions from the historical baseline year to the years 2010 and 2015,
based on projected changes in the production input or output,
population, vehicle miles traveled, economic activity, or other factors
as applicable to this source category.
(A) These inventories must account for implementation of any
control measures that are adopted or implemented by the State, as of
May 12, 2005, or adopted or implemented by the federal government, as
of the date of submission of the SIP revision by the State to EPA, and
must exclude any control measures specified in the SIP revision to meet
the SO2 emissions reduction requirements of this section.
(B) Economic and population forecasts must be as specific as
possible to the applicable industry, State, and county of the source or
source category and must be consistent with both national projections
and relevant official planning assumptions, including estimates of
population and vehicle miles traveled developed through consultation
between State and local transportation and air quality agencies.
However, if these official planning assumptions are inconsistent with
official U.S. Census projections of population or with energy
consumption projections contained in the U.S. Department of Energy's
most recent Annual Energy Outlook, then the SIP revision must make
adjustments to correct the inconsistency or must demonstrate how the
official planning assumptions are more accurate.
(C) These inventories must account for any changes in production
method, materials, fuels, or efficiency that are expected to occur
between the historical baseline year and 2010 or 2015, as appropriate.
(iii) A projection of SO2 mass emissions in 2010 and
2015 from the source category assuming the same projected changes as
under paragraph (g)(2)(ii) of this section and resulting from
implementation of each of the control measures specified in the SIP
revision.
(A) These inventories must address the possibility that the State's
new control measures may cause production or utilization, and
emissions, to shift to unregulated or less stringently regulated
sources in the source category in the same or another State, and these
inventories must include any such amounts of emissions that may shift
to such other sources.
(B) The State must provide EPA with a summary of the computations,
assumptions, and judgments used to determine the degree of reduction in
projected 2010 and 2015 SO2 emissions that will be achieved
from the implementation of the new control measures compared to the
relevant baseline emissions inventory.
(iv) The result of subtracting the amounts in paragraph (g)(2)(iii)
of this section for 2010 and 2015, respectively, from the lower of the
amounts in paragraph (g)(2)(i) or (g)(2)(ii) of this section for 2010
and 2015, respectively,
[[Page 25331]]
may be credited towards the State's Annual Non-EGU SO2
Reduction Requirement in paragraph (e)(3) of this section for the
appropriate period.
(v) Each SIP revision must identify the sources of the data used in
each estimate and each projection of emissions.
(h) Each SIP revision must comply with Sec. 51.116 (regarding data
availability).
(i) Each SIP revision must provide for monitoring the status of
compliance with any control measures adopted to meet the State's
requirements under paragraph (e) of this section, as follows:
(1) The SIP revision must provide for legally enforceable
procedures for requiring owners or operators of stationary sources to
maintain records of, and periodically report to the State:
(i) Information on the amount of SO2 emissions from the
stationary sources; and
(ii) Other information as may be necessary to enable the State to
determine whether the sources are in compliance with applicable
portions of the control measures;
(2) The SIP revision must comply with Sec. 51.212 (regarding
testing, inspection, enforcement, and complaints);
(3) If the SIP revision contains any transportation control
measures, then the SIP revision must comply with Sec. 51.213
(regarding transportation control measures);
(4)(i) If the SIP revision contains measures to control EGUs, then
the SIP revision must require such sources to comply with the
monitoring, recordkeeping, and reporting provisions of part 75 of this
chapter.
(ii) If the SIP revision contains measures to control fossil fuel-
fired non-EGUs that are boilers or combustion turbines with a maximum
design heat input greater than 250 mmBtu/hr, then the SIP revision must
require such sources to comply with the monitoring, recordkeeping, and
reporting provisions of part 75 of this chapter.
(iii) If the SIP revision contains measures to control any other
non-EGUs that are not described in paragraph (i)(4)(ii) of this
section, then the SIP revision must require such sources to comply with
the monitoring, recordkeeping, and reporting provisions of part 75 of
this chapter, or the State must demonstrate why such requirements are
not practicable and adopt alternative requirements that ensure that the
required emissions reductions will be quantified, to the maximum extent
practicable, with the same degree of assurance with which emissions are
quantified for sources subject to part 75 of this chapter.
(j) Each SIP revision must show that the State has legal authority
to carry out the SIP revision, including authority to:
(1) Adopt emissions standards and limitations and any other
measures necessary for attainment and maintenance of the State's
relevant Annual EGU SO2 Budget or the Annual Non-EGU
SO2 Reduction Requirement, as applicable, under paragraph
(e) of this section;
(2) Enforce applicable laws, regulations, and standards and seek
injunctive relief;
(3) Obtain information necessary to determine whether air pollution
sources are in compliance with applicable laws, regulations, and
standards, including authority to require recordkeeping and to make
inspections and conduct tests of air pollution sources; and
(4)(i) Require owners or operators of stationary sources to
install, maintain, and use emissions monitoring devices and to make
periodic reports to the State on the nature and amounts of emissions
from such stationary sources; and
(ii) Make the data described in paragraph (j)(4)(i) of this section
available to the public within a reasonable time after being reported
and as correlated with any applicable emissions standards or
limitations.
(k)(1) The provisions of law or regulation that the State
determines provide the authorities required under this section must be
specifically identified, and copies of such laws or regulations must be
submitted with the SIP revision.
(2) Legal authority adequate to fulfill the requirements of
paragraphs (j)(3) and (4) of this section may be delegated to the State
under section 114 of the CAA.
(l)(1) A SIP revision may assign legal authority to local agencies
in accordance with Sec. 51.232.
(2) Each SIP revision must comply with Sec. 51.240 (regarding
general plan requirements).
(m) Each SIP revision must comply with Sec. 51.280 (regarding
resources).
(n) Each SIP revision must provide for State compliance with the
reporting requirements in Sec. 51.125.
(o)(1) Notwithstanding any other provision of this section, if a
State adopts regulations substantively identical to subparts AAA
through III of part 96 of this chapter (CAIR SO2 Trading
Program), incorporates such subparts by reference into its regulations,
or adopts regulations that differ substantively from such subparts only
as set forth in paragraph (o)(2) of this section, then such emissions
trading program in the State's SIP revision is automatically approved
as meeting the requirements of paragraph (e) of this section, provided
that the State has the legal authority to take such action and to
implement its responsibilities under such regulations.
(2) If a State adopts an emissions trading program that differs
substantively from subparts AAA through III of part 96 of this chapter
only as follows, then the emissions trading program is approved as set
forth in paragraph (o)(1) of this section.
(i) The State may decline to adopt the CAIR SO2 opt-in
provisions of subpart III of this part and the provisions applicable
only to CAIR SO2 opt-in units in subparts AAA through HHH of
this part.
(ii) The State may decline to adopt the CAIR SO2 opt-in
provisions of Sec. 96.288(b) of this chapter and the provisions of
subpart III of this part applicable only to CAIR SO2 opt-in
units under Sec. 96.288(b).
(iii) The State may decline to adopt the CAIR SO2 opt-in
provisions of Sec. 96.288(c) of this chapter and the provisions of
subpart II of this part applicable only to CAIR SO2 opt-in
units under Sec. 96.288(c).
(3) A State that adopts an emissions trading program in accordance
with paragraph (o)(1) or (2) of this section is not required to adopt
an emissions trading program in accordance with Sec. 96.123 (o)(1) or
(2) or (aa)(1) or (2) of this chapter.
(4) If a State adopts an emissions trading program that differs
substantively from subparts AAA through III of part 96 of this chapter,
other than as set forth in paragraph (o)(2) of this section, then such
emissions trading program is not automatically approved as set forth in
paragraph (o)(1) or (2) of this section and will be reviewed by the
Administrator for approvability in accordance with the other provisions
of this section, provided that the SO2 allowances issued
under such emissions trading program shall not, and the SIP revision
shall state that such SO2 allowances shall not, qualify as
CAIR SO2 allowances under any emissions trading program
approved under paragraph (o)(1) or (2) of this section.
(p) If a State's SIP revision does not contain an emissions trading
program approved under paragraph (o)(1) or (2) of this section but
contains control measures on EGUs as part or all of a State's
obligation in meeting its requirement under paragraph (a) of this
section:
(1) The SIP revision shall provide, for each year that the State
has such
[[Page 25332]]
obligation, for the permanent retirement of an amount of Acid Rain
allowances allocated to sources in the State for that year and not
deducted by the Administrator under the Acid Rain Program and any
emissions trading program approved under paragraph (o)(1) or (2) of
this section, equal to the difference between--
(A) The total amount of Acid Rain allowances allocated under the
Acid Rain Program to the sources in the State for that year; and
(B) If the State's SIP revision contains only control measures on
EGUs, the State's Annual EGU SO2 Budget for the appropriate
period as specified in paragraph (e)(2) of this section or, if the
State's SIP revision contains control measures on EGUs and non-EGUs,
the State's Annual EGU SO2 Budget for the appropriate period
as specified in the SIP revision.
(2) The SIP revision providing for permanent retirement of Acid
Rain allowances under paragraph (p)(1) of this section must ensure that
such allowances are not available for deduction by the Administrator
under the Acid Rain Program and any emissions trading program approved
under paragraph (o)(1) or (2) of this section.
(q) The terms used in this section shall have the following meanings:
Acid Rain allowance means a limited authorization issued by the
Administrator under the Acid Rain Program to emit up to one ton of
sulfur dioxide during the specified year or any year thereafter, except
as otherwise provided by the Administrator.
Acid Rain Program means a multi-State sulfur dioxide and nitrogen
oxides air pollution control and emissions 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 allowances, the
determination of the amount of allowances to be initially credited to a
source.
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.
Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.
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
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 heat recovery steam generator and
steam turbine.
Commence operation means to have begun any mechanical, chemical, or
electronic process, including, with regard to a unit, start-up of a
unit's combustion chamber.
Electric generating unit or EGU means:
(1) Except as provided in paragraph (2) of this definition, a
stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired
combustion turbine serving at any time, since the start-up of the
unit's combustion chamber, a generator with nameplate capacity of more
than 25 MWe producing electricity for sale.
(2) For a unit that qualifies as a cogeneration unit during the 12-
month period starting on the date the unit first produces electricity
and continues to qualify as a cogeneration unit, a cogeneration unit
serving at any time a generator with nameplate capacity of more than 25
MWe and 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. If a unit
qualifies as a cogeneration unit during the 12-month period starting on
the date the unit first produces electricity but subsequently no longer
qualifies as a cogeneration unit, the unit shall be subject to
paragraph (1) of this definition starting on the day on which the unit
first no longer qualifies as a cogeneration unit.
Fossil fuel means natural gas, petroleum, coal, or any form of
solid, liquid, or gaseous fuel derived from such material.
Fossil-fuel-fired means, with regard to a unit, combusting any
amount of fossil fuel in any calendar year.
Generator means a device that produces electricity.
Maximum design heat input means:
(1) Starting from the initial installation of a unit, the maximum
amount of fuel per hour (in Btu/hr) that a unit is capable of
combusting on a steady state basis as specified by the manufacturer of
the unit;
(2)(i) Except as provided in paragraph (2)(ii) of this definition,
starting from the completion of any subsequent physical change in the
unit resulting in an increase in the maximum amount of fuel per hour
(in Btu/hr) that a unit is capable of combusting on a steady state
basis, such increased maximum amount as specified by the person
conducting the physical change; or
(ii) For purposes of applying the definition of the term
``potential electrical output capacity,'' starting from the completion
of any subsequent physical change in the unit resulting in a decrease
in the maximum amount of fuel per hour (in Btu/hr) that a unit is
capable of combusting on a steady state basis, such decreased maximum
amount as specified by the person conducting the physical change.
NAAQS means National Ambient Air Quality Standard.
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 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
[[Page 25333]]
deratings), such increased maximum amount as specified by the person
conducting the physical change.
Non-EGU means a source of SO2 emissions that is not an
EGU.
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.
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.
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 a stationary,
fossil-fuel fired combustion turbine.
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,
excluding any heat contained in condensate return or makeup water;
(2) Used in a heat 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.
? 6. Part 51 is amended by adding Sec. 51.125 to Subpart G to read as
follows:
Sec. 51.125 Emissions reporting requirements for SIP revisions
relating to budgets for SO2 and NOX emissions.
(a) For its transport SIP revision under Sec. 51.123 and/or
51.124, each State must submit to EPA SO2 and/or
NOX emissions data as described in this section.
(1) 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, Wisconsin and the District of Columbia,
must report annual (12 months) emissions of SO2 and NOX.
(2) Alabama, Arkansas, Connecticut, Deleware, Florida, Illinois,
Indinia, Iowa, Kentucky, Lousianna, Maryland, Massachusetts, Michigan,
Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio,
Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia,
Wisconsin and the District of Columbia must report ozone season (May 1
through September 30) emissions of NOX.
(b) Each revision must provide for periodic reporting by the State
of SO2 and/or NOX emissions data as specified in
paragraph (a) of this section to demonstrate whether the State's
emissions are consistent with the projections contained in its approved
SIP submission.
(1) Every-year reporting cycle. As applicable, each revision must
provide for reporting of SO2 and NOX emissions
data every year as follows:
(i) The States identified in paragraph (a)(1) of this section must
report to EPA annual emissions data every year from all SO2
and NOX sources within the State for which the State
specified control measures in its SIP submission under Sec. Sec.
51.123 and/or 51.124.
(ii) The States identified in paragraph (a)(2) of this section must
report to EPA ozone season and summer daily emissions data every year
from all NOX sources within the State for which the State
specified control measures in its SIP submission under Sec. 51.123.
(iii) If sources report SO2 and NOX emissions
data to EPA in a given year pursuant to a trading program approved
under Sec. 51.123(o) or Sec. 51.124(o) of this part or pursuant to
the monitoring and reporting requirements of 40 CFR part 75, then the
State need not provide annual reporting of these pollutants to EPA for
such sources.
(2) Three-year reporting cycle. As applicable, each plan must
provide for triennial (i.e., every third year) reporting of
SO2 and NOX emissions data from all sources
within the State.
(i) The States identified in paragraph (a)(1) of this section must
report to EPA annual emissions data every third year from all
SO2 and NOX sources within the State.
(ii) The States identified in paragraph (a)(2) of this section must
report to EPA ozone season and ozone daily emissions data every third
year from all NOX sources within the State.
(3) The data availability requirements in Sec. 51.116 must be
followed for all data submitted to meet the requirements of paragraphs
(b)(1) and (2) of this section.
(c) The data reported in paragraph (b) of this section must meet
the requirements of subpart A of this part.
(d) Approval of annual and ozone season calculation by EPA. Each
State must submit for EPA approval an example of the calculation
procedure used to calculate annual and ozone season emissions along
with sufficient information for EPA to verify the calculated value of
annual and ozone season emissions.
(e) Reporting schedules. (1) Reports are to begin with data for
emissions occurring in the year 2008, which is the first year of the 3-
year cycle.
(2) After 2008, 3-year cycle reports are to be submitted every
third year and every-year cycle reports are to be submitted each year
that a triennial report is not required.
(3) States must submit data for a required year no later than 17
months after the end of the calendar year for which the data are collected.
(f) Data reporting procedures are given in subpart A of this part.
When submitting a formal NOX budget emissions report and
associated data, States shall notify the appropriate EPA Regional Office.
(g) Definitions. (1) As used in this section, ``ozone season'' is
defined as follows:
Ozone season.--The five month period from May 1 through September 30.
(2) Other words and terms shall have the meanings set forth in
appendix A of subpart A of this part.
PART 72--PERMITS REGULATION
? 1. The authority citation for part 72 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
Sec. 72.2 [Amended]
? 2. Section 72.2 is amended by:
? a. Amend the definition of ``Acid rain emissions limitation'' by
replacing, in paragraph (1)(i), the words ``an affected unit'' with the
words ``the affected units
[[Page 25334]]
at a source'' and replacing, in paragraph (1)(ii)(C), the words
``compliance subaccount for that unit'' with the words ``compliance
account for that source'';
? b. Amend the definition of ``Advance allowance'' by replacing the word
``unit's'' with the word ``source'';
? c. Amend the definition of ``Allocate or allocation'' by replacing the
words ``unit account'' with the words ``compliance account'';
? d. Amend the definition of ``Allowance deduction, or deduct'' by
replacing the words ``compliance subaccount, or future year
subaccount,'' with the words ``compliance account'' and replacing the
words ``from an affected unit'' with the words ``from the affected
units at an affected source'';
? e. Amend the definition of ``Allowance transfer deadline'' by replacing
the words ``affected unit's compliance subaccount'' with the words ``an
affected source's compliance account'' and replacing the words ``the
unit's'' with the words ``the source's'';
? f. Amend the definition of ``Authorized account representative'' by
replacing the words ``unit account'' with the words ``compliance
account'' and replacing the words ``affected unit'' with the words
``affected source and the affected units at the source'';
? g. Amend the definition of ``Compliance use date'' by replacing the
word ``unit's'' with the word ``source's'';
? h. Amend the definition of ``Excess emissions'' by, in paragraph (1),
replacing the words ``an affected unit'' with the words ``the affected
units at an affected source'' and replacing the words ``for the unit''
with the words ``for the source'';
? i. Amend the definition of ``General account'' by replacing the words
``unit account'' with the words ``compliance account'';
? j. Amend the definition of ``Offset Plan'' by replacing the word
``unit'' with the word ``source'';
? k. Amend the definition of ``Recordation, record, or recorded'' by
removing the words ``or subaccount'';
? l. Amend the definition of ``Source'' by replacing the words ``under
the Act.'' with the words ``under the Act, provided that one or more
combustion or process sources that have, under Sec. 74.4(c) of this
chapter, a different designated representative than the designated
representative for one or more affected utility units at a source shall
be treated as being included in a separate source from the source that
includes such utility units for purposes of parts 72 through 78 of this
chapter, but shall be treated as being included in the same source as
the source that includes such utility units for purposes of section
502(c) of the Act.''
? m. Amend the definition of ``Spot allowance'' by replacing the word
``unit's'' with the word ``source's''; and
? n. Revise the definition of ``Cogeneration unit'';
? o. Add a new definition of ``Compliance account''; and
? p. Remove the definitions of ``Compliance subaccount'', ``Current year
subaccount'', ``Direct Sale Subaccount'', ``Future year subaccount'',
and ``Unit account''.
Sec. 72.2 Definitions.
* * * * *
Cogeneration unit means a unit that has equipment used to produce
electric energy and forms of useful thermal energy (such as heat or
steam) for industrial, commercial, heating, or cooling purposes,
through sequential use of energy.
* * * * *
Compliance account means an Allowance Tracking System account,
established by the Administrator under Sec. 73.31(a) or (b) of this
chapter or Sec. 74.40(a) of this chapter for an affected source and
for each affected unit at the source.
* * * * *
Sec. 72.7 [Amended]
? 3. Section 72.7 is amended in paragraph (c)(1)(ii), in the first
sentence, by replacing the word ``unit's Allowance Tracking System
account'' with the words ``compliance account of the source that
includes the unit'', and by removing the third sentence of paragraph
(c)(1)(ii).
Sec. 72.9 [Amended]
? 4. Section 72.9 is amended by:
? a. In paragraph (b)(2), replace the word ``unit'' with the words
``source or unit, as appropriate,'';
? b. In paragraph (c)(1)(i), replace the words ``unit's compliance
subaccount'' with the words ``source's compliance account'' and replace
the words ``from the unit'' with the words ``from the affected units at
the source'';
? c. In paragraphs (e)(1) and (e)(2) introductory text, replace the words
``an affected unit'' with the words ``an affected source'';
? d. In paragraph (g)(6), remove the second sentence; and
? e. In paragraph (h)(2), replace the word ``unit'' with the word
``source'' wherever it appears.
Sec. 72.21 [Amended]
? 5. Section 72.21 is amended by:
? a. In paragraph (b)(1), remove the word ``affected'' wherever it
appears; and
? b. In paragraph (e)(2), replace the words ``unit account'' with the
words ``compliance account''.
Sec. 72.24 [Amended]
? 6. Section 72.24 is amended by removing and reserving paragraphs
(a)(5), (a)(7), and (a)(10).
Sec. 72.40 [Amended]
? 7-8. Section 72.40 is amended, in paragraph (a)(1), replace the words
``unit's compliance subaccount'' with the words ``compliance account of
the source where the unit is located''; remove the words ``, or in the
compliance subaccount of another affected unit at the source to the
extent provided in Sec. 73.35(b)(3),''; and replace the words ``from
the unit'' with the words ``from the affected units at the source''.
Sec. 72.72 [Amended]
? 9. Section 72.72 is amended by:
? a. In paragraph (a)(1), add the words ``or affected source'' after the
words ``affected unit'';
? b. In paragraph (a)(2), add the words ``or an affected source's'' after
the words ``affected unit's''; and
? c. In paragraph (a)(3), add the words ``or affected source'' after the
words ``affected unit'' whenever they appear.
Sec. 72.73 [Amended]
? 10. Section 72.73 is amended in paragraph (b)(2) by replacing the words
``the first Acid Rain permit'' with the words ``an Acid Rain permit''.
Sec. 72.90 [Amended]
? 11. Section 72.90 is amended by, in paragraph (a), add, after the words
``each calendar year'', the words ``during 1995 through 2005''.
Sec. 72.95 [Amended]
? 12. Section 72.95 is amended by:
? a. In the introductory text, replace the words ``an affected unit's
compliance subaccount'' with the words ``an affected source's
compliance account''; and
? b. In paragraph (a), replace the words ``by the unit'' with the words
``by the affected units at the source''.
Sec. 72.96 [Amended]
? 13. Section 72.96 is amended in paragraph (b), by replacing the words
``unit''s Allowance Tracking System account'' with the words ``source's
compliance account''.
PART 73--SULFUR DIOXIDE ALLOWANCE SYSTEM
? 1. The authority citation for part 73 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
[[Page 25335]]
Sec. 73.10 [Amended]
? 2. Section 73.10 is amended by:
? a. In paragraph (a), replace the words ``unit account for each'' with
the words ``compliance account for each source that includes a'' and
remove the words ``in each future year subaccount''; and
? b. In paragraphs (b)(1) and (b)(2), replace the words ``unit account
for each'' with the words ``compliance account for each source that
includes a'' and replace the words ``in the future year subaccounts
representing calendar years'' with the words ``for the years''.
Sec. 73.27 [Amended]
? 3. Section 73.27 is amended in paragraphs (c)(3) and (c)(5) by
replacing the words ``unit's Allowance Tracking System account'' with
the words ``compliance account of the source that includes the unit''.
Sec. 73.30 [Amended]
? 4. Section 73.30 is amended by:
? a. In paragraph (a), add the word ``compliance'' after the word
``establish''; replace the words ``affected units'' with the words
``affected sources''; and replace the words ``unit's Allowance Tracking
System account'' with the words ``source's compliance account''; and
? b. In paragraph (b), replace the word ``unit'' with the word ``source''
and replace the words ``Allowance Tracking System account'' with the
words ``general account''.
Sec. 73.31 [Amended]
? 5. Section 73.31 is amended by:
? a. In paragraph (a), replace the words ``an Allowance Tracking System
account'' with the words ``a compliance account'' and replace the words
``each unit'' with the words ``each source that includes a unit'';
? b. In paragraph (b), replace the words ``an Allowance Tracking System
account for the unit.'' with the words ``a compliance account for the
source that includes the unit, unless the source already has a
compliance account.''; and
? c. In paragraph (c)(1)(v), replace the words ``Allowance Tracking
System account'' with the words ``general account'' and remove the
words ``I shall abide by any fiduciary responsibilities assigned
pursuant to the binding agreement.''.
Sec. 73.32 [Removed and Reserved]
? 6. Section 73.32 is removed and reserved.
Sec. 73.33 [Amended]
? 7. Section 73.33 is amended by removing and reserving paragraphs (b)
and (c).
Sec. 73.34 [Amended]
? 8. Section 73.34 is amended by:
? a. Revise paragraphs (a) and (b) to read as set forth below;
? b. In paragraph (c) introductory text, remove the paragraph heading and
replace the words ``compliance, current year, and future year'' with
the words ``compliance account and general account''.
Sec. 73.34 Recordation in accounts.
(a) After a compliance account is established under Sec. 73.31(a)
or (b), the Administrator will record in the compliance account any
allowance allocated to any affected unit at the source for 30 years
starting with the later of 1995 or the year in which the compliance
account is established and any allowance allocated for 30 years
starting with the later of 1995 or the year in which the compliance
account is established and transferred to the source with the transfer
submitted in accordance with Sec. 73.50. In 1996 and each year
thereafter, after Administrator has completed the deductions pursuant
to Sec. 73.35(b), the Administrator will record in the compliance
account any allowance allocated to any affected 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 made) and any allowance allocated
for the new 30th year and transferred to the source with the transfer
submitted in accordance with Sec. 73.50.
(b) After a general account is established under Sec. 73.31(c),
the Administrator will record in the general account any allowance
allocated for 30 years starting with the later of 1995 or the year in
which the general account is established and transferred to the general
account with the transfer submitted in accordance with Sec. 73.50. In
1996 and each year thereafter, after the Administrator has completed
the deductions pursuant to Sec. 73.35(b), the Administrator will
record in the general account any allowance allocated for the new 30th
year (i.e., the year that is 30 years after the calendar year for which
such deductions are made) and transferred to the general account with
the transfer submitted in accordance with Sec. 73.50.
* * * * *
Sec. 73.35 [Amended]
? 9. Section 73.35 is amended by:
? a. In paragraph (a) introductory text and paragraph (a)(1), replace the
words ``unit's'' with the word ``source's'';
? b. In paragraph (a)(2), replace the word ``Such'' with the word
``The'';
? c. In paragraph (a)(2)(i), replace the words ``the unit's compliance
subaccount'' with the words ``the source's compliance account'';
? d. In paragraph (a)(2)(ii), replace the words ``the unit's compliance
subaccount'' with the words ``the source's compliance account'',
replace the words ``compliance subaccount for the unit'' with the words
``source's compliance account'', and replace the word ``or'' with the
word ``and'';
? e. Remove paragraph (a)(2)(iii);
? f. Add a new paragraph (a)(3);
? g. In paragraph (b)(1), replace the words ``compliance subaccount''
with the words ``compliance account'', add the words ``available for
deduction under paragraph (a) of this section'' after the words
``deduct allowances'', and replace the words ``each affected unit's
compliance subaccount'' with the words ``each affected source's
compliance account'';
? h. In paragraph (b)(2), replace the words ``allowances remain in the
compliance subaccount'' with the words ``allowances available for
deduction under paragraph (a) of this section remain in the compliance
account'';
? i. Remove paragraph (b)(3);
? j. Revise paragraph (c)(1) to read as set forth below;
? k. In paragraph (c)(2), replace the words ``for the unit'' with the
words ``for the units at the source'', replace the words ``in its
compliance subaccount.'' with the words ``in the source's compliance
account.'', replace the words ``from the compliance subaccount'' with
the words ``from the compliance account'', and replace the words
``unit's compliance subaccount'' with the words ``source's compliance
account'';
? l. In paragraph (d), replace the words ``for each unit'' with the words
``for each source'' and replace the word ``unit's'' with the word
``source's''; and
? m. Remove paragraph (e).
Sec. 73.35 Compliance.
(a) * * *
(3) The allowance was not previously deducted by the Administrator
in accordance with a State SO2 mass emissions reduction
program under Sec. 51.124(o) of this chapter or otherwise permanently
retired in accordance with Sec. 51.124(p) of this chapter.
* * * * *
(c)(1) Identification of allowances by serial number. The
authorized account representative for a source's compliance account may
request that specific allowances, identified by serial number, in the
compliance account be deducted for a calendar year in accordance with
paragraph (b) or (d) of this section. Such request shall be submitted
to the
[[Page 25336]]
Administrator by the allowance transfer deadline for the year and
include, in a format prescribed by the Administrator, the
identification of the source and the appropriate serial numbers.
* * * * *
Sec. 73.36 [Amended]
? 10. Section 73.36 is amended by:
? a. In paragraph (a), replace the words ``Unit accounts.'' with the
words ``Compliance accounts.'' and replace with words ``compliance
subaccount'' with the words ``compliance account'' whenever they
appear; and
? b. In paragraph (b), replace the words ``current year subaccount'' with
the words ``general account'' whenever they appear and replace the
words ``at the end of the current calendar year'' with the words ``not
transferred pursuant to subpart D to another Allowance Tracking System
account''.
? 11. Section 73.37 is revised to read as follows:
Sec. 73.37 Account error.
The Administrator may, at his or her sole discretion and on his or
her own motion, correct any error in any Allowance Tracking System
account. Within 10 business days of making such correction, the
Administrator will notify the authorized account representative for the
account.
Sec. 73.38 [Amended]
? 12. Section 73.38 is amended by:
? a. In paragraph (a), replace the words ``delete the general account
from the Allowance Tracking System.'' with the words ``close the
general account.''; and
? b. In paragraph (b), replace the words ``for a period of a year or
more'' with the words ``for a 12-month period or longer''; remove the
words ``in its subaccounts''; replace the words ``will notify'' with
the words ``may notify''; remove the words ``and eliminated from the
Allowance Tracking System''; and remove the last sentence.
Sec. 73.50 [Amended]
? 13. Section 73.50 is amended by:
? a. In paragraph (a), remove the words ``, including, but not limited
to, transfers of an allowance to and from contemporaneous future year
subaccounts, and transfers of an allowance to and from compliance
subaccounts and current year subaccounts, and transfers of all
allowances allocated for a unit for each calendar year in perpetuity'';
? b. In paragraph (b)(1)(ii), remove the words ``, or correct indication
on the allowance transfer where a request involves the transfer of the
unit's allowance in perpetuity'';
? c. In paragraph (b)(2)(ii), remove the words ``Allowance Tracking
System'' and ``under 40 CFR part 73, or any other remedies'' and remove
the comma after the words ``under State or Federal law''; and
? d. Remove paragraph (b)(3).
Sec. 73.51 [Removed and Reserved]
? 14. Section 73.51 is removed and reserved.
Sec. 73.52 [Amended]
? 15. Section 73.52 is amended by:
? a. In paragraph (a) introductory text, remove the words ``Sec. 73.50,
Sec. 73.51, and'' and add the words ``(or longer as necessary to
perform a transfer in perpetuity of allowances allocated to a unit)''
after the words ``five business days'';
? b. Revise paragraphs (a)(1), (a)(2) and (a)(3);
? c. Remove paragraph (a)(4);
? d. Revise paragraph (b); and
? e. Add a new paragraph (c) to read as follows:
Sec. 73.52 EPA recordation.
(a) * * *
(1) The transfer is correctly submitted under Sec. 73.50;
(2) The transferor account includes each allowance identified by
serial number in the transfer; and
(3) If the allowances identified by serial number specified
pursuant to Sec. 73.50(b)(1)(ii) are subject to the limitation on
transfer imposed pursuant to Sec. 72.44(h)(1)(i) of this chapter,
Sec. 74.42 of this chapter, or Sec. 74.47(c) of this chapter, the
transfer is in accordance with such limitation.
(b) To the extent an allowance transfer submitted for recordation
after the allowance transfer deadline includes allowances allocated for
any year before the year in which the allowance transfer deadline
occurs, the transfer of such allowance will not be recorded until after
completion of the deductions pursuant to Sec. 73.35(b) for year before
the year in which the allowance transfer deadline occurs.
(c) Where an allowance transfer submitted for recordation fails to
meet the requirements of paragraph (a) of this section, the
Administrator will not record such transfer.
Sec. 73.70 [Amended]
? 16. Section 73.70 is amended by:
? a. In paragraph (e), remove the last two sentences.
? b. In paragraph (f), replace the words ``the subaccount'' by the words
``the Allowance Tracking System account''; and
? c. In paragraph (i)(1), add the words ``source that includes a'' after
the words ``Allowance Tracking System account of each''.
PART 74--SULFUR DIOXIDE OPT-INS
? 1. The authority citation for part 74 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
Sec. 74.4 [Amended]
? 2. Section 74.4 is amended by:
? a. In paragraph (c)(1), replace the words ``a combustion or process
source that is located'' with the words ``one or more combustion or
process sources that are located'', replace the words ``such combustion
or process source and thereafter, does'' with the words ``such
combustion or process sources and thereafter, do'', and replace the
words ``designate, for such combustion or process source'' with the
words ``designate, for such combustion or process sources''; and
? b. In paragraph (c)(2), replace the words ``the combustion or process
source'' with the words ``the combustion or process sources'' whenever
they occur and replace the word ``meets'' with the word ``meet'' in the
first sentence.
Sec. 74.18 [Amended]
? 3. Section 74.18 is amended in paragraph (d) by removing the last sentence.
Sec. 74.40 [Amended]
? 4. Section 74.40 is amended by:
? a. In paragraph (a), replace the words ``an opt-in account'' with the
words ``a compliance account'', replace the words ``an account'' with
the words ``a compliance account (unless the source that includes the
opt-in source already has a compliance account or the opt-in source
has, under Sec. 74.4(c), a different designated representative than
the designated representative for the source)'', and remove the last
sentence.
? b. In paragraph (b), replace the words ``allowance account in the
Allowance Tracking System'' with the words ``compliance account (unless
the source that includes the opt-in source already has a compliance
account or the opt-in source has, under Sec. 74.4(c), a different
designated representative than the designated representative for the
source)''.
? 5. Section 74.42 is revised to read as follows:
Sec. 74.42 Limitation on transfers.
(a) With regard to a transfer request submitted for recordation
during the period starting January 1 and ending with the allowance
transfer deadline in the same year, the Administrator will not record a
transfer of an opt-in
[[Page 25337]]
allowance that is allocated to an opt-in source for the year in which
the transfer request is submitted or a subsequent year.
(b) With regard to a transfer request during the period starting
with the day after an allowance transfer deadline and ending December
31 in the same year, the Administrator will not record a transfer of an
opt-in allowance that is allocated to an opt-in source for a year after
the year in which the transfer request is submitted.
Sec. 74.43 [Amended]
? 6. Section 74.43 is amended by:
? a. In paragraph (a), remove the words ``in lieu of any annual
compliance certification report required under subpart I of part 72 of
this chapter'';
? b. In paragraph (b)(7), replace the word ``At'' with the words, ``In an
annual compliance certification report for a year during 1995 through
2005, at''; and
? c. In paragraph (b)(8), replace the word ``The'' with the words, ``In
an annual compliance certification report for a year during 1995
through 2005, the''.
Sec. 74.44 [Amended]
? 7. Section 74.44 is amended by:
? a. In paragraph (c)(1)(ii), remove the words ``opt-in source's'' and
add the words ``of the source that includes the opt-in source'' after
the word ``System'';
? b. In paragraphs (c)(2)(iii)(C), (c)(2)(iii)(D), (c)(2)(iii)(E)
introductory text, and (c)(2)(iii)(E)(3), replace the words ``opt-in
source's compliance subaccount'' with the words ``compliance account of
the source that includes the opt-in source'' whenever they occur; and
? c. In paragraph (c)(2)(iii)(F), replace the words ``opt-in source's
compliance subaccount'' with the words ``compliance account of the
source that includes the opt-in source'' and replace the words
``source's compliance subaccount'' with the words ``compliance account
of the source that includes the opt-in source''.
Sec. 74.46 [Amended]
? 8. Section 74.46 is amended by removing and reserving paragraph (b)(2).
Sec. 74.47 [Amended]
? 9. Section 74.47 is amended by:
? a. In paragraph (a)(3)(iv), remove the words ``opt-in source's'' and
add the words ``of the source that includes the opt-in source'' after
the word ``System'';
? b. In paragraph (a)(3)(v), replace the word ``Each'' with the word
``The'', remove the words ``replacement unit's'' and ``(ATS)'', and add
the words ``of each source that includes a replacement unit'' after the
word ``System'';
? c. In paragraph (a)(6), replace the words ``Allowance Tracking System
account of each replacement unit'' with the words ``compliance account
of each source that includes a replacement unit'';
? d. In paragraph (c), replace the words ``unit account'' with the words
``compliance account of the source that includes the replacement unit''
and replace the words ``account in the Allowance Tracking System'' with
the words ``Allowance Tracking System account'';
? e. In paragraph (d)(1)(ii)(C), remove the words ``opt-in source's'' and
``(ATS)'' and add the words ``of the source that includes the opt-in
source'' after the word ``System'';
?
f. In paragraph (d)(1)(ii)(D), replace the words ``(ATS) for each''
with the words ``of each source that includes a'';
? g. In paragraph (d)(2)(i), replace the words ``Allowance Tracking
System accounts for the opt-in source and for each replacement unit''
with the words ``compliance account for each source that includes the
opt-in source or a replacement unit'';
? h. In paragraph (d)(2)(i)(B), replace the words ``Allowance Tracking
System account of the opt-in source'' with the words ``compliance
account of the source that includes the opt-in source''; and
? i. In paragraph (d)(2)(ii), replace the words ``Allowance Tracking
System accounts for the opt-in source and for each replacement unit''
with the words ``compliance account for each source that includes the
opt-in source or a replacement unit''.
Sec. 74.49 [Amended]
? 10. Section 74.49 is amended, in paragraph (a) introductory text, by
replacing the words ``an opt-in source's compliance subaccount'' with
the words ``the compliance account of a source that includes an opt-in
source''.
Sec. 74.50 [Amended]
? 11. Section 74.50 is amended by:
? a. In paragraph (a)(2) introductory text, add the words ``source that
includes'' after the words ``the account of the'';
? b. In paragraph (a)(2)(i), replace the words ``opt-in source's
compliance subaccount'' with the words ``the compliance account of the
source that includes the opt-in source''; and
? c. In paragraph (b), replace the words ``the opt-in source's unit
account'' with the words ``the compliance account of the source that
includes the opt-in source''; and
? d. In paragraph (d), replace the words ``an opt-in source does not
hold'' with the words ``the source that includes the opt-in source does
not hold''.
PART 77--EXCESS EMISSIONS
? 1. The authority citation for part 77 continues to read as follows:
Authority: 42 U.S.C. 7601 and 7651, et seq.
Sec. 77.3 [Amended]
? 2. Section 77.3 is amended by:
? a. In paragraph (a), replace the words ``affected unit'' with the words
``affected source'' and replace the word ``unit's Allowance Tracking
System account'' with the words ``source's compliance account'';
? b. In paragraphs (b) and (c), replace the word ``unit'' with the word
``source'' wherever it appears; and
? c. In paragraph (d) introductory text and paragraphs (d)(1) and (d)(2),
replace the word ``unit'' with the word ``source'' whenever it appears;
? d. In paragraphs (d)(3) and (d)(4), replace the words ``unit's
Allowance Tracking System account'' with the words ``source's
compliance account's'' whenever they appear; and
? e. In paragraph (d)(5), replace the words ``unit's compliance
subaccount'' with the words ``source's compliance account''.
Sec. 77.4 [Amended]
? 3. Section 77.4 is amended by:
? a. In paragraph (b)(1), replace the words ``unit's compliance
subaccount'' with the words ``source's compliance account''; and
? b. In paragraphs (c)(1)(ii)(A), (d)(1), (d)(2), (d)(3), (e)(iv),
(g)(2)(ii), (g)(3)(ii), and (g)(3)(iii), replace the word ``unit'' with
the word ``source''; and
? c. In paragraph (k)(2), replace the words ``unit's compliance
subaccount'' with the words ``source's compliance account'' and replace
the word ``unit'' with the word ``source''.
Sec. 77.5 [Amended]
? 4. Section 77.5 is amended by:
? a. In paragraph (b), replace the words ``compliance subaccount'' with
the words ``compliance account'';
? b. In paragraph (c), replace the words ``, from the unit's compliance
subaccount'' with the words ``allocated for the year after the year in
which the source has excess emissions, from the source's compliance
account'', and replace the word ``unit's'' with the word ``source's'';
and
? c. Remove paragraph (d).
Sec. 77.6 [Amended]
? 5. Section 77.6 is amended by:
? a. In paragraph (a)(1), add the words ``occur at the affected source''
after the
[[Page 25338]]
words ``sulfur dioxide'' and replace the words ``owners and operators
of the affected unit'' with the words ``owners and operators
respectively of the affected source and the affected units at the
source or of the affected unit'';
? b. In paragraph (b)(1)(i)(A), replace the word ``unit'' with the words
``source or unit as appropriate''; and
? c. In paragraphs (b)(3),(c), and (f), replace the word ``unit'' with
the words ``source or unit as appropriate''.
PART 78--APPEAL PROCEDURES
? 1. The title of part 78 is revised to read as set forth above.
? 2. 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.
Sec. 78.1 [Amended]
? 3. Section 78.1 is amended by:
? a. In paragraph (a)(1), replace the words ``parts 72, 73, 74, 75, 76,
or 77 of this chapter or part 97 of this chapter'' with the words
``part 72, 73, 74, 75, 76, or 77 of this chapter, subparts AA through
II of part 96 of this chapter, subparts AAA through III of part 96 of
this chapter, and subparts AAAA through subparts IIII of part 96 of
this chapter, or part 97 of this chapter'';
? b. Revise paragraph (b)(2)(i);
? c. Add new paragraphs (b)(7), (b)(8), and (b)(9) to read as follows:
Sec. 78.1 Purpose and scope.
* * * * *
(b) * * *
(2) * * *
(i) The correction of an error in an Allowance Tracking System
account;
* * * * *
(7) Under subparts AA through II of part 96 of this chapter,
(i) The decision on the allocation of CAIR NOX
allowances under Sec. 96.141(b)(2) or (c)(2) 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. 96.154 of
this chapter;
(iii) The correction of an error in a CAIR NOX Allowance
Tracking System account under Sec. 96.156 of this chapter;
(iv) The decision on the transfer of CAIR NOX allowances
under Sec. 96.161 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. 96.175
of this chapter.
(8) Under subparts AAA through III of part 96 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. 96.254 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. 96.261 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. 96.275 of
this chapter.
(9) Under subparts AAAA through IIII of part 96 of this chapter,
(i) The decision on the allocation of CAIR NOX Ozone
Season allowances under Sec. 96.341(b)(2) or (c)(2)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. 96.354 of this chapter;
(iii) The correction of an error in a CAIR NOX Ozone
Season Allowance Tracking System account under Sec. 96.356 of this
chapter;
(iv) The decision on the transfer of CAIR NOX Ozone
Season allowances under Sec. 96.361;
(v) The finalization of control period emissions data, including
retroactive adjustment based on audit;
(vi) The approval or disapproval of a petition under Sec. 96.375
of this chapter.
* * * * *
Sec. 78.3 [Amended]
? 4. Section 78.3 is amended by:
? a. In paragraph (b)(3)(i), add the words ``or the CAIR designated
representative or CAIR authorized account representative under
paragraph (a)(4), (5), or (6) of this section (unless the CAIR
designated representative or CAIR authorized account representative is
the petitioner)'' after the words ``(unless the NOX
authorized account representative is the petitioner)'';
? b. In paragraph (c)(7), replace the words ``or part 97 of this chapter,
as appropriate'' with the words ``, subparts AA through II of part 96
of this chapter, subparts AAA through III of part 96 of this chapter,
subparts AAAA through IIII of part 96 of this chapter, or part 97 of
this chapter, as appropriate'';
? c. In paragraph (d)(3), add the words ``or on an account certificate of
representation submitted by a CAIR designated representative or an
application for a general account submitted by a CAIR authorized
account representative under subparts AA through II, subparts AAA
through III, or subparts AAAA through IIII of part 96 of this chapter''
after the words ``under the NOX Budget Trading Program'';
? d. Add new paragraphs (a)(4), (a)(5), (a)(6), (d)(5), (d)(6), and
(d)(7) to read as follows:
Sec. 78.3 Petition for administrative review and request for
evidentiary hearing.
(a) * * *
(4) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AA through
II of part 96 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.
(5) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AAA through
III of part 96 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 SO2
Allowance Tracking System account, covered by the decision; or
(ii) Any interested person.
(6) The following persons may petition for administrative review of
a decision of the Administrator that is made under subparts AAAA
through IIII of part 96 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 Ozone Season
NOX Allowance Tracking System account, covered by the
decision; or
(ii) Any interested person.
* * * * *
(d) * * *
(5) Any provision or requirement of subparts AA through II of part
96 of this chapter, including the standard requirements under Sec.
96.106 of this chapter and any emission monitoring or reporting
requirements.
(6) Any provision or requirement of subparts AAA through III of
part 96 of this chapter, including the standard requirements under
Sec. 96.206 of this
[[Page 25339]]
chapter and any emission monitoring or reporting requirements.
(7) Any provision or requirement of subparts AAAA through IIII of
part 96 of this chapter, including the standard requirements under
Sec. 96.306 of this chapter and any emission monitoring or reporting
requirements.
Sec. 78.4 [Amended]
? 5. Section 78.4 is amended by adding two new sentences after the fifth
sentence in paragraph (a) to read as follows:
Sec. 78.4 Filings.
(a) * * * Any filings on behalf of owners and operators of a CAIR
NOX, SO2, or NOX Ozone Season unit or
source shall be signed by the CAIR designated representative. Any
filings on behalf of persons with an interest in CAIR NOX
allowances, CAIR SO2 allowances, or CAIR NOX
Ozone Season allowances in a general account shall be signed by the
CAIR authorized account representative. * * *
* * * * *
Sec. 78.5 [Amended]
? 6. Section 78.5 is amended, in paragraph (a), by removing the words ``,
or a claim or error notification was submitted,'' the words ``or in the
claim of error notification'', and the words ``or the period for
submitting a claim of error notification''.
Sec. 78.12 [Amended]
? 7. Section 78.12 is amended by:
? a. In paragraph (a) introductory text, remove the words ``, or to
submit a claim of error notification''; and
? b. In paragraph (a)(2), replace the words ``NOX Budget
permit'' with the words ``, NOX Budget permit, CAIR
permit,''.
Sec. 78.13 [Amended]
? 8. Section 78.13 is amended by, in paragraph (b), removing the word
``also''.
PART 96--[AMENDED]
? 1. Authority citation for Part 96 is revised to read as follows:
Authority: 42 U.S.C. 7401, 7403, 7410, 7601, and 7651, et seq.
? 2. Part 96 is amended by adding subparts AA through II, to read as
follows:
Subpart AA--CAIR NOX Annual Trading Program General Provisions
Sec.
96.101 Purpose.
96.102 Definitions.
96.103 Measurements, abbreviations, and acronyms.
96.104 Applicability.
96.105 Retired unit exemption.
96.106 Standard requirements.
96.107 Computation of time.
96.108 Appeal procedures.
Subpart BB--CAIR Designated Representative for CAIR NOX Sources
96.110 Authorization and responsibilities of CAIR designated
representative.
96.111 Alternate CAIR designated representative.
96.112 Changing CAIR designated representative and alternate CAIR
designated representative; changes in owners and operators.
96.113 Certificate of representation.
96.114 Objections concerning CAIR designated representative.
Subpart CC--Permits
96.120 General CAIR NOX Annual Trading Program permit
requirements.
96.121 Submission of CAIR permit applications.
96.122 Information requirements for CAIR permit applications.
96.123 CAIR permit contents and term.
96.124 CAIR permit revisions.
Subpart DD--[Reserved]
Subpart EE--CAIR NOX Allowance Allocations
96.140 State trading budgets.
96.141 Timing requirements for CAIR NOX allowance
allocations.
96.142 CAIR NOX allowance allocations.
96.143 Compliance supplement pool.
Subpart FF--CAIR NOX Allowance Tracking System
96.150 [Reserved]
96.151 Establishment of accounts.
96.152 Responsibilities of CAIR authorized account representative.
96.153 Recordation of CAIR NOX allowance allocations.
96.154 Compliance with CAIR NOX emissions limitation.
96.155 Banking.
96.156 Account error.
96.157 Closing of general accounts.
Subpart GG--CAIR NOX Allowance Transfers
96.160 Submission of CAIR NOX allowance transfers.
96.161 EPA recordation.
96.162 Notification.
Subpart HH--Monitoring and Reporting
96.170 General requirements.
96.171 Initial certification and recertification procedures.
96.172 Out of control periods.
96.173 Notifications.
96.174 Recordkeeping and reporting.
96.175 Petitions.
96.176 Additional requirements to provide heat input data.
Subpart II--CAIR NOX Opt-in Units
96.180 Applicability.
96.181 General.
96.182 CAIR designated representative.
96.183 Applying for CAIR opt-in permit.
96.184 Opt-in process.
96.185 CAIR opt-in permit contents.
96.186 Withdrawal from CAIR NOX Annual Trading Program.
96.187 Change in regulatory status.
96.188 NOX allowance allocations to CAIR NOX
opt-in units.
Subpart AA--CAIR NOX Annual Trading Program General Provisions
Sec. 96.101 Purpose.
This subpart and subparts BB through II establish the model rule
comprising general provisions and the designated representative,
permitting, allowance, monitoring, and opt-in provisions for the State
Clean Air Interstate Rule (CAIR) NOX Annual Trading Program,
under section 110 of the Clean Air Act and Sec. 51.123 of this
chapter, as a means of mitigating interstate transport of fine
particulates and nitrogen oxides. The owner or operator of a unit or a
source shall comply with the requirements of this subpart and subparts
BB through II as a matter of federal law only if the State with
jurisdiction over the unit and the source incorporates by reference
such subparts or otherwise adopts the requirements of such subparts in
accordance with Sec. 51.123(o)(1) or (2) of this chapter, the State
submits to the Administrator one or more revisions of the State
implementation plan that include such adoption, and the Administrator
approves such revisions. If the State adopts the requirements of such
subparts in accordance with Sec. 51.123(o)(1) or (2) of this chapter,
then the State authorizes the Administrator to assist the State in
implementing the CAIR NOX Annual Trading Program by carrying
out the functions set forth for the Administrator in such subparts.
Sec. 96.102 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.
Administrator means the Administrator of the United States
Environmental Protection Agency or the Administrator's duly authorized
representative.
[[Page 25340]]
Allocate or allocation means, with regard to CAIR NOX
allowances issued under subpart EE, the determination by the permitting
authority or the Administrator of the amount of such CAIR
NOX allowances to be initially credited to a CAIR
NOX unit or a new unit set-aside and, with regard to CAIR
NOX allowances issued under Sec. 96.188, the determination
by the permitting authority of the amount of such CAIR NOX
allowances to be initially credited to a CAIR NOX unit.
Allowance transfer deadline means, for a control period, 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 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. 96.154.
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.
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.
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 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.
CAIR NOX allowance means a limited authorization issued by the
permitting authority under subpart EE of this part or Sec. 96.188 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) 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 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
approved and administered by the Administrator in accordance with
subparts AA through II of this part and Sec. 51.123 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 of the CAIR
NOX allowances available for deduction for the source under
Sec. 96.154(a) and (b) for a 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 approved and administered by the Administrator in accordance
with subparts AAAA through IIII of this part and Sec. 51.123 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.
96.304 and a CAIR NOX Ozone Season opt-in unit under subpart
IIII of this part.
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. 96.104 and, except
for purposes of Sec. 96.105 and
[[Page 25341]]
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 includes one or more
CAIR SO2 units.
CAIR SO2 Trading Program means a multi-state sulfur
dioxide air pollution control and emission reduction program approved
and administered by the Administrator in accordance with subparts AAA
through III of this part and Sec. 51.124 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. 96.204 and a CAIR
SO2 opt-in unit under subpart III of this part.
Clean Air Act or CAA means the Clean Air Act, 42 U.S.C. 7401, et seq.
Coal means any solid fuel classified as anthracite, bituminous,
subbituminous, or lignite.
Coal-derived fuel means any fuel (whether in a solid, liquid, or
gaseous state) produced by the mechanical, thermal, or chemical
processing of coal.
Coal-fired means:
(1) Except for purposes of subpart EE of this part, combusting any
amount of coal or coal-derived fuel, alone or in combination with any
amount of any other fuel, during any year; or
(2) For purposes of subpart EE of this part, combusting any amount
of coal or coal-derived fuel, alone or in combination with any amount
of any other fuel, during a specified year.
Cogeneration unit means a stationary, fossil-fuel-fired boiler or
stationary, fossil-fuel-fired combustion turbine:
(1) Having equipment used to produce electricity and useful thermal
energy for industrial, commercial, heating, or cooling purposes through
the sequential use of energy; and
(2) Producing during the 12-month period starting on the date the
unit first produces electricity and during any calendar year after
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 heat recovery steam generator and
steam turbine.
Commence commercial operation means, with regard to a unit serving
a generator:
(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.
(i) For a unit that is a CAIR NOX unit under Sec.
96.104 on 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 unit's date of commencement of
commercial operation.
(ii) For a unit that is a CAIR NOX unit under Sec.
96.104 on 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), 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. 96.105, for a unit that is not a CAIR NOX
unit under Sec. 96.104 on the date the unit commences commercial
operation as defined in paragraph (1) of this definition and is not a
unit under paragraph (3) 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 unit's date of
commencement of commercial operation.
(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),
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 paragraph (1) of this definition and except as
provided in Sec. 96.184(h) or Sec. 96.187(b)(3), for a CAIR
NOX opt-in unit or 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 unit's date
for commencement of commercial operation shall be the date on which the
owner or operator is required to start monitoring and reporting the
NOX emissions rate and the heat input of the unit under
Sec. 96.184(b)(1)(i).
(i) For a unit with a date for commencement of commercial operation
as defined in paragraph (3) 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 unit's date of
commencement of commercial operation.
(ii) For a unit with a date for commencement of commercial
operation as defined in paragraph (3) of this definition and that is
subsequently replaced by a unit at the same source (e.g., repowered),
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.
(4) Notwithstanding paragraphs (1) through (3) 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. 96.105.
(i) For a unit that is a CAIR NOX unit under Sec.
96.104 on the date the unit commences operation as defined in paragraph
(1) of this definition and that subsequently undergoes a physical
change (other than replacement of the
[[Page 25342]]
unit by a unit at the same source), such date shall remain the unit's
date of commencement of operation.
(ii) For a unit that is a CAIR NOX unit under Sec.
96.104 on the date the unit commences operation as defined in paragraph
(1) of this definition and that is subsequently replaced by a unit at
the same source (e.g., repowered), 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.
(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 date the unit commences operation as
defined in paragraph (1) of this definition and is not a unit under
paragraph (3) of this definition, the unit's date for commencement of
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 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 unit's date of commencement of
operation.
(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), 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.
(3) Notwithstanding paragraph (1) of this definition and except as
provided in Sec. 96.184(h) or Sec. 96.187(b)(3), for a CAIR
NOX opt-in unit or 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 unit's date
for commencement of operation shall be the date on which the owner or
operator is required to start monitoring and reporting the
NOX emissions rate and the heat input of the unit under
Sec. 96.184(b)(1)(i).
(i) For a unit with a date for commencement of operation as defined
in paragraph (3) 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 unit's date of commencement of
operation.
(ii) For a unit with a date for commencement of operation as
defined in paragraph (3) of this definition and that is subsequently
replaced by a unit at the same source (e.g., repowered), 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.
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. 96.154.
Continuous emission monitoring system or CEMS means the equipment
required under subpart HH of this part to sample, analyze, measure, and
provide, by means of readings recorded at least once every 15 minutes
(using an automated data acquisition and handling system (DAHS)), a
permanent record of nitrogen oxides emissions, stack gas volumetric
flow rate, stack gas moisture content, and oxygen or carbon dioxide
concentration (as applicable), in a manner consistent with part 75 of
this chapter. The following systems are the principal types of
continuous emission monitoring systems required under subpart HH of
this part:
(1) A flow monitoring system, consisting of a stack flow rate
monitor and an automated data acquisition and handling system and
providing a permanent, continuous record of stack gas volumetric flow
rate, in standard cubic feet per hour (scfh);
(2) A nitrogen oxides concentration monitoring system, consisting
of a NOX pollutant concentration monitor and an automated
data acquisition and handling system and providing a permanent,
continuous record of NOX emissions, in parts per million (ppm);
(3) A nitrogen oxides emission rate (or NOX-diluent)
monitoring system, consisting of a NOX pollutant
concentration monitor, a diluent gas (CO2 or O2)
monitor, and an automated data acquisition and handling system and
providing a permanent, continuous record of NOX
concentration, in parts per million (ppm), diluent gas concentration,
in percent CO2 or O2; and NOX emission
rate, in pounds per million British thermal units (lb/mmBtu);
(4) A moisture monitoring system, as defined in 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 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
[[Page 25343]]
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.
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, starting from the initial
installation of a unit, the maximum amount of fuel per hour (in Btu/hr)
that a unit is capable of combusting on a steady state basis as
specified by the manufacturer of the unit, or, starting from the
completion of any subsequent physical change in the unit resulting in a
decrease in the maximum amount of fuel per hour (in Btu/hr) that a unit
is capable of combusting on a steady state basis, such decreased
maximum amount as specified by the person conducting the physical change.
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 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
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.
Operator means any person who operates, controls, or supervises a
CAIR NOX unit or a CAIR NOX source and shall
include, but not be limited to, any holding company, utility system, or
plant manager of such a unit or source.
Owner means any of the following persons:
(1) With regard to a CAIR NOX source or a CAIR
NOX unit at a source, respectively:
(i) Any holder of any portion of the legal or equitable title in a
CAIR NOX unit at the source or the CAIR NOX unit;
(ii) Any holder of a leasehold interest in a CAIR NOX
unit at the source or the CAIR NOX unit; or
(iii) Any purchaser of power from a CAIR NOX unit at the
source or the CAIR NOX unit under a life-of-the-unit, firm
power contractual arrangement; provided that, unless expressly provided
for in a leasehold agreement, owner shall not include a passive lessor,
or a person who has an equitable interest through such lessor, whose
rental payments are not based (either directly or indirectly) on the
revenues or income from such CAIR NOX unit; or
(2) With regard to any general account, any person who has an
ownership interest with respect to the CAIR NOX allowances
held in the general account and who is subject to the binding agreement
for the CAIR authorized account representative to represent the
person's ownership interest with respect to CAIR NOX allowances.
Permitting authority means the State air pollution control agency,
local agency, other State agency, or other agency authorized by the
Administrator to issue or revise permits to meet the requirements of
the CAIR NOX Annual Trading Program 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
correspondence log, or by a notation made on the document, information,
or correspondence, by the permitting authority or the Administrator in
the regular course of business.
Recordation, record, or recorded means, with regard to 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.
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.
Serial number means, for a CAIR NOX allowance, the
unique identification number assigned to each CAIR NOX
allowance by the Administrator.
Sequential use of energy means:
(1) For a topping-cycle cogeneration unit, the use of reject heat from
[[Page 25344]]
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.
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
adopts the CAIR NOX Annual Trading Program pursuant to Sec.
51.123(o)(1) or (2) 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 owned or operated by a utility and dedicated to
delivering electricity to customers.
Sec. 96.103 Measurements, abbreviations, and acronyms.
Measurements, abbreviations, and acronyms used in this part are
defined as follows:
Btu--British thermal unit.
CO2--carbon dioxide.
NOX--nitrogen oxides.
hr--hour.
kW--kilowatt electrical.
kWh--kilowatt hour.
mmBtu--million Btu.
MWe--megawatt electrical.
MWh--megawatt hour.
O2--oxygen.
ppm--parts per million.
lb--pound.
scfh--standard cubic feet per hour.
SO2--sulfur dioxide.
H2O--water.
yr--year.
Sec. 96.104 Applicability.
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:
(a) Except as provided in paragraph (b) of this section, a
stationary, fossil-fuel-fired boiler or stationary, fossil-fuel-fired
combustion turbine serving at any time, since the start-up of the
unit's combustion chamber, a generator with nameplate capacity of more
than 25 MWe producing electricity for sale.
(b) For a unit that qualifies as a cogeneration unit during the 12-
month period starting on the date the unit first produces electricity
and continues to qualify as a cogeneration unit, a cogeneration unit
serving at any time a generator with nameplate capacity of more than 25
MWe and 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. If a unit
qualifies as a cogeneration unit during the 12-month period starting on
the date the unit first produces electricity but subsequently no longer
qualifies as a cogeneration unit, the unit shall be subject to
paragraph (a) of this section starting on the day on which the unit
first no longer qualifies as a cogeneration unit.
Sec. 96.105 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. 96.102, Sec. 96.103,
Sec. 96.104, Sec. 96.106(c)(4) through (8), Sec. 96.107, and
subparts 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.
[[Page 25345]]
(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 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. 96.122 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 operation and commercial operation on
the first date on which the unit resumes operation.
Sec. 96.106 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. 96.122 in accordance with the deadlines
specified in Sec. 96.121(a) and (b); 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. 96.154(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 starting on the later of January
1, 2009 or the deadline for meeting the unit's monitor certification
requirements under Sec. 96.170(b)(1),(2), or (5).
(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 subpart EE 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. 96.105 and no provision of law
shall be construed to limit the authority of the State or 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 FF, GG, or
II of this part, every allocation, transfer, or deduction of a CAIR
NOX allowance to or from a CAIR NOX unit's
compliance account is incorporated automatically in any CAIR permit of
the source that includes the CAIR NOX unit.
(d) Excess emissions requirements. (1) If a CAIR NOX
source emits nitrogen oxides during any control period in excess of the
CAIR NOX emissions limitation, then:
(i) 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.
96.154(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
(ii) 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.
(2) [Reserved.]
(e) Recordkeeping and reporting requirements. (1) Unless otherwise
provided, the owners and operators of
[[Page 25346]]
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. 96.113 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. 96.113 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. 96.105 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. 96.107 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. 96.108 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. 96.110 Authorization and responsibilities of CAIR designated
representative.
(a) Except as provided under Sec. 96.111, 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.
96.113(a)(4)(iv).
(c) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 96.113, 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. 96.113 for a CAIR designated representative
of the source and the CAIR NOX units at the source.
(e)(1) Each submission under the CAIR NOX Annual Trading
Program shall be submitted, signed, and certified by the CAIR
designated representative for each CAIR NOX source on behalf
of which the submission is made. Each such submission shall include the
following certification statement by the CAIR designated
representative: ``I am authorized to make this submission on behalf of
the owners and operators of the source or units for which the
submission is made. I certify under penalty of law that I have
personally examined, and am familiar with, the statements and
information submitted in this document and all its attachments. Based
on my inquiry of those individuals with primary responsibility for
obtaining the information, I certify that the statements and
information are to the best of my knowledge and belief true, accurate,
and complete. I am aware that there are significant penalties for
submitting false statements and information or omitting required
statements and information, including the possibility of fine or
imprisonment.''
(2) The permitting authority and the Administrator will accept or
act on a submission made on behalf of owner or operators of a CAIR
NOX source or a CAIR NOX unit only if the
submission has been made, signed, and certified in accordance with
paragraph (e)(1) of this section.
Sec. 96.111 Alternate CAIR designated representative.
(a) A certificate of representation under Sec. 96.113 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.
[[Page 25347]]
(b) Upon receipt by the Administrator of a complete certificate of
representation under Sec. 96.113, 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. 96.102, 96.110(a) and
(d), 96.112, 96.113, 96.151 and 96.182, 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. 96.112 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. 96.113. 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. 96.113. 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 a new 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. 96.113, such new 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 new 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.
96.113 amending the list of owners and operators to include the change.
Sec. 96.113 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.
(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 customer purchases power from a CAIR NOX unit under
a life-of-the-unit, firm power contractual arrangement, I certify that:
I have given a written notice of my selection as the `CAIR designated
representative' or `alternate CAIR designated representative', as
applicable, and of the agreement by which I was selected to each owner
and operator of the source and of each CAIR NOX unit at the
source; and CAIR NOX allowances and proceeds of transactions
involving CAIR NOX allowances will be deemed to be held or
distributed in proportion to each holder's legal, equitable, leasehold,
or contractual reservation or entitlement, except that, if such
multiple holders have expressly provided for a different distribution
of CAIR NOX allowances by contract, CAIR NOX
allowances and proceeds of transactions involving CAIR NOX
allowances will be deemed to be held or distributed in accordance with
the contract.''
(5) The signature of the CAIR designated representative and any
alternate CAIR designated representative and the dates signed.
(b) Unless otherwise required by the permitting authority or the
Administrator, documents of agreement referred to in the certificate of
representation shall not be submitted to the permitting authority or
the Administrator. Neither the permitting authority nor the
Administrator shall be under any obligation to review or evaluate the
sufficiency of such documents, if submitted.
Sec. 96.114 Objections concerning CAIR designated representative.
(a) Once a complete certificate of representation under Sec.
96.113 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. 96.113 is received by the Administrator.
(b) Except as provided in Sec. 96.112(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
[[Page 25348]]
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.
Subpart CC--Permits
Sec. 96.120 General CAIR 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 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. 96.121 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. 96.122 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 operation.
(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. 96.122 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.
Sec. 96.122 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. 96.106.
Sec. 96.123 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. 96.122.
(b) Each CAIR permit is deemed to incorporate automatically the
definitions of terms under Sec. 96.102 and, upon recordation by the
Administrator under subpart 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. 96.124 CAIR permit revisions.
Except as provided in Sec. 96.123(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. 96.140 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 budget
State State trading budget for 2015 and
for 2009-2014 (tons) thereafter (tons)
------------------------------------------------------------------------
Alabama..................... 69,020 57,517
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 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
[[Page 25349]]
Virginia.................... 36,074 30,062
West Virginia............... 74,220 61,850
Wisconsin................... 40,759 33,966
------------------------------------------------------------------------
Sec. 96.141 Timing requirements for CAIR NOX allowance
allocations.
(a) By October 31, 2006, the permitting authority will submit to
the Administrator the CAIR NOX allowance allocations, in a
format prescribed by the Administrator and in accordance with Sec.
96.142(a) and (b), for the control periods in 2009, 2010, 2011, 2012,
2013, and 2014.
(b)(1) By October 31, 2009 and October 31 of each year thereafter,
the permitting authority will submit to the Administrator the CAIR
NOX allowance allocations, in a format prescribed by the
Administrator and in accordance with Sec. 96.142(a) and (b), for the
control period in the sixth year after the year of the applicable
deadline for submission under this paragraph.
(2) If the permitting authority fails to submit to the
Administrator the CAIR NOX allowance allocations in
accordance with paragraph (b)(1) of this section, the Administrator
will assume that the allocations of CAIR NOX allowances for
the applicable control period are the same as for the control period
that immediately precedes the applicable control period, except that,
if the applicable control period is in 2015, the Administrator will
assume that the allocations equal 83 percent of the allocations for the
control period that immediately precedes the applicable control period.
(c)(1) By October 31, 2009 and October 31 of each year thereafter,
the permitting authority will submit to the Administrator the CAIR
NOX allowance allocations, in a format prescribed by the
Administrator and in accordance with Sec. 96.142(a), (c), and (d), for
the control period in the year of the applicable deadline for
submission under this paragraph.
(2) If the permitting authority fails to submit to the
Administrator the CAIR NOX allowance allocations in
accordance with paragraph (c)(1) of this section, the Administrator
will assume that the allocations of CAIR NOX allowances for
the applicable control period are the same as for the control period
that immediately precedes the applicable control period, except that,
if the applicable control period is in 2015, the Administrator will
assume that the allocations equal 83 percent of the allocations for the
control period that immediately precedes the applicable control period
and except that any CAIR NOX unit that would otherwise be
allocated CAIR NOX allowances under Sec. 96.142(a) and (b),
as well as under Sec. 96.142(a), (c), and (d), for the applicable
control period will be assumed to be allocated no CAIR NOX
allowances under Sec. 96.142(a), (c), and (d) for the applicable
control period.
Sec. 96.142 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 permitting authority for the unit, 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
3,414 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.
(b)(1) For each control period in 2009 and thereafter, the
permitting authority will allocate to all CAIR NOX units in
the 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 State trading budget
under Sec. 96.140 (except as provided in paragraph (d) of this section).
[[Page 25350]]
(2) The permitting authority 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 permitting
authority will allocate CAIR NOX allowances to CAIR
NOX units in the State that commenced operation on or after
January 1, 2001 and do not yet have a baseline heat input (as
determined under paragraph (a) of this section), in accordance with the
following procedures:
(1) The permitting authority 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 2013, and 3 percent for a control period
in 2014 and thereafter, of the amount of tons of NOX
emissions in the State trading budget under Sec. 96.140.
(2) The CAIR designated representative of such a CAIR
NOX unit may submit to the permitting authority a request,
in a format specified by the permitting authority, 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. The CAIR
NOX allowance allocation request must be submitted on or
before July 1 of the first control period for which the CAIR
NOX allowances are requested 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 permitting authority 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 permitting authority will accept an allowance allocation
request only if the request meets, or is adjusted by the permitting
authority as necessary to meet, the requirements of paragraphs (c)(2)
and (3) of this section.
(ii) On or after July 1 of the control period, the permitting
authority will determine the sum of the CAIR NOX allowances
requested (as adjusted under paragraph (c)(4)(i) of this section) in
all allowance allocation requests accepted under paragraph (c)(4)(i) of
this section for the control period.
(iii) If the amount of CAIR NOX allowances in the new
unit set-aside for the control period is greater than or equal to the
sum under paragraph (c)(4)(ii) of this section, then the permitting
authority 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 permitting authority
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 permitting authority 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 for the
control period, the permitting authority will allocate to each CAIR
NOX unit that was allocated CAIR NOX allowances
under paragraph (b) of this section 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 State trading budget under Sec. 96.140, and rounded
to the nearest whole allowance as appropriate.
Sec. 96.143 Compliance supplement pool.
(a) In addition to the CAIR NOX allowances allocated
under Sec. 96.142, the permitting authority 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
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 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
------------------------------------------------------------------------
(b) For any CAIR NOX unit in the State that achieves
NOX emission reductions in 2007 and 2008 that are not
necessary to comply with any State or federal emissions limitation
applicable during such years, 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 permitting authority by July 1, 2009 a
request, in a format specified by the permitting authority, for
allocation of an amount of CAIR NOX allowances from the
compliance supplement pool not exceeding the sum of the amounts (in
tons) of the unit's
[[Page 25351]]
NOX emission reductions in 2007 and 2008 that are not
necessary to comply with any State or federal emissions limitation
applicable during such years, determined in accordance with subpart HH
of this part.
(c) For any CAIR NOX unit in the 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 permitting authority by July 1, 2009 a
request, in a format specified by the permitting authority, 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 permitting authority will review each request under
paragraph (b) or (c) of this section submitted by July 1, 2009 and will
allocate CAIR NOX allowances for the control period in 2009
to CAIR NOX units in the State and covered by such request
as follows:
(1) Upon receipt of each such request, the permitting authority
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
permitting authority 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
permitting authority 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 number 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 November 30, 2009, the permitting authority will determine,
and submit to the Administrator, the allocations under paragraph (d)(3)
or (4) of this section.
(5) By January 1, 2010, the Administrator will record the
allocations under paragraph (d)(5) of this section.
Subpart FF--CAIR NOX Allowance Tracking System
Sec. 96.150 [Reserved]
Sec. 96.151 Establishment of accounts.
(a) Compliance accounts. Except as provided in Sec. 96.184(e),
upon receipt of a complete certificate of representation under Sec.
96.113, 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.
[[Page 25352]]
(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.
(i) Upon receipt by the Administrator of a complete application for
a general account under paragraph (b)(1) of this section:
(A) The Administrator will establish a general account for the
person or persons for whom the application is submitted.
(B) The CAIR authorized account representative and any alternate
CAIR authorized account representative for the general account shall
represent and, by his or her representations, actions, inactions, or
submissions, legally bind each person who has an ownership interest
with respect to CAIR NOX allowances held in the general
account in all matters pertaining to the CAIR NOX Annual
Trading Program, notwithstanding any agreement between the CAIR
authorized account representative or any alternate CAIR authorized
account representative and such person. Any such person shall be bound
by any order or decision issued to the CAIR authorized account
representative or any alternate CAIR authorized account representative
by the Administrator or a court regarding the general account.
(C) Any representation, action, inaction, or submission by any
alternate CAIR authorized account representative shall be deemed to be
a representation, action, inaction, or submission by the CAIR
authorized account representative.
(ii) Each submission concerning the general account shall be
submitted, signed, and certified by the CAIR authorized account
representative or any alternate CAIR authorized account representative
for the persons having an ownership interest with respect to CAIR
NOX allowances held in the general account. Each such
submission shall include the following certification statement by the
CAIR authorized account representative or any alternate CAIR authorized
account representative: ``I am authorized to make this submission on
behalf of the persons having an ownership interest with respect to the
CAIR NOX allowances held in the general account. I certify
under penalty of law that I have personally examined, and am familiar
with, the statements and information submitted in this document and all
its attachments. Based on my inquiry of those individuals with primary
responsibility for obtaining the information, I certify that the
statements and information are to the best of my knowledge and belief
true, accurate, and complete. I am aware that there are significant
penalties for submitting false statements and information or omitting
required statements and information, including the possibility of fine
or imprisonment.''
(iii) The Administrator will accept or act on a submission
concerning the general account only if the submission has been made,
signed, and certified in accordance with paragraph (b)(2)(ii) of this
section.
(3) Changing CAIR authorized account representative and alternate
CAIR authorized account representative; changes in persons with
ownership interest.
(i) The CAIR authorized account representative for a general
account may be changed at any time upon receipt by the Administrator of
a superseding complete application for a general account under
paragraph (b)(1) of this section. Notwithstanding any such change, all
representations, actions, inactions, and submissions by the previous
CAIR authorized account representative before the time and date when
the Administrator receives the superseding application for a general
account shall be binding on the new CAIR authorized account
representative and the persons with an ownership interest with respect
to the CAIR NOX allowances in the general account.
(ii) The alternate CAIR authorized account representative for a
general account may be changed at any time upon receipt by the
Administrator of a superseding complete application for a general
account under paragraph (b)(1) of this section. Notwithstanding any
such change, all representations, actions, inactions, and submissions
by the previous alternate CAIR authorized account representative before
the time and date when the Administrator receives the superseding
application for a general account shall be binding on the new alternate
CAIR authorized account representative and the persons with an
ownership interest with respect to the CAIR NOX allowances
in the general account.
(iii)(A) In the event a new 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 new 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 new 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 persons, 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.
(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 alternative CAIR authorized account
representative for a general account shall affect any representation,
action, inaction, or submission of the CAIR authorized account
representative or any alternative 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 alternative CAIR authorized account representative for a general
account, including private legal disputes concerning the proceeds of
CAIR NOX allowance transfers.
(c) Account identification. The Administrator will assign a unique
identifying number to each account established under paragraph (a) or
(b) of this section.
[[Page 25353]]
Sec. 96.152 Responsibilities of CAIR authorized account
representative.
Following the establishment of a CAIR NOX Allowance
Tracking System account, all submissions to the Administrator
pertaining to the account, including, but not limited to, submissions
concerning the deduction or transfer of CAIR NOX allowances
in the account, shall be made only by the CAIR authorized account
representative for the account.
Sec. 96.153 Recordation of CAIR NOX allowance allocations.
(a) By December 1, 2006, the Administrator will record in the CAIR
NOX source's compliance account the CAIR NOX
allowances allocated for the CAIR NOX units at a source, as
submitted by the permitting authority in accordance with Sec.
96.141(a), for the control periods in 2009, 2010, 2011, 2012, 2013, and
2014.
(b) By December 1, 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,
as submitted by the permitting authority or as determined by the
Administrator in accordance with Sec. 96.141(b), for the control
period in 2015.
(c) In 2011 and each year thereafter, after the Administrator has
made all deductions (if any) from a CAIR NOX source's
compliance account under Sec. 96.154, 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 or determined
by the Administrator in accordance with Sec. 96.141(b), for the
control period in the sixth year after the year of the control period
for which such deductions were or could have been made.
(d) 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 or determined by the Administrator in accordance with Sec.
96.141(c), for the control period in the year of the applicable
deadline for recordation under this paragraph.
(e) 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. 96.154 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;
(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. 96.160 by the allowance transfer deadline
for the control period; and
(3) Are not necessary for deductions for excess emissions for a
prior control period under paragraph (d) of this section.
(b) Deductions for compliance. Following the recordation, in
accordance with Sec. 96.161, 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
unit 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 paragraph (b) or (d) of this section.
(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.
Sec. 96.155 Banking.
(a) CAIR NOX allowances may be banked for future use or
transfer in a compliance account or a general
[[Page 25354]]
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. 96.154, Sec. 96.156, or subpart GG of this part.
Sec. 96.156 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. 96.157 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.
96.160 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.
96.160 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. 96.160 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. 96.161 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. 96.160; 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. 96.154 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. 96.162 Notification.
(a) Notification of recordation. Within 5 business days of
recordation of a CAIR NOX allowance transfer under Sec.
96.161, 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. 96.161(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. 96.170 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. 96.102 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. 96.102. 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. 96.171 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. 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,
[[Page 25355]]
after the date on which the unit commences commercial operation.
(3) For the owner or operator of a CAIR NOX unit for
which construction of a new stack or flue or installation of add-on
NOX emission controls is completed after the applicable
deadline under paragraph (b)(1), (2), (4), or (5) of this section, by
90 unit operating days or 180 calendar days, whichever occurs first,
after the date on which emissions first exit to the atmosphere through
the new stack or flue or add-on NOX emissions controls.
(4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this
section, for the owner or operator of a unit for which a CAIR opt-in
permit application is submitted and not withdrawn and a CAIR opt-in
permit is not yet issued or denied under subpart II of this part, by
the date specified in Sec. 96.184(b).
(5) Notwithstanding the dates in paragraphs (b)(1), (2), and (4) of
this section and solely for purposes of Sec. 96.106(c)(2), 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. 96.184(g).
(c) Reporting data. (1) Except as provided in paragraph (c)(2) of
this section, 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.
(2) The owner or operator of a CAIR NOX unit that does
not meet the applicable compliance date set forth in paragraph (b)(3)
of this section for any monitoring system under paragraph (a)(1) of
this section shall, for each such monitoring system, determine, record,
and report substitute data 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, in lieu of the maximum potential (or, as appropriate,
minimum potential) values, for a parameter if the owner or operator
demonstrates that there is continuity between the data streams for that
parameter before and after the construction or installation under
paragraph (b)(3) of this section.
(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.
96.175.
(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, 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. 96.105 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 permitting authority for use at that unit that provides emission
data for the same pollutant or parameter as the retired or discontinued
monitoring system; or
(iii) The 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. 96.171(d)(3)(i).
Sec. 96.171 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. 96.170(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. 96.170(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, Sec. 75.17, or subpart H of part 75 of this chapter,
the CAIR designated representative shall resubmit the petition to the
Administrator under Sec. 96.175(a) 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. 96.170(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.
96.170(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. 96.170(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
[[Page 25356]]
monitoring system under Sec. 96.170(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 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. 96.170(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. 96.170(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 permitting authority, the
appropriate EPA Regional Office, and the Administrator written notice
of the dates of certification testing, in accordance with Sec. 96.173.
(ii) Certification application. The CAIR designated representative
shall submit to the permitting authority 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 permitting
authority 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 permitting authority
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 permitting authority.
(iv) Certification application approval process. The permitting
authority 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 permitting authority 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 permitting authority
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 permitting authority 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 permitting authority 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 permitting authority
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 permitting authority
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 permitting authority or, for a CAIR
NOX opt-in unit or 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
Administrator may issue a notice of disapproval of the certification
status of a monitor in accordance with Sec. 96.172(b).
(v) Procedures for loss of certification. If the permitting
authority or 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
[[Page 25357]]
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 permitting authority's or 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 and, if applicable, the permitting
authority 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. 96.172 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. 96.171 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 permitting authority or, for a CAIR
NOX opt-in unit or 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
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 permitting authority or 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.
96.171 for each disapproved monitoring system.
Sec. 96.173 Notifications.
The CAIR designated representative for a CAIR NOX unit
shall submit written notice to the permitting authority and the
Administrator in accordance with Sec. 75.61 of this chapter, 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.
Sec. 96.174 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.
96.110(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.
96.183 and 96.184(a).
(c) Certification Applications. The CAIR designated representative
shall submit an application to the permitting authority within 45 days
after completing all initial certification or recertification tests
required under Sec. 96.171, 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; or
(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. 96.170(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.
(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 or CAIR SO2 Trading Program, quarterly
reports shall include the applicable data and information required by
subparts F through H 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
[[Page 25358]]
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. 96.175 Petitions.
(a) Except as provided in paragraph (b)(2) of this section, the
CAIR designated representative of a CAIR NOX unit that is
subject to an Acid Rain emissions limitation 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.
(b)(1) The CAIR designated representative of a CAIR NOX
unit that is not subject to an Acid Rain emissions limitation may
submit a petition under Sec. 75.66 of this chapter to the permitting
authority and 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 both the permitting authority and the Administrator.
(2) The CAIR designated representative of a CAIR NOX
unit that is subject to an Acid Rain emissions limitation may submit a
petition under Sec. 75.66 of this chapter to the permitting authority
and the Administrator requesting approval to apply an alternative to a
requirement concerning any additional continuous emission monitoring
system required under Sec. 75.72 of this chapter. Application of an
alternative to any such requirement is in accordance with this subpart
only to the extent that the petition is approved in writing by both the
permitting authority and the Administrator.
Sec. 96.176 Additional requirements to provide heat input data.
The owner or operator of a CAIR NOX unit that monitors
and reports NOX mass emissions using a NOX
concentration system and a flow system shall also monitor and report
heat input rate at the unit level using the procedures set forth in
part 75 of this chapter.
Subpart II--CAIR NOX Opt-in Units
Sec. 96.180 Applicability.
A CAIR NOX opt-in unit must be a unit that:
(a) Is located in the State;
(b) Is not a CAIR NOX unit under Sec. 96.104 and is not
covered by a retired unit exemption under Sec. 96.105 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. 96.181 General.
(a) Except as otherwise provided in Sec. Sec. 96.101 through
96.104, Sec. Sec. 96.106 through 96.108, 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. 96.182 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. 96.183 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. 96.180 may apply for an initial
CAIR opt-in permit at any time, except as provided under Sec.
96.186(f) and (g), and, in order to apply, must submit the following:
(1) A complete CAIR permit application under Sec. 96.122;
(2) A certification, in a format specified by the permitting
authority, that the unit:
(i) Is not a CAIR NOX unit under Sec. 96.104 and is not
covered by a retired unit exemption under Sec. 96.105 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. 96.122;
(3) A monitoring plan in accordance with subpart HH of this part;
(4) A complete certificate of representation under Sec. 96.113
consistent with Sec. 96.182, 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. 96.188(c) (subject
to the conditions in Sec. Sec. 96.184(h) and 96.186(g)).
(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. 96.122 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 opt-in unit from the CAIR
NOX Annual Trading Program in accordance with Sec. 96.186
or the unit becomes a CAIR NOX unit under Sec. 96.104, 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. 96.184 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
[[Page 25359]]
opt-in permit under Sec. 96.183 is submitted in accordance with the
following:
(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. 96.183. 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. 96.184(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. 96.186.
(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. 96.184(g), during which period monitoring system
availability must not be less than 90 percent under subpart HH of this
part and the unit must be in full compliance with any applicable State
or Federal emissions or emissions-related requirements.
(2) To the extent the NOX emissions rate and the heat
input of the unit are monitored and reported in accordance with subpart
HH of this part for one or more control periods, in addition to the
control period under paragraph (b)(1)(ii) of this section, during which
control periods monitoring system availability is not less than 90
percent under subpart HH of this part and the unit is in full
compliance with any applicable State or Federal emissions or emissions-
related requirements and which control periods begin not more than 3
years before the unit enters the CAIR NOX Annual Trading
Program under Sec. 96.184(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
period under paragraph (b)(1)(ii) of this section and for the control
periods under paragraph (b)(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 period under paragraph
(b)(1)(ii) of this section and the control periods under paragraph
(b)(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 period 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. 96.180 and meets the elements certified in Sec. 96.183(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. 96.180 or meets the elements certified in Sec. 96.183(a)(2),
the permitting authority will issue a denial of a CAIR NOX
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. 96.188(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 opt-in unit or a CAIR
NOX unit.
Sec. 96.185 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. 96.122;
(2) The certification in Sec. 96.183(a)(2);
(3) The unit's baseline heat input under Sec. 96.184(c);
(4) The unit's baseline NOX emission rate under Sec.
96.184(d);
(5) A statement whether the unit is to be allocated CAIR
NOX allowances under Sec. 96.188(c) (subject to the
[[Page 25360]]
conditions in Sec. Sec. 96.184(h) and 96.186(g));
(6) A statement that the unit may withdraw from the CAIR
NOX Annual Trading Program only in accordance with Sec.
96.186; 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. 96.187.
(b) Each CAIR opt-in permit is deemed to incorporate automatically
the definitions of terms under Sec. 96.102 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.
Sec. 96.186 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 opt-in unit
from the CAIR NOX Annual Trading Program, the CAIR
designated representative of the CAIR NOX opt-in unit shall
submit to the permitting authority a request to withdraw effective as
of midnight of December 31 of a specified calendar year, which date
must be at least 4 years after December 31 of the year of entry into
the CAIR NOX Annual Trading Program under Sec. 96.184(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. 96.106(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 number 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. 96.188 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.
96.183 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. 96.184.
(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. 96.188(c).
Sec. 96.187 Change in regulatory status.
(a) Notification. If a CAIR NOX opt-in unit becomes a
CAIR NOX unit under Sec. 96.104, 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. 96.104, 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. 96.123 as of the date on
which the CAIR NOX opt-in unit becomes a CAIR NOX
unit under Sec. 96.104.
(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. 96.104, CAIR
NOX allowances equal in number 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. 96.188 for any control period
after the date on which the CAIR NOX opt-in unit becomes a
CAIR NOX unit under Sec. 96.104; and
(B) If the date on which the CAIR NOX opt-in unit
becomes a CAIR NOX unit under Sec. 96.104 is not December
31, the CAIR NOX allowances allocated to the CAIR
NOX opt-in unit under Sec. 96.188 for the control period
that includes the date on which the CAIR NOX opt-in unit
becomes a CAIR NOX unit under
[[Continued on page 25361]]