Title 40—Protection of Environment--Volume 1
PART 97—FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2 TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2 TRADING PROGRAM
§ 97.1   Purpose.
This part establishes general provisions and the applicability, permitting, allowance, excess emissions, monitoring, and opt-in provisions for the federal NO X Budget Trading Program, under section 126 of the CAA and § 52.34 of this chapter, as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.
§ 97.2   Definitions.
The terms used in this part shall have the meanings set forth in this section as follows:
Account number means the identification number given by the Administrator to each NO X Allowance Tracking System account.
Acid Rain emissions limitation means, as defined in § 72.2 of this chapter, a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program under title IV of the Clean Air Act.
Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's duly authorized representative.
Allocate or allocation means, with regard to NO X allowances, the determination by the Administrator of the number of NO X allowances to be initially credited to a NO X Budget unit or an allocation set-aside.
Automated data acquisition and handling system or DAHS means that component of the CEMS, or other emissions monitoring system approved for use under subpart H of this part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by subpart H of this part.
Boiler means an enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.
Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.
Combined cycle system means a system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.
Combustion turbine means an enclosed fossil or other fuel-fired device that is comprised of a compressor, a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.
Commence commercial operation means, with regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation. Except as provided in § 97.4(b), § 97.5, or subpart I of this part, for a unit that is a NO X Budget unit under § 97.4(a) on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in § 97.4(b), § 97.5, or subpart I of this part, for a unit that is not a NO X Budget unit under § 97.4(a) on the date the unit commences commercial operation, the date the unit becomes a NO X Budget unit under § 97.4(a) shall be the unit's date of commencement of commercial operation.
Commence operation means to have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. Except as provided in § 97.4(b), § 97.5, or subpart I of this part for a unit that is a NO X Budget unit under § 97.4(a) on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. Except as provided in § 97.4(b), § 97.5, or subpart I of this part, for a unit that is not a NO X Budget unit under § 97.4(a) on the date of commencement of operation, the date the unit becomes a NO X Budget unit under § 97.4(a) shall be the unit's date of commencement of operation.
Common stack means a single flue through which emissions from two or more units are exhausted.
Compliance account means a NO X Allowance Tracking System account, established by the Administrator for a NO X Budget unit under subpart F of this part, in which the NO X allowance allocations for the unit are initially recorded and in which are held NO X allowances available for use by the unit for a control period for the purpose of meeting the unit's NO X Budget emissions limitation.
Continuous emission monitoring system or CEMS means the equipment required under subpart H of this part to sample, analyze, measure, and provide, by means of readings taken at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides (NO X ) emissions, stack gas volumetric flow rate or stack gas moisture content (as applicable), in a manner consistent with part 75 of this chapter. The following are the principal types of continuous emission monitoring systems required under subpart H of this part:
(1) A flow monitoring system, consisting of a stack flow rate monitor and an automated DAHS. A flow monitoring system provides a permanent, continuous record of stack gas volumetric flow rate, in units of standard cubic feet per hour (scfh);
(2) A nitrogen oxides concentration monitoring system, consisting of a NO X pollutant concentration monitor and an automated DAHS. A NO X concentration monitoring system provides a permanent, continuous record of NO X emissions in units of parts per million (ppm);
(3) A nitrogen oxides emission rate (or NO X -diluent) monitoring system, consisting of a NO X pollutant concentration monitor, a diluent gas (CO 2 or O 2 ) monitor, and an automated DAHS. A NO X concentration monitoring system provides a permanent, continuous record of: NO X concentration in units of parts per million (ppm), diluent gas concentration in units of percent O 2 or CO 2 (percent O 2 or CO 2 ), and NO X emission rate in units of pounds per million British thermal units (lb/mmBtu); and
(4) A moisture monitoring system, as defined in § 75.11(b)(2) of this chapter. A moisture monitoring system provides a permanent, continuous record of the stack gas moisture content, in units of percent H 2 O (percent H 2 O).
Control period means the period beginning May 1 of a year and ending on September 30 of the same year, inclusive.
Electricity for sale under firm contract to the grid means electricity for sale where the capacity involved is intended to be available at all times during the period covered by a guaranteed commitment to deliver, even under adverse conditions.
Emissions means air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the NO X authorized account representative and as determined by the Administrator in accordance with subpart H of this part.
Energy Information Administration means the Energy Information Administration of the United States Department of Energy.
Excess emissions means any tonnage of nitrogen oxides emitted by a NO X Budget unit during a control period that exceeds the NO X Budget emissions limitation for the unit.
Fossil fuel means natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.
Fossil fuel fired means, with regard to a unit:
(1) For units that commenced operation before January 1, 1996, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1995, or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995;
(2) For units that commenced operation on or after January 1, 1996 and before January 1, 1997, the combustion of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during 1996; or
(3) For units that commence operation on or after January 1, 1997:
(i) The combination of fossil fuel, alone or in combustion with any other fuel, where fossil fuel actually combusted comprises more than 50 percent of the annual heat input on a Btu basis during any year; or
(ii) The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50 percent of the annual heat input on a Btu basis during any year, provided that the unit shall be “fossil fuel-fired” as of the date, during such year, on which the unit begins combusting fossil fuel.
General account means a NO X Allowance Tracking System account, established under subpart F of this part, that is not a compliance account or an overdraft account.
Generator means a device that produces electricity.
Heat input means, with regard to a specified period to time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the Administrator by the NO X authorized account representative and as determined by the Administrator in accordance with subpart H of this part. Heat input does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.
Heat input rate means the amount of heat input (in mmBtu) divided by unit operating time (in hr) or, with regard to a specific fuel, the amount of heat input attributed to the fuel (in mmBtu) divided by the unit operating time (in hr) during which the unit combusts the fuel.
Life-of-the-unit, firm power contractual arrangement means a unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy from any specified unit and pays its proportional amount of such unit's total costs, pursuant to a contract:
(1) For the life of the unit;
(2) For a cumulative term of no less than 30 years, including contracts that permit an election for early termination; or
(3) For a period equal to or greater than 25 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.
Maximum design heat input means the ability of a unit to combust a stated maximum amount of fuel per hour (in mmBtu/hr) on a steady state basis, as determined by the physical design and physical characteristics of the unit.
Maximum potential hourly heat input means an hourly heat input (in mmBtu/hr) used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use appendix D of part 75 of this chapter to report heat input, this value should be calculated, in accordance with part 75 of this chapter, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with part 75 of this chapter, using the maximum potential flowrate and either the maximum carbon dioxide concentration (in percent CO 2 ) or the minimum oxygen concentration (in percent O2).
Maximum potential NO X emission rate means the emission rate of nitrogen oxides (in lb/mmBtu) calculated in accordance with section 3 of appendix F of part 75 of this chapter, using the maximum potential concentration of NO X under section 2 of appendix A of part 75 of this chapter, and either the maximum oxygen concentration (in percent O2) or the minimum carbon dioxide concentration (in percent CO 2 ), under all operating conditions of the unit except for unit start up, shutdown, and upsets.
Maximum rated hourly heat input means a unit specific maximum hourly heat input (in mmBtu/hr) which is the higher of the manufacturer's maximum rated hourly heat input or the highest observed hourly heat input.
Monitoring system means any monitoring system that meets the requirements of subpart H of this part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.
Most stringent State or Federal NO X emissions limitation means the lowest NO X emissions limitation (in lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.
Nameplate capacity means the maximum electrical generating output (in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the United States Department of Energy standards.
Non-title V permit means a federally enforceable permit administered by the permitting authority pursuant to the Clean Air Act and regulatory authority under the Clean Air Act, other than title V of the Clean Air Act and part 70 or 71 of this chapter.
NO X allowance means a limited authorization by the Administrator under the NO X Budget Trading Program to emit up to one ton of nitrogen oxides during the control period of the specified year or of any year thereafter, except as provided under § 97.54(f). No provision of the NO X Budget Trading Program, the NO X Budget permit application, the NO X Budget permit, or an exemption under § 97.4(b) or § 97.5 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization, which does not constitute a property right. For purposes of all sections of this part except § 97.40, § 97.41, § 97.42, § 97.43, or § 97.88, “NO X allowance” also includes an authorization to emit up to one ton of nitrogen oxides during the control period of the specified year or of any year thereafter by the permitting authority or the Administrator in accordance with a State NO X Budget Trading Program established, and approved and administered by the Administrator, pursuant to § 51.121 of this chapter.
NO X allowance deduction or deduct NO X allowances means the permanent withdrawal of NO X allowances by the Administrator from a NO X Allowance Tracking System compliance account or overdraft account to account for the number of tons of NO X emissions from a NO X Budget unit for a control period, determined in accordance with subparts H and F of this part, or for any other NO X allowance withdrawal requirement under this part.
NO X Allowance Tracking System means the system by which the Administrator records allocations, deductions, and transfers of NO X allowances under the NO X Budget Trading Program.
NO X Allowance Tracking System account means an account in the NO X Allowance Tracking System established by the Administrator for purposes of recording the allocation, holding, transferring, or deducting of NO X allowances.
NO X allowance transfer deadline means midnight of November 30 or, if November 30 is not a business day, midnight of the first business day thereafter and is the deadline by which NO X allowances must be submitted for recordation in a NO X Budget unit's compliance account, or the overdraft account of the source where the unit is located, in order to meet the unit's NO X Budget emissions limitation for the control period immediately preceding such deadline.
NO X allowances held or hold NO X allowances means the NO X allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with subparts F and G of this part, in a NO X Allowance Tracking System account.
NO X authorized account representative means, for a NO X Budget source or NO X Budget unit at the source, the natural person who is authorized by the owners and operators of the source and all NO X Budget units at the source, in accordance with subpart B of this part, to represent and legally bind each owner and operator in matters pertaining to the NO X Budget Trading Program or, for a general account, the natural person who is authorized, in accordance with subpart F of this part, to transfer or otherwise dispose of NO X allowances held in the general account.
NO X Budget emissions limitation means, for a NO X Budget unit, the tonnage equivalent of the NO X allowances available for compliance deduction for the unit under § 97.54(a), (b), (e), and (f) in a control period adjusted by deductions of such NO X allowances to account for actual heat input under § 97.42(e) for the control period or to account for excess emissions for a prior control period under § 97.54(d) or to account for withdrawal from the NO X Budget Trading Program, or for a change in regulatory status, of a NO X Budget opt-in unit under § 97.86 or § 97.87.
NO X Budget opt-in permit means a NO X Budget permit covering a NO X Budget opt-in unit.
NO X Budget opt-in unit means a unit that has been elected to become a NO X Budget unit under the NO X Budget Trading Program and whose NO X Budget opt-in permit has been issued and is in effect under subpart I of this part.
NO X Budget permit means the legally binding and federally enforceable written document, or portion of such document, issued by the permitting authority under this part, including any permit revisions, specifying the NO X Budget Trading Program requirements applicable to a NO X Budget source, to each NO X Budget unit at the NO X Budget source, and to the owners and operators and the NO X authorized account representative of the NO X Budget source and each NO X Budget unit.
NO X Budget source means a source that includes one or more NO X Budget units.
NO X Budget Trading Program means a multistate nitrogen oxides air pollution control and emission reduction program established by the Administrator in accordance with this part and pursuant to § 52.34 of this chapter, as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.
NO X Budget unit means a unit that is subject to the NO X Budget emissions limitation under § 97.4(a) or § 97.80.
Operating means, with regard to a unit under §§ 97.22(d)(2) and 97.80, having documented heat input for more than 876 hours in the 6 months immediately preceding the submission of an application for an initial NO X Budget permit under § 97.83(a). The unit's documented heat input will be determined in accordance with part 75 of this chapter if the unit was otherwise subject to the requirements of part 75 of this chapter during that 6-month period or will be based on the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of part 75 of this chapter during that 6-month period.
Operator means any person who operates, controls, or supervises a NO X Budget unit, a NO X Budget source, or a unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted and not denied or withdrawn and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.
Opt-in means to be elected to become a NO X Budget unit under the NO X Budget Trading Program through a final, effective NO X Budget opt-in permit under subpart I of this part.
Overdraft account means the NO X Allowance Tracking System account, established by the Administrator under subpart F of this part, for each NO X Budget source where there are two or more NO X Budget units.
Owner means any of the following persons:
(1) Any holder of any portion of the legal or equitable title in a NO X Budget unit or in a unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted and not denied or withdrawn; or
(2) Any holder of a leasehold interest in a NO X Budget unit or in a unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted and not denied or withdrawn; or
(3) Any purchaser of power from a NO X Budget unit or from a unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted and not denied or withdrawn under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, owner shall not include a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the NO X Budget unit or the unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted and not denied or withdrawn; or
(4) With respect to any general account, any person who has an ownership interest with respect to the NO X allowances held in the general account and who is subject to the binding agreement for the NO X authorized account representative to represent that person's ownership interest with respect to the NO X allowances.
Percent monitor data availability means, for purposes of § 97.43 (a)(1) and § 97.84(b), total unit operating hours for which quality-assured data were recorded under subpart H of this part in a control period, divided by the total number of unit operating hours in the control period, and multiplied by 100 percent.
Permitting authority means the State air pollution control agency, local agency, other State agency, or other agency authorized by the Administrator to issue or revise permits to meet the requirements of the NO X Budget Trading Program in accordance with subpart C of this part.
Potential electrical output capacity means 33 percent of a unit's maximum design heat input.
Receive or receipt of means, when referring to the permitting authority or the Administrator, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the permitting authority or the Administrator in the regular course of business.
Recordation, record, or recorded means, with regard to NO X allowances, the movement of NO X allowances by the Administrator from one NO X Allowance Tracking System account to another, for purposes of allocation, transfer, or deduction.
Reference method means any direct test method of sampling and analyzing for an air pollutant as specified in appendix A of part 60 of this chapter.
Serial number means, when referring to NO X allowances, the unique identification number assigned to each NO X allowance by the Administrator, under § 97.53(c).
Source means any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any regulated air pollutant under the Clean Air Act. For purposes of section 502(c) of the Clean Air Act, a “source,” including a “source” with multiple units, shall be considered a single “facility.”
State means one of the 48 contiguous States or a portion thereof or the District of Columbia that is specified in § 52.34 of this chapter and in which are located units for which the Administrator makes an effective finding under § 52.34 of this chapter.
Submit or serve means to send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:
(1) In person;
(2) By United States Postal Service; or
(3) By other means of dispatch or transmission and delivery. Compliance with any “submission,” “service,” or “mailing” deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.
Title V operating permit means a permit issued under title V of the Clean Air Act and part 70 or part 71 of this chapter.
Title V operating permit regulations means the regulations that the Administrator has approved or issued as meeting the requirements of title V of the Clean Air Act and part 70 or 71 of this chapter.
Ton or tonnage means any “short ton” (i.e., 2,000 pounds). For the purpose of determining compliance with the NO X Budget emissions limitation, total tons for a control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with subpart H of this part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons.
Unit means a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.
Unit operating day means a calendar day in which a unit combusts any fuel.
Unit operating hour or hour of unit operation means any hour (or fraction of an hour) during which a unit combusts any fuel.
§ 97.3   Measurements, abbreviations, and acronyms.
Measurements, abbreviations, and acronyms used in this part are defined as follows:
§ 97.4   Applicability.
(a) The following units in a State shall be a NO X Budget unit, and any source that includes one or more such units shall be a NO X Budget source, subject to the requirements of this part:
(1)(i) For units other than cogeneration units—
(A) For units commencing operation before January 1, 1997, a unit serving during 1995 or 1996 a generator—
( 1 ) With a nameplate capacity greater than 25 MWe and
( 2 ) Producing electricity for sale under a firm contract to the electric grid.
(B) For units commencing operation in 1997 or 1998, a unit serving during 1997 or 1998 a generator—
( 1 ) With a nameplate capacity greater than 25 MWe and
( 2 ) Producing electricity for sale under a firm contract to the electric grid.
(C) For units commencing operation on or after January 1, 1999, a unit serving at any time a generator—
( 1 ) With a nameplate capacity greater than 25 MWe and
( 2 ) Producing electricity for sale.
(ii) For cogeneration units—
(A) For units commencing operation before January 1, 1997, a unit serving during 1995 or 1996 a generator with a nameplate capacity greater than 25 MWe and failing to qualify as an unaffected unit under § 72.6(b)(4) of this chapter for 1995 or 1996 under the Acid Rain Program.
(B) For units commencing operation in 1997 or 1998, a unit serving during 1997 or 1998 a generator with a nameplate capacity grater than 25 MWe and failing to qualify as an unaffected unit under § 72.6(b)(4) of this chapter for 1997 or 1998 under the Acid Rain Program.
(C) For units commencing operation on or after January 1, 1999, a unit serving at any time a generator with a nameplate capacity greater than 25 MWe and failing to qualify as an unaffected unit under § 72.6(b)(4) of this chapter under the Acid Rain Program for any year.
(2)(i) For units other than cogeneration units—
(A) For units commencing operation before January 1, 1997, a unit—
( 1 ) With a maximum design heat input greater than 250 mmBtu/hr and
( 2 ) Not serving during 1995 or 1996 a generator producing electricity for sale under a firm contract to the electric grid.
(B) For units commencing operation in 1997 or 1998, a unit—
( 1 ) With a maximum design heat input greater than 250 mmBtu/hr and
( 2 ) Not serving during 1997 or 1998 a generator producing electricity for sale under a firm contract to the electric grid.
(C) For units commencing on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr:
( 1 ) At no time serving a generator producing electricity for sale; or
( 2 ) At any time serving a generator with a nameplate capacity of 25 MWe or less producing electricity for sale and with the potential to use no more than 50 percent of the potential electrical output capacity of the unit.
(ii) For cogeneration units—
(A) For units commencing operation before January 1, 1997, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under § 72.6(b)(4) of this chapter under the Acid Rain Program for 1995 and 1996.
(B) For units commencing operation in 1997 or 1998, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under § 72.6(b)(4) under the Acid Rain Program for 1997 and 1998.
(C) For units commencing on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr and qualifying as an unaffected unit under § 72.6(b)(4) of this chapter under the Acid Rain Program for each year.
(b)(1) Notwithstanding paragraph (a) of this section, a unit under paragraph (a)(1) or (a)(2) of this section that has a federally enforceable permit that restricts the unit to combusting only natural gas or fuel oil (as defined in § 75.2 of this chapter) during a control period includes a NO X emission limitation restricting NO X emissions during a control period to 25 tons or less, and includes the special provisions in paragraph (b)(4) of this section shall be exempt from the requirements of the NO X Budget Trading Program, except for the provisions of this paragraph (b), § 97.2, § 97.3, § 97.4(a), § 97.7, and subparts E, F, and G of this part. The NO X emission limitation under this paragraph (b)(1) shall restrict NO X emissions during the control period by limiting unit operating hours. The restriction on unit operating hours shall be calculated by dividing 25 tons by the unit's maximum potential hourly NO X mass emissions, which shall equal the unit's maximum rated hourly heat input multiplied by the highest default NO X emission rate otherwise applicable to the unit under § 75.19 of this chapter.
(2) The exemption under paragraph (b)(1) of this section shall become effective as follows:
(i) The exemption shall become effective on the date on which the NO X emission limitation and the special provisions in the permit under paragraph (b)(1) of this section become final; or
(ii) If the NO X emission limitation and the special provisions in the permit under paragraph (b)(1) of this section become final during a control period and after the first date on which the unit operates during such control period, then the exemption shall become effective on May 1 of such control period, provided that such NO X emission limitation and the special provisions apply to the unit as of such first date of operation. If such NO X emission limitation and special provisions do not apply to the unit as of such first date of operation, then the exemption under paragraph (b)(1) of this section shall become effective on October 1 of the year during which such NO X emission limitation and the special provisions become final.
(3) The permitting authority that issues a federally enforceable permit under paragraph (b)(1) of this section for a unit under paragraph (a)(1) or (a)(2) of this section will provide the Administrator written notice of the issuance of such permit and, upon request, a copy of the permit.
(4) Special provisions. (i) A unit exempt under paragraph (b)(1) of this section shall comply with the restriction on fuel use and unit operating hours described in paragraph (b)(1) of this section during the control period in each year.
(ii) The Administrator will allocate NO X allowances to the unit under §§ 97.41(a) through (c) and 97.42(a) through (c). For each control period for which the unit is allocated NO X allowances under §§ 97.41(a) through (c) and 97.42(a) through (c):
(A) The owners and operators of the unit must specify a general account, in which the Administrator will record the NO X allowances; and
(B) After the Administrator records a NO X allowance allocations under §§ 97.41(a) through (c) and 97.42(a) through (c), the Administrator will deduct, from the general account under paragraph (b)(4)(ii)(A) of this section, NO X allowances that are allocated for the same or a prior control period as the NO X allowances allocated to the unit under §§ 97.41(a) through (c) and 97.42(a) through (c) and that equal the NO X emission limitation (in tons of NO X ) on which the unit's exemption under paragraph (b)(1) of this section is based. The NO X authorized account representative shall ensure that such general account contains the NO X allowances necessary for completion of such deduction.
(iii) A unit exempt under this paragraph (b) shall report hours of unit operation during the control period in each year to the permitting authority by November 1 of that year.
(iv) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (b)(1) of this section shall retain, at the source that includes the unit, records demonstrating that the conditions of the federally enforceable permit under paragraph (b)(1) of this section were met, including the restriction on fuel use or unit operating hours. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit met the restriction on fuel use or unit operating hours.
(v) The owners and operators and, to the extent applicable, the NO X authorized account representative of a unit exempt under paragraph (b)(1) of this section shall comply with the requirements of the NO X Budget Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.
(vi) On the earlier of the following dates, a unit exempt under paragraph (b)(1) of this section shall lose its exemption:
(A) The date on which the restriction on fuel use or unit operating hours described in paragraph (b)(1) of this section is removed from the unit's federally enforceable permit or otherwise becomes no longer applicable to any control period starting in 2004; or
(B) The first date on which the unit fails to comply, or with regard to which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on fuel use or unit operating hours described in paragraph (b)(1) of this section during any control period starting in 2004.
(vii) A unit that loses its exemption in accordance with paragraph (b)(4)(vi) of this section shall be subject to the requirements of this part. For the purpose of applying permitting requirements under subpart C of this part, allocating allowances under subpart E of this part, and applying monitoring requirements under subpart H of this part, the unit shall be treated as commencing operation and, if the unit is covered by paragraph (a)(1) of this section, commencing commercial operation on the date the unit loses its exemption.
(viii) A unit that is exempt under paragraph (b)(1) of this section is not eligible to be a NO X Budget opt-in unit under subpart I of this part.
§ 97.5   Retired unit exemption.
(a) This section applies to any NO X Budget unit, other than a NO X Budget opt-in unit, that is permanently retired.
(b)(1) Any NO X Budget unit, other than a NO X Budget opt-in unit, that is permanently retired shall be exempt from the NO X Budget Trading Program, except for the provisions of this section, § 97.2, § 97.3, § 97.4, § 97.7, and subparts E, F, and G of this part.
(2) The exemption under paragraph (b)(1) of this section shall become effective the day on which the unit is permanently retired. Within 30 days of permanent retirement, the NO X authorized account representative (authorized in accordance with subpart B of this part) shall submit a statement to the permitting authority otherwise responsible for administering any NO X Budget permit for the unit. The NO X authorized account representative shall submit a copy of the statement to the Administrator. The statement shall state, in a format prescribed by the permitting authority, that the unit is permanently retired and will comply with the requirements of paragraph (c) of this section.
(3) After receipt of the notice under paragraph (b)(2) of this section, the permitting authority will amend any permit covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraphs (b)(1) and (c) of this section.
(c) Special provisions. (1) A unit exempt under this section shall not emit any nitrogen oxides, starting on the date that the exemption takes effect.
(2) The Administrator will allocate NO X allowances under subpart E of this part to a unit exempt under this section. For each control period for which the unit is allocated one or more NO X allowances, the owners and operators of the unit shall specify a general account, in which the Administrator will record such NO X allowances.
(3) For a period of 5 years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the permitting authority or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.
(4) The owners and operators and, to the extent applicable, the NO X authorized account representative of a unit exempt under this section shall comply with the requirements of the NO X Budget Trading Program concerning all periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.
(5)(i) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the NO X authorized account representative of the source submits a complete NO X Budget permit application under § 97.22 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the unit resumes operation.
(ii) A unit exempt under this section and located at a source that is required, or but for this exemption would be required, to have a non-title V permit shall not resume operation unless the NO X authorized account representative of the source submits a complete NO X Budget permit application under § 97.22 for the unit not less than 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the unit is to first resume operation.
(6) On the earlier of the following dates, a unit exempt under paragraph (b) of this section shall lose its exemption:
(i) The date on which the NO X authorized account representative submits a NO X Budget permit application under paragraph (c)(5) of this section;
(ii) The date on which the NO X authorized account representative is required under paragraph (c)(5) of this section to submit a NO X Budget permit application; or
(iii) The date on which the unit resumes operation, if the unit is not required to submit a NO X permit application.
(7) For the purpose of applying monitoring requirements under subpart H of this part, a unit that loses its exemption under this section shall be treated as a unit that commences operation or commercial operation on the first date on which the unit resumes operation.
(8) A unit that is exempt under this section is not eligible to be a NO X Budget opt-in unit under subpart I of this part.
§ 97.6   Standard requirements.
(a) Permit requirements. (1) The NO X authorized account representative of each NO X Budget source required to have a federally enforceable permit and each NO X Budget unit required to have a federally enforceable permit at the source shall:
(i) Submit to the permitting authority a complete NO X Budget permit application under § 97.22 in accordance with the deadlines specified in § 97.21(b) and (c);
(ii) Submit in a timely manner any supplemental information that the permitting authority determines is necessary in order to review a NO X Budget permit application and issue or deny a NO X Budget permit.
(2) The owners and operators of each NO X Budget source required to have a federally enforceable permit and each NO X Budget unit required to have a federally enforceable permit at the source shall have a NO X Budget permit issued by the permitting authority and operate the unit in compliance with such NO X Budget permit.
(3) The owners and operators of a NO X Budget source that is not otherwise required to have a federally enforceable permit are not required to submit a NO X Budget permit application, and to have a NO X Budget permit, under subpart C of this part for such NO X Budget source.
(b) Monitoring requirements. (1) The owners and operators and, to the extent applicable, the NO X authorized account representative of each NO X Budget source and each NO X Budget unit at the source shall comply with the monitoring requirements of subpart H of this part.
(2) The emissions measurements recorded and reported in accordance with subpart H of this part shall be used to determine compliance by the unit with the NO X Budget emissions limitation under paragraph (c) of this section.
(c) Nitrogen oxides requirements. (1) The owners and operators of each NO X Budget source and each NO X Budget unit at the source shall hold NO X allowances available for compliance deductions under § 97.54(a), (b), (e), or (f) as of the NO X allowance transfer deadline, in the unit's compliance account and the source's overdraft account in an amount not less than the total NO X emissions for the control period from the unit, as determined in accordance with subpart H of this part, plus any amount necessary to account for actual heat input under § 97.42(e) for the control period or to account for excess emissions for a prior control period under § 97.54(d) or to account for withdrawal from the NO X Budget Trading Program, or a change in regulatory status, of a NO X Budget opt-in unit under § 97.86 or § 97.87.
(2) Each ton of nitrogen oxides emitted in excess of the NO X Budget emissions limitation shall constitute a separate violation of this part, the Clean Air Act, and applicable State law.
(3) A NO X Budget unit shall be subject to the requirements under paragraph (c)(1) of this section starting on the later of May 31, 2004 or the date on which the unit commences operation.
(4) NO X allowances shall be held in, deducted from, or transferred among NO X Allowance Tracking System accounts in accordance with subparts E, F, G, and I of this part.
(5) A NO X allowance shall not be deducted, in order to comply with the requirements under paragraph (c)(1) of this section, for a control period in a year prior to the year for which the NO X allowance was allocated.
(6) A NO X allowance allocated by the Administrator under the NO X Budget Trading Program is a limited authorization to emit one ton of nitrogen oxides in accordance with the NO X Budget Trading Program. No provision of the NO X Budget Trading Program, the NO X Budget permit application, the NO X Budget permit, or an exemption under § 97.4(b) or § 97.5 and no provision of law shall be construed to limit the authority of the United States to terminate or limit such authorization.
(7) A NO X allowance allocated by the Administrator under the NO X Budget Trading Program does not constitute a property right.
(8) Upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of a NO X allowance to or from a NO X Budget unit's compliance account or the overdraft account of the source where the unit is located is incorporated automatically in any NO X Budget permit of the NO X Budget unit.
(d) Excess emissions requirements. (1) The owners and operators of a NO X Budget unit that has excess emissions in any control period shall:
(i) Surrender the NO X allowances required for deduction under § 97.54(d)(1); and
(ii) Pay any fine, penalty, or assessment or comply with any other remedy imposed under § 97.54(d)(3).
(e) Recordkeeping and reporting requirements. (1) Unless otherwise provided, the owners and operators of the NO X Budget source and each NO X Budget unit at the source shall keep on site at the source each of the following documents for a period of 5 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 5 years, in writing by the permitting authority or the Administrator.
(i) The account certificate of representation under § 97.13 for the NO X authorized account representative for the source and each NO X Budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation; provided that the certificate and documents shall be retained on site at the source beyond such 5-year period until such documents are superseded because of the submission of a new account certificate of representation under § 97.13 changing the NO X authorized account representative.
(ii) All emissions monitoring information, in accordance with subpart H of this part; provided that to the extent that subpart H of this part provides for a 3-year period for recordkeeping, the 3-year period shall apply.
(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the NO X Budget Trading Program.
(iv) Copies of all documents used to complete a NO X Budget permit application and any other submission under the NO X Budget Trading Program or to demonstrate compliance with the requirements of the NO X Budget Trading Program.
(2) The NO X authorized account representative of a NO X Budget source and each NO X Budget unit at the source shall submit the reports and compliance certifications required under the NO X Budget Trading Program, including those under subpart D, H, or I of this part.
(f) Liability. (1) Any person who knowingly violates any requirement or prohibition of the NO X Budget Trading Program, a NO X Budget permit, or an exemption under § 97.4(b) or § 97.5 shall be subject to enforcement pursuant to applicable State or Federal law.
(2) Any person who knowingly makes a false material statement in any record, submission, or report under the NO X Budget Trading Program shall be subject to criminal enforcement pursuant to the applicable State or Federal law.
(3) No permit revision shall excuse any violation of the requirements of the NO X Budget Trading Program that occurs prior to the date that the revision takes effect.
(4) Each NO X Budget source and each NO X Budget unit shall meet the requirements of the NO X Budget Trading Program.
(5) Any provision of the NO X Budget Trading Program that applies to a NO X Budget source or the NO X authorized account representative of a NO X Budget source shall also apply to the owners and operators of such source and of the NO X Budget units at the source.
(6) Any provision of the NO X Budget Trading Program that applies to a NO X Budget unit or the NO X authorized account representative of a NO X budget unit shall also apply to the owners and operators of such unit. Except with regard to the requirements applicable to units with a common stack under subpart H of this part, the owners and operators and the NO X authorized account representative of one NO X Budget unit shall not be liable for any violation by any other NO X Budget unit of which they are not owners or operators or the NO X authorized account representative and that is located at a source of which they are not owners or operators or the NO X authorized account representative.
(g) Effect on other authorities. No provision of the NO X Budget Trading Program, a NO X Budget permit application, a NO X Budget permit, or an exemption under § 97.4(b) or § 97.5 shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the NO X authorized account representative of a NO X Budget source or NO X Budget unit from compliance with any other provision of the applicable, approved State implementation plan, a federally enforceable permit, or the Clean Air Act.
§ 97.7   Computation of time.
(a) Unless otherwise stated, any time period scheduled, under the NO X Budget Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.
(b) Unless otherwise stated, any time period scheduled, under the NO X Budget Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.
(c) Unless otherwise stated, if the final day of any time period, under the NO X Budget Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.
§ 97.10   Authorization and responsibilities of NOXauthorized account representative.
(a) Except as provided under § 97.11, each NO X Budget source, including all NO X Budget units at the source, shall have one and only one NO X authorized account representative, with regard to all matters under the NO X Budget Trading Program concerning the source or any NO X Budget unit at the source.
(b) The NO X authorized account representative of the NO X Budget source shall be selected by an agreement binding on the owners and operators of the source and all NO X Budget units at the source.
(c) Upon receipt by the Administrator of a complete account certificate of representation under § 97.13, the NO X authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the NO X Budget source represented and each NO X Budget unit at the source in all matters pertaining to the NO X Budget Trading Program, not withstanding any agreement between the NO X authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the NO X authorized account representative by the permitting authority, the Administrator, or a court regarding the source or unit.
(d) No NO X Budget permit shall be issued, and no NO X Allowance Tracking System account shall be established for a NO X Budget unit at a source, until the Administrator has received a complete account certificate of representation under § 97.13 for a NO X authorized account representative of the source and the NO X Budget units at the source.
(e) (1) Each submission under the NO X Budget Trading Program shall be submitted, signed, and certified by the NO X authorized account representative for each NO X Budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the NO X authorized account representative: “I am authorized to make this submission on behalf of the owners and operators of the NO X Budget sources or NO X Budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”
(2) The permitting authority and the Administrator will accept or act on a submission made on behalf of owner or operators of a NO X Budget source or a NO X Budget unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.
§ 97.11   Alternate NOXauthorized account representative.
(a) An account certificate of representation may designate one and only one alternate NO X authorized account representative who may act on behalf of the NO X authorized account representative. The agreement by which the alternate NO X authorized account representative is selected shall include a procedure for authorizing the alternate NO X authorized account representative to act in lieu of the NO X authorized account representative.
(b) Upon receipt by the Administrator of a complete account certificate of representation under § 97.13, any representation, action, inaction, or submission by the alternate NO X authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NO X authorized account representative.
(c) Except in this section and §§ 97.10(a), 97.12, 97.13, and 97.51, whenever the term “NO X authorized account representative” is used in this part, the term shall be construed to include the alternate NO X authorized account representative.
§ 97.12   Changing NOXauthorized account representative and alternate NOXauthorized account representative; changes in owners and operators.
(a) Changing NO X authorized account representative. The NO X authorized account representative may be changed at any time upon receipt by the Administrator of a superseding complete account certificate of representation under § 97.13. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous NO X authorized account representative prior to the time and date when the Administrator receives the superseding account certificate of representation shall be binding on the new NO X authorized account representative and the owners and operators of the NO X Budget source and the NO X Budget units at the source.
(b) Changing alternate NO X authorized account representative. The alternate NO X authorized account representative may be changed at any time upon receipt by the Administrator of a superseding complete account certificate of representation under § 97.13. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate NO X authorized account representative prior to the time and date when the Administrator receives the superseding account certificate of representation shall be binding on the new alternate NO X authorized account representative and the owners and operators of the NO X Budget source and the NO X Budget units at the source.
(c) Changes in owners and operators. (1) In the event a new owner or operator of a NO X Budget source or a NO X Budget unit is not included in the list of owners and operators submitted in the account certificate of representation under § 97.13, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the NO X authorized account representative and any alternate NO X authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the permitting authority or the Administrator, as if the new owner or operator were included in such list.
(2) Within 30 days following any change in the owners and operators of a NO X Budget source or a NO X Budget unit, including the addition of a new owner or operator, the NO X authorized account representative or alternate NO X authorized account representative shall submit a revision to the account certificate of representation under § 97.13 amending the list of owners and operators to include the change.
§ 97.13   Account certificate of representation.
(a) A complete account certificate of representation for a NO X authorized account representative or an alternate NO X authorized account representative shall include the following elements in a format prescribed by the Administrator:
(1) Identification of the NO X Budget source and each NO X Budget unit at the source for which the account certificate of representation is submitted.
(2) The name, address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NO X authorized account representative and any alternate NO X authorized account representative.
(3) A list of the owners and operators of the NO X Budget source and of each NO X Budget unit at the source.
(4) The following certification statement by the NO X authorized account representative and any alternate NO X authorized account representative: “I certify that I was selected as the NO X authorized account representative or alternate NO X authorized account representative, as applicable, by an agreement binding on the owners and operators of the NO X Budget source and each NO X Budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NO X Budget Trading Program on behalf of the owners and operators of the NO X Budget source and of each NO X Budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the permitting authority, the Administrator, or a court regarding the source or unit.”
(5) The signature of the NO X authorized account representative and any alternate NO X authorized account representative and the dates signed.
(b) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the account certificate of representation shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
§ 97.14   Objections concerning NOXauthorized account representative.
(a) Once a complete account certificate of representation under § 97.13 has been submitted and received, the permitting authority and the Administrator will rely on the account certificate of representation unless and until a superseding complete account certificate of representation under § 97.13 is received by the Administrator.
(b) Except as provided in § 97.12 (a) or (b), no objection or other communication submitted to the permitting authority or the Administrator concerning the authorization, or any representation, action, inaction, or submission of the NO X authorized account representative shall affect any representation, action, inaction, or submission of the NO X authorized account representative or the finality of any decision or order by the permitting authority or the Administrator under the NO X Budget Trading Program.
(c) Neither the permitting authority nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any NO X authorized account representative, including private legal disputes concerning the proceeds of NO X allowance transfers.
§ 97.20   General NOXBudget Trading Program permit requirements.
(a) For each NO X Budget source required to have a federally enforceable permit, such permit shall include a NO X Budget permit administered by the permitting authority for the federally enforceable permit.
(1) For NO X Budget sources required to have a title V operating permit, the NO X Budget portion of the title V permit shall be administered in accordance with the permitting authority's title V operating permits regulations promulgated under part 70 or 71 of this chapter, except as provided otherwise by this subpart or subpart I of this part.
(2) For NO X Budget sources required to have a non-title V permit, the NO X Budget portion of the non-title V permit shall be administered in accordance with the permitting authority's regulations promulgated to administer non-title V permits, except as provided otherwise by this subpart or subpart I of this part.
(b) Each NO X Budget permit shall contain all applicable NO X Budget Trading Program requirements and shall be a complete and segregable portion of the permit under paragraph (a) of this section.
§ 97.21   Submission of NOXBudget permit applications.
(a) Duty to apply. The NO X authorized account representative of any NO X Budget source required to have a federally enforceable permit shall submit to the permitting authority a complete NO X Budget permit application under § 97.22 by the applicable deadline in paragraph (b) of this section.
(b)(1) For NO X Budget sources required to have a title V operating permit:
(i) For any source, with one or more NO X Budget units under § 97.4(a) that commence operation before January 1, 2001, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 covering such NO X Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.
(ii) For any source, with any NO X Budget unit under § 97.4(a) that commences operation on or after January 1, 2001, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 covering such NO X Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the NO X Budget unit commences operation.
(2) For NO X Budget sources required to have a non-title V permit:
(i) For any source, with one or more NO X Budget units under § 97.4(a) that commence operation before January 1, 2001, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 covering such NO X Budget units to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before May 31, 2004.
(ii) For any source, with any NO X Budget unit under § 97.4(a) that commences operation on or after January 1, 2001, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 covering such NO X Budget unit to the permitting authority at least 18 months (or such lesser time provided by the permitting authority) before the later of May 31, 2004 or the date on which the NO X Budget unit commences operation.
(c) Duty to reapply. (1) For a NO X Budget source required to have a title V operating permit, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 for the NO X Budget source covering the NO X Budget units at the source in accordance with the permitting authority's title V operating permits regulations addressing operating permit renewal.
(2) For a NO X Budget source required to have a non-title V permit, the NO X authorized account representative shall submit a complete NO X Budget permit application under § 97.22 for the NO X Budget source covering the NO X Budget units at the source in accordance with the permitting authority's non-title V permits regulations addressing permit renewal.
§ 97.22   Information requirements for NOXBudget permit applications.
A complete NO X Budget permit application shall include the following elements concerning the NO X Budget source for which the application is submitted, in a format prescribed by the permitting authority:
(a) Identification of the NO X Budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration, if applicable;
(b) Identification of each NO X Budget unit at the NO X Budget source and whether it is a NO X Budget unit under § 97.4(a) or under subpart I of this part;
(c) The standard requirements under § 97.6; and
(d) For each NO X Budget opt-in unit at the NO X Budget source, the following certification statements by the NO X authorized account representative:
(1) “I certify that each unit for which this permit application is submitted under subpart I of this part is not a NO X Budget unit under 40 CFR 97.4(a) and is not covered by an exemption under 40 CFR 97.4(b) or 97.5 that is in effect.”
(2) If the application is for an initial NO X Budget opt-in permit, “I certify that each unit for which this permit application is submitted under subpart I of 40 CFR part 97 is operating, as that term is defined under 40 CFR 97.2.”
§ 97.23   NOXBudget permit contents.
(a) Each NO X Budget permit will contain, in a format prescribed by the permitting authority, all elements required for a complete NO X Budget permit application under § 97.22.
(b) Each NO X Budget permit is deemed to incorporate automatically the definitions of terms under § 97.2 and, upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of a NO X allowance to or from the compliance accounts of the NO X Budget units covered by the permit or the overdraft account of the NO X Budget source covered by the permit.
§ 97.24   NOXBudget permit revisions.
(a) For a NO X Budget source with a title V operating permit, except as provided in § 97.23(b), the permitting authority will revise the NO X Budget permit, as necessary, in accordance with the permitting authority's title V operating permits regulations addressing permit revisions.
(b) For a NO X Budget source with a non-title V permit, except as provided in § 97.23(b), the permitting authority will revise the NO X Budget permit, as necessary, in accordance with the permitting authority's non-title V permits regulations addressing permit revisions.
§ 97.30   Compliance certification report.
(a) Applicability and deadline. For each control period in which one or more NO X Budget units at a source are subject to the NO X Budget emissions limitation, the NO X authorized account representative of the source shall submit to the permitting authority and the Administrator by November 30 of that year, a compliance certification report for each source covering all such units.
(b) Contents of report. The NO X authorized account representative shall include in the compliance certification report under paragraph (a) of this section the following elements, in a format prescribed by the Administrator, concerning each unit at the source and subject to the NO X Budget emissions limitation for the control period covered by the report:
(1) Identification of each NO X Budget unit;
(2) At the NO X authorized account representative's option, the serial numbers of the NO X allowances that are to be deducted from each unit's compliance account under § 97.54 for the control period;
(3) At the NO X authorized account representative's option, for units sharing a common stack and having NO X emissions that are not monitored separately or apportioned in accordance with subpart H of this part, the percentage of allowances that is to be deducted from each unit's compliance account under § 97.54(e); and
(4) The compliance certification under paragraph (c) of this section.
(c) Compliance certification. In the compliance certification report under paragraph (a) of this section, the NO X authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the NO X Budget units at the source in compliance with the NO X Budget Trading Program, whether each NO X Budget unit for which the compliance certification is submitted was operated during the calendar year covered by the report in compliance with the requirements of the NO X Budget Trading Program applicable to the unit, including:
(1) Whether the unit was operated in compliance with the NO X Budget emissions limitation;
(2) Whether the monitoring plan that governs the unit has been maintained to reflect the actual operation and monitoring of the unit and contains all information necessary to attribute NO X emissions to the unit, in accordance with subpart H of this part;
(3) Whether all the NO X emissions from the unit, or a group of units (including the unit) using a common stack, were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including whether conditional data were reported in the quarterly reports in accordance with subpart H of this part. If conditional data were reported, the owner or operator shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;
(4) Whether the facts that form the basis for certification under subpart H of this part of each monitor at the unit or a group of units (including the unit) using a common stack, or for using an excepted monitoring method or alternative monitoring method approved under subpart H of this part, if any, have changed; and
(5) If a change is required to be reported under paragraph (c)(4) of this section, specify the nature of the change, the reason for the change, when the change occurred, and how the unit's compliance status was determined subsequent to the change, including what method was used to determine emissions when a change mandated the need for monitor recertification.
§ 97.31   Administrator's action on compliance certifications.
(a) The Administrator may review and conduct independent audits concerning any compliance certification or any other submission under the NO X Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.
(b) The Administrator may deduct NO X allowances from or transfer NO X allowances to a unit's compliance account or a source's overdraft account based on the information in the compliance certifications or other submissions, as adjusted under paragraph (a) of this section.
§ 97.40   Trading program budget.
In accordance with §§ 97.41 and 97.42, the Administrator will allocate to the NO X Budget units under § 97.4(a) in a State, for each control period specified in § 97.41, a total number of NO X allowances equal to the trading budget for the State, as set forth in appendix C to this subpart, less the sum of the NO X emission limitations (in tons) for each unit exempt under § 97.4(b) that is not allocated any NO X allowances under § 97.42 (b) or (c) for the control period and whose NO X emission limitation (in tons of NO X ) is not included in the amount calculated under § 97.42(d)(5)(ii)(B) for the control period.
§ 97.41   Timing requirements for NOXallowance allocations.
(a) The NO X allowance allocations, determined in accordance with §§ 97.42(a) through (c), for the control periods in 2004 through 2007 are set forth in appendices A and B to this subpart.
(b) By April 1, 2005, the Administrator will determine by order the NO X allowance allocations, in accordance with §§ 97.42 (a) through (c), for the control periods in 2008 through 2012.
(c) By April 1, 2010, by April 1 of 2015, and thereafter by April 1 of the year that is 5 years after the last year for which NO X allowances allocations are determined, the Administrator will determine by order the NO X allowance allocations, in accordance with §§ 97.42(a) through (c), for the control periods in the years that are 3, 4, 5, 6, and 7 years after the applicable deadline under this paragraph (c).
(d) By April 1, 2004 and April 1 of each year thereafter, the Administrator will determine by order the NO X allowance allocations, in accordance with § 97.42(d), for the control period in the year of the applicable deadline under this paragraph (d).
(e) The Administrator will make available to the public each determination of NO X allowance allocations under paragraph (b), (c), or (d) of this section and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with § 97.42. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with § 97.42.
§ 97.42   NOXallowance allocations.
(a)(1) The heat input (in mmBtu) used for calculating NO X allowance allocations for each NO X Budget unit under § 97.4(a) will be:
(i) For a NO X allowance allocation under § 97.41(a):
(A) For a unit under § 97.4(a)(1), the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998; or
(B) For a unit under § 97.4(a)(2), the control period in 1995 or, if the Administrator determines that reasonably reliable data are available for control periods in 1996 through 1998, the average of the two highest amounts of the unit's heat input for the control periods in 1995 through 1998.
(ii) For a NO X allowance allocation under § 97.41(b), the unit's average heat input for the control periods in 2002 through 2004.
(iii) For a NO X allowance allocation under § 97.41(c), the unit's average heat input for the control period in the years that are 4, 5, 6, 7, and 8 years before the first year for which the allocation is being calculated.
(2) The unit's heat input for the control period in each year specified under paragraph (a)(1) of this section will be determined in accordance with part 75 of this chapter. Notwithstanding the first sentence of this paragraph (a)(2):
(i) For a NO X allowance allocation under § 97.41(a), such heat input will be determined using the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of part 75 of this chapter for the control period.
(ii) For a NO X allowance allocation under § 97.41(b) or (c) for a unit exempt under § 97.4(b), such heat input shall be treated as zero if the unit is exempt under § 97.4(b) during the control period.
(b) For each group of control periods specified in § 97.41(a) through (c), the Administrator will allocate to all NO X Budget units in a given State under § 97.4(a)(1) that commenced operation before May 1, 1997 for allocations under § 97.41(a), May 1, 2003 for allocations under § 97.41(b), and May 1 of the year 5 years before the first year for which the allocation under § 97.41(c) is being calculated, a total number of NO X allowances equal to 95 percent of the portion of the State's trading program budget under § 97.40 covering such units. The Administrator will allocate in accordance with the following procedures:
(1) The Administrator will allocate NO X allowances to each NO X Budget unit under § 97.4(a)(1) for each control period in an amount equaling 0.15 lb/mmBtu multiplied by the heat input determined under paragraph (a) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate.
(2) If the initial total number of NO X allowances allocated to all NO X Budget units under § 97.4(a)(1) in the State for a control period under paragraph (b)(1) of this section does not equal 95 percent of the portion of the State's trading program budget under § 97.40 covering such units, the Administrator will adjust the total number of NO X allowances allocated to all such NO X Budget units for the control period under paragraph (b)(1) of this section so that the total number of NO X allowances allocated equals 95 percent of such portion of the State's trading program budget. This adjustment will be made by: multiplying each unit's allocation by 95 percent of such portion of the State's trading program budget; dividing by the total number of NO X allowances allocated under paragraph (b)(1) of this section for the control period; and rounding to the nearest whole number of NO X allowances as appropriate.
(c) For each group of control periods specified in § 97.41(a) through (c), the Administrator will allocate to all NO X Budget units in a given State under § 97.4(a)(2) that commenced operation before May 1, 1997 for allocations under § 97.41(a), May 1, 2003 for allocations under § 97.41(b), and May 1 of the year 5 years before the first year for which the allocation under § 97.41(c) is being calculated, a total number of NO X allowances equal to 95 percent of the portion of the State's trading program budget under § 97.40 covering such units. The Administrator will allocate in accordance with the following procedures:
(1) The Administrator will allocate NO X allowances to each NO X Budget unit under § 97.4(a)(2) for each control period in an amount equaling 0.17 lb/mmBtu multiplied by the heat input determined under paragraph (a) of this section, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate.
(2) If the initial total number of NO X allowances allocated to all NO X Budget units under § 97.4(a)(2) in the State for a control period under paragraph (c)(1) of this section does not equal 95 percent of the portion of the State's trading program budget under § 97.40 covering such units, the Administrator will adjust the total number of NO X allowances allocated to all such NO X Budget units for the control period under paragraph (a)(1) of this section so that the total number of NO X allowances allocated equals 95 percent of the portion of the State's trading program budget under § 97.40 covering such units. This adjustment will be made by: multiplying each unit's allocation by 95 percent of the portion of the State's trading program budget under § 97.40 covering such units; dividing by the total number of NO X allowances allocated under paragraph (c)(1) of this section for the control period; and rounding to the nearest whole number of NO X allowances as appropriate.
(d) For each control period specified in § 97.41(d), the Administrator will allocate NO X allowances to NO X Budget units in a given State under § 97.4(a) (except for units exempt under § 97.4(b)) that commence operation, or are projected to commence operation, on or after: May 1, 1997 (for control periods under § 97.41(a)); May 1, 2003, (for control periods under § 97.41(b)); and May 1 of the year 5 years before the beginning of the group of 5 years that includes the control period (for control periods under § 97.41(c)). The Administrator will make the allocations under this paragraph (d) in accordance with the following procedures:
(1) The Administrator will establish one allocation set-aside for each control period. Each allocation set-aside will be allocated NO X allowances equal to 5 percent of the tons of NO X emission in the State's trading program budget under § 97.40, rounded to the nearest whole number of NO X allowances as appropriate.
(2) The NO X authorized account representative of a NO X Budget unit specified in this paragraph (d) may submit to the Administrator a request, in a format specified by the Administrator, to be allocated NO X allowances for the control period. The NO X allowance allocation request must be received by the Administrator on or after the date on which the State permitting authority issues a permit to construct the unit and by January 1 before the control period for which NO X allowances are requested.
(3) In a NO X allowance allocation request under paragraph (d)(2) of this section, the NO X authorized account representative for a NO X Budget unit under § 97.4(a)(1) may request for the control period NO X allowances in an amount that does not exceed the lesser of:
(i) 0.15 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate; or
(ii) The unit's most stringent State or Federal NO X emission limitation multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate.
(4) In a NO X allowance allocation request under paragraph (d)(2) of this section, the NO X authorized account representative for a NO X Budget unit under § 97.4(a)(2) may request for the control period NO X allowances in an amount that does not exceed the lesser of:
(i) 0.17 lb/mmBtu multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate; or
(ii) The unit's most stringent State or Federal NO X emission limitation multiplied by the unit's maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate.
(5) The Administrator will review each NO X allowance allocation request submitted in accordance with paragraph (d)(2) of this section and will allocate NO X allowances pursuant to such request as follows:
(i) Upon receipt of the NO X allowance allocation request, the Administrator will make any necessary adjustments to the request to ensure that the requirements of paragraphs (d) introductory text, (d)(2), (d)(3), and (d)(4) are met.
(ii) The Administrator will determine the following amounts:
(A) The sum of the NO X allowances requested (as adjusted under paragraph (d)(5)(i) of this section) in all NO X allowance allocation requests under paragraph (d)(2) of this section for the control period; and
(B) For units exempt under § 97.4(b) in the State that commenced operation, or are projected to commence operation, on or after May 1, 1997 (for control periods under § 97.41(a)); May 1, 2003, (for control periods under § 97.41(b)); and May 1 of the year 5 years before beginning of the group of 5 years that includes the control period (for control periods under § 97.41(c)), the sum of the NO X emission limitations (in tons of NO X ) on which each unit's exemption under § 97.4(b) is based.
(iii) If the number of NO X allowances in the allocation set-aside for the control period less the amount under paragraph (d)(5)(ii)(B) of this section is not less than the amount determined under paragraph (d)(5)(ii)(A) of this section, the Administrator will allocate the amount of the NO X allowances requested (as adjusted under paragraph (d)(5)(i) of this section) to the NO X Budget unit for which the allocation request was submitted.
(iv) If the number of NO X allowances in the allocation set-aside for the control period less the amount under paragraph (d)(5)(ii)(B) of this section is less than the amount determined under paragraph (d)(5)(ii)(A) of this section, the Administrator will allocate, to the NO X Budget unit for which the allocation request was submitted, the amount of NO X allowances requested (as adjusted under paragraph (d)(5)(i) of this section) multiplied by the number of NO X allowances in the allocation set-aside for the control period less the amount determined under paragraph (d)(5)(ii)(B) of this section, divided by the amount determined under paragraph (d)(5)(ii)(A) of this section, and rounded to the nearest whole number of NO X allowances as appropriate.
(e)(1) For a NO X Budget unit that is allocated NO X allowances under paragraph (d) of this section for a control period, the Administrator will deduct NO X allowances under § 97.54(b), (e), or (f) to account for the actual heat input of the unit during the control period. The Administrator will calculate the number of NO X allowances to be deducted to account for the unit's actual heat input using the following formulas and rounding to the nearest whole number of NO X allowance as appropriate, provided that the number of NO X allowances to be deducted shall be zero if the number calculated is less than zero:
(2) The Administrator will transfer any NO X allowances deducted under paragraph (e)(1) of this section to the allocation set-aside for the control period for which they were allocated.
(f) After making the deductions for compliance under § 97.54(b), (e), or (f) for a control period, the Administrator will determine whether any NO X allowances remain in the allocation set-aside for the control period. The Administrator will allocate any such NO X allowances to the NO X Budget units in the State using the following formula and rounding to the nearest whole number of NO X allowances as appropriate:
(g) If the Administrator determines that NO X allowances were allocated under paragraph (b), (c), or (d) of this section for a control period and the recipient of the allocation is not actually a NO X Budget unit under § 97.4(a), the Administrator will notify the NO X authorized account representative and then will act in accordance with the following procedures:
(1)(i) The Administrator will not record such NO X allowances for the control period in an account under § 97.53;
(ii) If the Administrator already recorded such NO X allowances for the control period in an account under § 97.53 and if the Administrator makes such determination before making all deductions pursuant to § 97.54 (except deductions pursuant to § 97.54(d)(2)) for the control period, then the Administrator will deduct from the account NO X allowances equal in number to and allocated for the same or a prior control period as the NO X allowances allocated to such recipient for the control period. The NO X authorized account representative shall ensure that the account contains the NO X allowances necessary for completion of such deduction. If account does not contain the necessary NO X allowances, the Administrator will deduct the required number of NO X allowances, regardless of the control period for which they were allocated, whenever NO X allowances are recorded in the account; or
(iii) If the Administrator already recorded such NO X allowances for the control period in an account under § 97.53 and if the Administrator makes such determination after making all deductions pursuant to § 97.54 (except deductions pursuant to § 97.54(d)(2)) for the control period, then the Administrator will apply paragraph (g)(1)(ii) of this section to any subsequent control period for which NO X allowances were allocated to such recipient.
(2) The Administrator will transfer the NO X allowances that are not recorded, or that are deducted, pursuant to paragraph (g)(1) of this section to an allocation set-aside for the State in which such source is located.
§ 97.43   Compliance Supplement Pool.
(a) For any NO X Budget unit that reduces its NO X emission rate in the 2001 through 2003 control period, the owners and operators may request early reduction credits in accordance with the following requirements:
(1) Each NO X Budget unit for which the owners and operators intend to request, or request, any early reduction credits in accordance with paragraph (a)(4) of this section shall monitor and report NO X emissions in accordance with subpart H of this part starting in the 2000 control period and for each control period for which such early reduction credits are requested. The unit's percent monitor data availability shall not be less than 90 percent during the 2000 control period, and the unit must be in full compliance with any applicable State or Federal NO X emission control requirements during 2000 through 2002.
(2) NO X emission rate and heat input under paragraphs (a)(3) and (4) of this section shall be determined in accordance with subpart H of this part.
(3) Each NO X Budget unit for which the owners and operators intend to request, or request, any early reduction credits under paragraph (a)(4) of this section shall reduce its NO X emission rate, for each control period for which early reduction credits are requested, to less than both 0.25 lb/mmBtu and 80 percent of the unit's NO X emission rate in the 2000 control period.
(4) The NO X authorized account representative of a NO X Budget unit that meets the requirements of paragraphs (a) (1) and (3) of this section may submit to the Administrator a request for early reduction credits for the unit based on NO X emission rate reductions made by the unit in the control period for 2001 through 2003.
(i) In the early reduction credit request, the NO X authorized account may request early reduction credits for such control period in an amount equal to the unit's heat input for such control period multiplied by the difference between 0.25 lb/mmBtu and the unit's NO X emission rate for such control period, divided by 2000 lb/ton, and rounded to the nearest whole number of tons.
(ii) The early reduction credit request must be submitted, in a format specified by the Administrator, by February 1, 2004.
(b) For any NO X Budget unit that is subject to the Ozone Transport Commission NO X Budget Program under title I of the Clean Air Act, the owners and operators may request early reduction credits in accordance with the following requirements:
(1) The NO X authorized account representative of the unit may submit to the Administrator a request for early reduction credits in an amount equal to the amount of banked allowances under the Ozone Transport Commission NO X Budget Program that were allocated for the control period in 2001 through 2003 and are held by the unit, in accordance with the Ozone Transport Commission NO X Budget Program, as of the date of submission of the request. During the entire control period in 2001 through 2003 for which the allowances were allocated, the unit must have monitored and reported NO X emissions in accordance with part 75 (except for subpart H) of this chapter and the Guidance for Implementation of Emission Monitoring Requirements for the NO X Budget Program (January 28, 1997).
(2) The early reduction credit request under paragraph (b)(1) must be submitted, in a format specified by the Administrator, by February 1, 2004.
(3) The NO X authorized account representative of the unit shall not submit a request for early reduction credits under paragraph (b)(1) of this section for banked allowances under the Ozone Transport Commission NO X Budget Program that were allocated for any control period during which the unit made NO X emission reductions for which he or she submits a request for early reduction credits under paragraph (a) of this section for the unit.
(c) The Administrator will review each early reduction credit request submitted in accordance with paragraph (a) or (b) of this section and will allocate NO X allowances to NO X Budget units in a given State and covered by such request as follows:
(1) Upon receipt of each early reduction credit request, the Administrator will make any necessary adjustments to the request to ensure that the amount of the early reduction credits requested meets the requirements of paragraph (a) or (b) of this section.
(2) After February 1, 2004, the Administrator will make available to the public a statement of the total number of early reduction credits requested by NO X Budget units in the State.
(3) If the State's compliance supplement pool set forth in appendix D to this subpart has a number of NO X allowances not less than the amount of early reduction credits in all early reduction credit requests under paragraph (a) or (b) of this section for 2001 through 2003 (as adjusted under paragraph (c)(1) of this section) submitted by February 1, 2004, the Administrator will allocate to each NO X Budget unit covered by such requests one allowance for each early reduction credit requested (as adjusted under paragraph (c)(1) of this section).
(4) If the State's compliance supplement pool set forth in appendix D to this subpart has a smaller number of NO X allowances than the amount of early reduction credits in all early reduction credit requests under paragraph (a) or (b) of this section for 2001 through 2003 (as adjusted under paragraph (c)(1) of this section) submitted by February 1, 2004, the Administrator will allocate NO X allowances to each NO X Budget unit covered by such requests according to the following formula and rounding to the nearest whole number of NO X allowances as appropriate:
(5) By April 1, 2004, the Administrator will determine by order the allocations under paragraph (c)(3) or (4) of this section. The Administrator will make available to the public each determination of NO X allowance allocations and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with paragraph (c)(1), (3), or (4) of this section. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with paragraph (c)(1), (3), or (4) of this section.
(6) By May 1, 2004, the Administrator will record the allocations under paragraph (c)(3) or (4) of this section.
(7) NO X allowances recorded under paragraph (c)(6) of this section may be deducted for compliance under § 97.54 for the control period in 2004 or 2005. Notwithstanding § 97.55(a), the Administrator will deduct as retired any NO X allowance that is recorded under paragraph (c)(6) of this section and that is not deducted for compliance under § 97.54 for the control period in 2003 or 2004.
§ 97.50   NOXAllowance Tracking System accounts.
(a) Nature and function of compliance accounts and overdraft accounts. Consistent with § 97.51(a), the Administrator will establish one compliance account for each NO X Budget unit and one overdraft account for each source with two or more NO X Budget units. Allocations of NO X allowances pursuant to subpart E of this part or § 97.88, and deductions or transfers of NO X allowances pursuant to § 97.31, § 96.54, § 96.56, subpart G of this part, or subpart I of this part will be recorded in compliance accounts or overdraft accounts in accordance with this subpart.
(b) Nature and function of general accounts. Consistent with § 97.51(b), the Administrator will establish, upon request, a general account for any person. Allocations of NO X allowances pursuant to § 97.4(b)(4)(ii) or § 97.5(c)(2) and transfers of allowances pursuant to subpart G of this part will be recorded in general accounts in accordance with this subpart.
§ 97.51   Establishment of accounts.
(a) Compliance accounts and overdraft accounts. Upon receipt of a complete account certificate of representation under § 97.13, the Administrator will establish:
(1) A compliance account for each NO X Budget unit for which the account certificate of representation was submitted; and
(2) An overdraft account for each source for which the account certificate of representation was submitted and that has two or more NO X Budget units.
(b) General accounts —(1) Application for general account. (i) Any person may apply to open a general account for the purpose of holding and transferring allowances. An application for a general account may designate one and only one NO X authorized account representative and one and only one alternate NO X authorized account representative who may act on behalf of the NO X authorized account representative. The agreement by which the alternate NO X authorized account representative is selected shall include a procedure for authorizing the alternate NO X authorized account representative to act in lieu of the NO X authorized account representative. A complete application for a general account shall be submitted to the Administrator and shall include the following elements in a format prescribed by the Administrator:
(A) Name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the NO X authorized account representative and any alternate NO X authorized account representative;
(B) At the option of the NO X authorized account representative, organization name and type of organization;
(C) A list of all persons subject to a binding agreement for the NO X authorized account representative and any alternate NO X authorized account representative to represent their ownership interest with respect to the allowances held in the general account;
(D) The following certification statement by the NO X authorized account representative and any alternate NO X authorized account representative: “I certify that I was selected as the NO X authorized account representative or the NO X alternate authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to NO X allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NO X Budget Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account.;”
(E) The signature of the NO X authorized account representative and any alternate NO X authorized account representative and the dates signed.
(ii) Unless otherwise required by the permitting authority or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the permitting authority or the Administrator. Neither the permitting authority nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
(2) Authorization of NO X authorized account representative. Upon receipt by the Administrator of a complete application for a general account under paragraph (b)(1) of this section:
(i) The Administrator will establish a general account for the person or persons for whom the application is submitted.
(ii) The NO X authorized account representative and any alternate NO X 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 NO X allowances held in the general account in all matters pertaining to the NO X Budget Trading Program, not withstanding any agreement between the NO X authorized account representative or any alternate NO X authorized account representative and such person. Any such person shall be bound by any order or decision issued to the NO X authorized account representative or any alternate NO X authorized account representative by the Administrator or a court regarding the general account.
(iii) Any representation, action, inaction, or submission by any alternate NO X authorized account representative shall be deemed to be a representation, action, inaction, or submission by the NO X authorized account representative.
(iv) Each submission concerning the general account shall be submitted, signed, and certified by the NO X authorized account representative or any alternate NO X authorized account representative for the persons having an ownership interest with respect to NO X allowances held in the general account. Each such submission shall include the following certification statement by the NO X authorized account representative or any alternate NO X authorizing account representative: “I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the NO X allowances held in the general account. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment.”
(v) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with paragraph (b)(2)(iv) of this section.
(3) Changing NO X authorized account representative and alternate NO X authorized account representative; changes in persons with ownership interest. (i) The NO X 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 NO X authorized account representative prior to the time and date when the Administrator receives the superseding application for a general account shall be binding on the new NO X authorized account representative and the persons with an ownership interest with respect to the NO X allowances in the general account.
(ii) The alternate NO X 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 NO X authorized account representative prior to the time and date when the Administrator receives the superseding application for a general account shall be binding on the new alternate NO X authorized account representative and the persons with an ownership interest with respect to the NO X allowances in the general account.
(iii)(A) In the event a new person having an ownership interest with respect to NO X allowances in the general account is not included in the list of such persons in the account certificate of representation, such new person shall be deemed to be subject to and bound by the account certificate of representation, the representation, actions, inactions, and submissions of the NO X authorized account representative and any alternate NO X authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the Administrator, as if the new person were included in such list.
(B) Within 30 days following any change in the persons having an ownership interest with respect to NO X allowances in the general account, including the addition of persons, the NO X authorized account representative or any alternate NO X 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 NO X allowances in the general account to include the change.
(4) Objections concerning NO X 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 NO X authorized account representative or any alternative NO X authorized account representative for a general account shall affect any representation, action, inaction, or submission of the NO X authorized account representative or any alternative NO X authorized account representative or the finality of any decision or order by the Administrator under the NO X Budget Trading Program.
(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the NO X authorized account representative or any alternative NO X authorized account representative for a general account, including private legal disputes concerning the proceeds of NO X 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.
§ 97.52   NOXAllowance Tracking System responsibilities of NOXauthorized account representative.
(a) Following the establishment of a NO X 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 NO X allowances in the account, shall be made only by the NO X authorized account representative for the account.
(b) Authorized account representative identification. The Administrator will assign a unique identifying number to each NO X authorized account representative.
§ 97.53   Recordation of NOXallowance allocations.
(a) The Administrator will record the NO X allowances for 2004 for a NO X Budget unit allocated under subpart E of this part in the unit's compliance account, except for NO X allowances under § 97.4(b)(4)(ii) or § 97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NO X allowances for 2004 for a NO X Budget opt-in unit in the unit's compliance account as allocated under § 97.88(a).
(b) By May 1, 2003, the Administrator will record the NO X allowances for 2005 for a NO X Budget unit allocated under subpart E of this part in the unit's compliance account, except for NO X allowances under § 97.4(b)(4)(ii) or § 97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NO X allowances for 2005 for a NO X Budget opt-in unit in the unit's compliance account as allocated under § 97.88(a).
(c) By May 1, 2003, the Administrator will record the NO X allowances for 2006 for a NO X Budget unit allocated under subpart E of this part in the unit's compliance account, except for NO X allowances under § 97.4(b)(4)(ii) or § 97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NO X allowances for 2006 for a NO X Budget opt-in unit in the unit's compliance account as allocated under § 97.88(a).
(d) By May 1, 2004, the Administrator will record the NO X allowances for 2007 for a NO X Budget unit allocated under subpart E of this part in the unit's compliance account, except for NO X allowances under § 97.4(b)(4)(ii) or § 97.5(c)(2), which will be recorded in the general account specified by the owners and operators of the unit. The Administrator will record NO X allowances for 2007 for a NO X Budget opt-in unit in the unit's compliance account as allocated under § 97.88(a).
(e) Each year starting with 2005, after the Administrator has made all deductions from a NO X Budget unit's compliance account and the overdraft account pursuant to § 97.54 (except deductions pursuant to § 97.54(d)(2)), the Administrator will record:
(1) NO X allowances, in the compliance account, as allocated to the unit under subpart E of this part for the third year after the year of the control period for which such deductions were or could have been made;
(2) NO X allowances, in the general account specified by the owners and operators of the unit, as allocated under § 97.4(b)(4)(ii) or § 97.5(c)(2) for the third year after the year of the control period for which such deductions are or could have been made; and
(3) NO X allowances, in the compliance account, as allocated to the unit under § 97.88(a).
(f) Serial numbers for allocated NO X allowances. When allocating NO X allowances to a NO X Budget unit and recording them in an account, the Administrator will assign each NO X allowance a unique identification number that will include digits identifying the year for which the NO X allowance is allocated.
§ 97.54   Compliance.
(a) NO X allowance transfer deadline. The NO X allowances are available to be deducted for compliance with a unit's NO X Budget emissions limitation for a control period in a given year only if the NO X allowances:
(1) Were allocated for a control period in a prior year or the same year; and
(2) Are held in the unit's compliance account, or the overdraft account of the source where the unit is located, as of the NO X allowance transfer deadline for that control period or are transferred into the compliance account or overdraft account by a NO X allowance transfer correctly submitted for recordation under § 97.60 by the NO X allowance transfer deadline for that control period.
(b) Deductions for compliance. (1) Following the recordation, in accordance with § 97.61, of NO X allowance transfers submitted for recordation in the unit's compliance account or the overdraft account of the source where the unit is located by the NO X allowance transfer deadline for a control period, the Administrator will deduct NO X allowances available under paragraph (a) of this section to cover the unit's NO X emissions (as determined in accordance with subpart H of this part), or to account for actual heat input under § 97.42(e), for the control period:
(i) From the compliance account; and
(ii) Only if no more NO X allowances available under paragraph (a) of this section remain in the compliance account, from the overdraft account. In deducting allowances for units at the source from the overdraft account, the Administrator will begin with the unit having the compliance account with the lowest account number and end with the unit having the compliance account with the highest account number (with account numbers sorted beginning with the left-most character and ending with the right-most character and the letter characters assigned values in alphabetical order and less than all numeric characters).
(2) The Administrator will deduct NO X allowances first under paragraph (b)(1)(i) of this section and then under paragraph (b)(1)(ii) of this section:
(i) Until the number of NO X allowances deducted for the control period equals the number of tons of NO X emissions, determined in accordance with subpart H of this part, from the unit for the control period for which compliance is being determined, plus the number of NO X allowances required for deduction to account for actual heat input under § 97.42(e) for the control period; or
(ii) Until no more NO X allowances available under paragraph (a) of this section remain in the respective account.
(c)(1) Identification of NO X allowances by serial number. The NO X authorized account representative for each compliance account may identify by serial number the NO X allowances to be deducted from the unit's compliance account under paragraph (b), (d), (e), or (f) of this section. Such identification shall be made in the compliance certification report submitted in accordance with § 97.30.
(2) First-in, first-out. The Administrator will deduct NO X allowances for a control period from the compliance account, in the absence of an identification or in the case of a partial identification of NO X allowances by serial number under paragraph (c)(1) of this section, or the overdraft account on a first-in, first-out (FIFO) accounting basis in the following order:
(i) Those NO X allowances that were allocated for the control period to the unit under subpart E or I of this part;
(ii) Those NO X allowances that were allocated for the control period to any unit and transferred and recorded in the account pursuant to subpart G of this part, in order of their date of recordation;
(iii) Those NO X allowances that were allocated for a prior control period to the unit under subpart E or I of this part; and
(iv) Those NO X allowances that were allocated for a prior control period to any unit and transferred and recorded in the account pursuant to subpart G of this part, in order of their date of recordation.
(d) Deductions for excess emissions. (1) After making the deductions for compliance under paragraph (b) of this section, the Administrator will deduct from the unit's compliance account or the overdraft account of the source where the unit is located a number of NO X allowances, allocated for a control period after the control period in which the unit has excess emissions, equal to three times the number of the unit's excess emissions.
(2) If the compliance account or overdraft account does not contain sufficient NO X allowances, the Administrator will deduct the required number of NO X allowances, regardless of the control period for which they were allocated, whenever NO X allowances are recorded in either account.
(3) Any allowance deduction required under paragraph (d) of this section shall not affect the liability of the owners and operators of the NO X Budget unit for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under the Clean Air Act or applicable State law. The following guidelines will be followed in assessing fines, penalties or other obligations:
(i) For purposes of determining the number of days of violation, if a NO X Budget unit has excess emissions for a control period, each day in the control period (153 days) constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
(ii) Each ton of excess emissions is a separate violation.
(e) Deductions for units sharing a common stack. In the case of units sharing a common stack and having emissions that are not separately monitored or apportioned in accordance with subpart H of this part:
(1) The NO X authorized account representative of the units may identify the percentage of NO X allowances to be deducted from each such unit's compliance account to cover the unit's share of NO X emissions from the common stack for a control period. Such identification shall be made in the compliance certification report submitted in accordance with § 97.30.
(2) Notwithstanding paragraph (b)(2)(i) of this section, the Administrator will deduct NO X allowances for each such unit until the number of NO X allowances deducted equals the unit's identified percentage under paragraph (e)(1) of this section or, if no percentage is identified, an equal percentage for each unit multiplied by the number of tons of NO X emissions, as determined in accordance with subpart H of this part, from the common stack for the control period for which compliance is being determined. In addition to the deductions under the first sentence of this paragraph (e)(1), the Administrator will deduct NO X allowances for each such unit until the number of NO X allowances deducted equals the number of NO X allowances required to account for actual heat input under § 97.42(e) for the unit for the control period.
(f) Deduction of banked allowances. Each year starting in 2006, after the Administrator has completed the designation of banked NO X allowances under § 97.55(b) and before May 1 of the year, the Administrator will determine the extent to which banked NO X allowances otherwise available under paragraph (a) of this section are available for compliance in the control period for the current year, as follows. For each State NO X Budget Trading Program that is established, and approved and administered by the Administrator pursuant to § 51.121 of this chapter, the terms “compliance account” or “compliance accounts”, “overdraft account” or “overdraft accounts”, “general account” or “general accounts”, “States”, and “trading program budgets under § 97.40” in paragraphs (f)(1) through (f)(3) of this section shall be read to include respectively: A compliance account or compliance accounts established under such State NO X Budget Trading Program; an overdraft account or overdraft accounts established under such State NO X Budget Trading Program; a general account or general accounts established under such State NO X Budget Trading Program; the State or portion of a State covered by such State NO X Budget Trading Program; and the trading program budget of the State or portion of a State covered by such State NO X Budget Trading Program.
(1) The Administrator will determine the total number of banked NO X allowances held in compliance accounts, overdraft accounts, or general accounts.
(2) If the total number of banked NO X allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts is less than or equal to 10 percent of the sum of the trading program budgets under § 97.40 for all States for the control period, any banked NO X allowance may be deducted for compliance in accordance with paragraphs (a) through (e) of this section.
(3) If the total number of banked NO X allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts exceeds 10 percent of the sum of the trading program budgets under § 97.40 for all States for the control period, any banked allowance may be deducted for compliance in accordance with paragraphs (a) through (e) of this section, except as follows:
(i) The Administrator will determine the following ratio: 0.10 multiplied by the sum of the trading program budgets under § 97.40 for all States for the control period and divided by the total number of banked NO X allowances determined, under paragraph (f)(1) of this section, to be held in compliance accounts, overdraft accounts, or general accounts.
(ii) The Administrator will multiply the number of banked NO X allowances in each compliance account or overdraft account by the ratio determined under paragraph (f)(3)(i) of this section. The resulting product is the number of banked NO X allowances in the account that may be deducted for compliance in accordance with paragraphs (a) through (e) of this section. Any banked NO X allowances in excess of the resulting product may be deducted for compliance in accordance with paragraphs (a) through (e) of this section, except that, if such NO X allowances are used to make a deduction under paragraph (b) or (e) of this section, two (rather than one) such NO X allowances shall authorize up to one ton of NO X emissions during the control period and must be deducted for each deduction of one NO X allowance required under paragraph (b) or (e) of this section.
(g) Recordation of deductions. The Administrator will record in the appropriate compliance account or overdraft account all deductions from such an account pursuant to paragraph (b), (d), (e), or (f) of this section.
§ 97.55   Banking.
NO X allowances may be banked for future use or transfer in a compliance account, an overdraft account, or a general account, as follows:
(a) Any NO X allowance that is held in a compliance account, an overdraft account, or a general account will remain in such account unless and until the NO X allowance is deducted or transferred under § 97.31, § 97.54, § 97.56, or subpart G or I of this part.
(b) The Administrator will designate, as a “banked” NO X allowance, any NO X allowance that remains in a compliance account, an overdraft account, or a general account after the Administrator has made all deductions for a given control period from the compliance account or overdraft account pursuant to § 97.54 (except deductions pursuant to § 97.54(d)(2)) and that was allocated for that control period or a control period in a prior year.
§ 97.56   Account error.
The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any NO X Allowance Tracking System account. Within 10 business days of making such correction, the Administrator will notify the NO X authorized account representative for the account.
§ 97.57   Closing of general accounts.
(a) The NO X authorized account representative of a general account may instruct the Administrator to close the account by submitting a statement requesting deletion of the account from the NO X Allowance Tracking System and by correctly submitting for recordation under § 97.60 an allowance transfer of all NO X allowances in the account to one or more other NO X Allowance Tracking System accounts.
(b) If a general account shows no activity for a period of a year or more and does not contain any NO X allowances, the Administrator may notify the NO X authorized account representative for the account that the account will be closed and deleted from the NO X Allowance Tracking System following 20 business days after the notice is sent. The account will be closed after the 20-day period unless before the end of the 20-day period the Administrator receives a correctly submitted transfer of NO X allowances into the account under § 97.60 or a statement submitted by the NO X authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.
§ 97.60   Submission of NOXallowance transfers.
The NO X authorized account representatives seeking recordation of a NO X allowance transfer shall submit the transfer to the Administrator. To be considered correctly submitted, the NO X allowance transfer shall include the following elements in a format specified by the Administrator:
(a) The numbers identifying both the transferor and transferee accounts;
(b) A specification by serial number of each NO X allowance to be transferred; and
(c) The printed name and signature of the NO X authorized account representative of the transferor account and the date signed.
§ 97.61   EPA recordation.
(a) Within 5 business days of receiving a NO X allowance transfer, except as provided in paragraph (b) of this section, the Administrator will record a NO X allowance transfer by moving each NO X allowance from the transferor account to the transferee account as specified by the request, provided that:
(1) The transfer is correctly submitted under § 97.60; and
(2) The transferor account includes each NO X allowance identified by serial number in the transfer.
(b) A NO X allowance transfer that is submitted for recordation following the NO X allowance transfer deadline and that includes any NO X allowances allocated for a control period prior to or the same as the control period to which the NO X allowance transfer deadline applies will not be recorded until after the Administrator completes the recordation of NO X allowance allocations under § 97.53 for the control period in the fourth year after the control period to which the NO X allowance transfer deadline applies.
(c) Where a NO X allowance transfer submitted for recordation fails to meet the requirements of paragraph (a) of this section, the Administrator will not record such transfer.
§ 97.62   Notification.
(a) Notification of recordation. Within 5 business days of recordation of a NO X allowance transfer under § 97.61, the Administrator will notify the NO X authorized account representatives of both the transferor and transferee accounts.
(b) Notification of non-recordation. Within 10 business days of receipt of a NO X allowance transfer that fails to meet the requirements of § 97.61(a), the Administrator will notify the NO X 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 NO X allowance transfer for recordation following notification of non-recordation.
§ 97.70   General requirements.
The owners and operators, and to the extent applicable, the NO X authorized account representative of a NO X Budget unit, shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this subpart and in subpart H of part 75 of this chapter. For purposes of complying with such requirements, the definitions in § 97.2 and in § 72.2 of this chapter shall apply, and the terms “affected unit,” “designated representative,” and “continuous emission monitoring system” (or “CEMS”) in part 75 of this chapter shall be deemed to refer to the terms “NO X Budget unit,” “NO X authorized account representative,” and “continuous emission monitoring system” (or “CEMS”) respectively, as defined in § 97.2. The owner or operator of a unit that is not a NO X Budget unit but that is monitored under § 75.72(b)(2)(ii) of this chapter shall comply with the monitoring, recordkeeping, and reporting requirements for a NO X Budget unit under this part.
(a) Requirements for installation, certification, and data accounting. The owner or operator of each NO X Budget unit shall meet the following requirements. These provisions shall also apply to a unit for which an application for a NO X Budget opt-in permit is submitted and not denied or withdrawn, as provided in subpart I of this part:
(1) Install all monitoring systems required under this subpart for monitoring NO X mass emissions. This includes all systems required to monitor NO X emission rate, NO X concentration, heat input rate, and stack flow rate, in accordance with §§ 75.71 and 75.72 of this chapter.
(2) Install all monitoring systems for monitoring heat input rate.
(3) Successfully complete all certification tests required under § 97.71 and meet all other requirements of this subpart and part 75 of this chapter applicable to the monitoring systems under paragraphs (a)(1) and (2) of this section.
(4) Record, report, and quality-assure the data from the monitoring systems under paragraphs (a)(1) and (2) of this section.
(b) Compliance deadlines. The owner or operator shall meet the certification and other requirements of paragraphs (a)(1) through (a)(3) of this section on or before the following dates. The owner or operator shall record, report and quality-assure the data from the monitoring systems under paragraphs (a)(1) and (a)(2) of this section on and after the following dates.
(1) For the owner or operator of a NO X Budget unit for which the owner or operator intends to apply for early reduction credits under § 97.43, by May 1, 2001. If the owner or operator of a NO X Budget unit fails to meet this deadline, he or she is not eligible to apply for early reduction credits and is subject to the deadline under paragraph (b)(2) of this section.
(2) For the owner or operator of a NO X Budget unit under § 97.4(a) that commences operation before January 1, 2003 and that is not subject to or does not meet the deadline under paragraph (b)(1) of this section, by May 1, 2003.
(3) For the owner or operator of a NO X Budget unit under § 97.4(a) that commences operation on or after January 1, 2003 and that reports on an annual basis under § 97.74(d) by the following dates:
(i) The earlier of 90 unit operating days after the date on which the unit commences commercial operation or 180 calendar days after the date on which the unit commences commercial operation; or
(ii) May 1, 2003, if the compliance date under paragraph (b)(3)(i) of this section is before May 1, 2003.
(4) For the owner or operator of a NO X Budget unit under § 97.4(a) that commences operation on or after January 1, 2003 and that reports on a control period basis under § 97.74(d)(2)(ii), by the following dates:
(i) The earlier of 90 unit operating days or 180 calendar days after the date on which the unit commences commercial operation, if this compliance date is during a control period; or
(ii) May 1 immediately following the compliance date under paragraph (b)(4)(i) of this section, if such compliance date is not during a control period.
(5) For the owner or operator of a NO X Budget unit that has a new stack or flue or add-on NO X emission controls for which construction is completed after the applicable deadline under paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under subpart I of this part and that reports on an annual basis under § 97.74(d), by the earlier of 90 unit operating days or 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NO X emission controls.
(6) For the owner or operator of a NO X Budget unit that has a new stack or flue or add-on NO X emission controls for which construction is completed after the applicable deadline under paragraph (b)(1), (b)(2), (b)(3), or (b)(4) of this section or under subpart I of this part and that reports on a control period basis under § 97.74(d)(2)(ii), by the following dates:
(i) The earlier of 90 unit operating days or 180 calendar days after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NO X emission controls, if this compliance date is during a control period; or
(ii) May 1 immediately following the compliance date under paragraph (b)(6)(i) of this section, if such compliance date is not during a control period.
(7) For the owner or operator of a unit for which an application for a NO X Budget opt-in permit is submitted and not denied or withdrawn, by the date specified under subpart I of this part.
(c) Commencement of data reporting. (1) The owner or operator of NO X Budget units under paragraph (b)(1) or (b)(2) of this section shall determine, record and report NO X mass emissions, heat input rate, and any other values required to determine NO X mass emissions ( e.g., NO X emission rate and heat input rate, or NO X concentration and stack flow rate) in accordance with § 75.70(g) of this chapter, beginning on the first hour of the applicable compliance deadline in paragraph (b)(1) or (b)(2) of this section.
(2) The owner or operator of a NO X Budget unit under paragraph (b)(3) or (b)(4) of this section shall determine, record and report NO X mass emissions, heat input rate, and any other values required to determine NO X mass emissions ( e.g., NO X emission rate and heat input rate, or NO X concentration and stack flow rate) and electric and thermal output in accordance with § 75.70(g) of this chapter, beginning on:
(i) The date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is during a control period; or
(ii) The first hour on May 1 of the first control period after the date and hour on which the unit commences operation, if the date and hour on which the unit commences operation is not during a control period.
(3) Notwithstanding paragraphs (c)(2)(i) and (c)(2)(ii) of this section, the owner or operator may begin reporting NO X mass emission data and heat input data before the date and hour under paragraph (c)(2)(i) or (c)(2)(ii) of this section if the unit reports on an annual basis and if the required monitoring systems are certified before the applicable date and hour under paragraph (c)(1) or (c)(2) of this section.
(d) Prohibitions. (1) No owner or operator of a NO X Budget unit shall use any alternative monitoring system, alternative reference method, or any other alternative for the required continuous emission monitoring system without having obtained prior written approval in accordance with § 97.75.
(2) No owner or operator of a NO X Budget unit shall operate the unit so as to discharge, or allow to be discharged, NO X emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this subpart and part 75 of this chapter, except as provided in § 75.74 of this chapter.
(3) No owner or operator of a NO X Budget unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording NO X mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this subpart and part 75 of this chapter or except as provided in § 75.74 of this chapter.
(4) No owner or operator of a NO X Budget unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved emission monitoring system under this subpart, except under any one of the following circumstances:
(i) During the period that the unit is covered by an exemption under § 97.4(b) or § 97.5 that is in effect;
(ii) The owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this subpart and part 75 of this chapter, by the permitting authority for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or
(iii) The NO X authorized account representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with § 97.71(b)(2).
§ 97.71   Initial certification and recertification procedures.
(a) The owner or operator of a NO X Budget unit that is subject to an Acid Rain emissions limitation shall comply with the initial certification and recertification procedures of part 75 of this chapter for NO X -diluent CEMS, flow monitors, NO X concentration CEMS, or excepted monitoring systems under appendix E of part 75 of this chapter for NO X . under appendix D for heat input, or under § 75.19 for NO X and heat input, except that:
(1) If, prior to January 1, 1998, the Administrator approved a petition under § 75.17(a) or (b) of this chapter for apportioning the NO X emission rate measured in a common stack or a petition under § 75.66 of this chapter for an alternative to a requirement in § 75.17 of this chapter, the NO X authorized account representative shall resubmit the petition to the Administrator under § 97.75(a) to determine if the approval applies under the NO X Budget Trading Program.
(2) For any additional CEMS required under the common stack provisions in § 75.72 of this chapter or for any NO X concentration CEMS used under the provisions of § 75.71(a)(2) of this chapter, the owner or operator shall meet the requirements of paragraph (b) of this section.
(b) The owner or operator of a NO X Budget unit that is not subject to an Acid Rain emissions limitation shall comply with the following initial certification and recertification procedures. The owner or operator of such a unit that qualifies to use the low mass emissions excepted monitoring methodology under § 75.19 of this chapter or that qualifies to use an alternative monitoring system under subpart E of part 75 of this chapter shall comply with the following procedures, as modified by paragraph (c) or (d) of this section. The owner or operator of a NO X Budget unit that is subject to an Acid Rain emissions limitation and that requires additional CEMS under the common stack provisions in § 75.72 of this chapter or uses a NO X concentration CEMS under § 75.71(a)(2) of this chapter shall comply with the following procedures.
(1) Requirements for initial certification. The owner or operator shall ensure that each emission monitoring system required by subpart H of part 75 of this chapter (which includes the automated data acquisition and handling system) successfully completes all of the initial certification testing required under § 75.20 of this chapter by the applicable deadline in § 97.70(b). In addition, whenever the owner or operator installs an emission monitoring system in order to meet the requirements of this part in a location where no such emission monitoring system was previously installed, initial certification in accordance with § 75.20 of this chapter is required.
(2) Requirements for recertification. Whenever the owner or operator makes a replacement, modification, or change in a certified emission monitoring system that may significantly affect the ability of the system to accurately measure or record NO X mass emissions or heat input rate or to meet the requirements of § 75.21 of this chapter or appendix B to part 75 of this chapter, the owner or operator shall recertify the emission monitoring system in accordance with § 75.20(b) of this chapter. Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify the continuous emissions monitoring system in accordance with § 75.20(b) of this chapter. Examples of changes that require recertification include: replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site.
(3) Certification approval process for initial certification and recertification —(i) Notification of certification. The NO X authorized account representative shall submit to the Administrator, the appropriate EPA Regional Office and the permitting authority written notice of the dates of certification in accordance with § 97.73.
(ii) Certification application. The NO X authorized account representative shall submit to the Administrator, the appropriate EPA Regional Office and the permitting authority a certification application for each emission monitoring system required under subpart H of part 75 of this chapter. A complete certification application shall include the information specified in subpart H of part 75 of this chapter.
(iii) Except for units using the low mass emission excepted methodology under § 75.19 of this chapter, the provisional certification date for a monitor shall be determined in accordance with § 75.20(a)(3) of this chapter. A provisionally certified monitor may be used under the NO X Budget Trading Program for a period not to exceed 120 days after receipt by the Administrator of the complete certification application for the monitoring system under paragraph (b)(3)(ii) of this section. Data measured and recorded by the provisionally certified monitoring system, in accordance with the requirements of part 75 of this chapter, will be considered valid quality-assured data (retroactive to the date and time of provisional certification), provided that the Administrator does not invalidate the provisional certification by issuing a notice of disapproval within 120 days of receipt of the complete certification application by the Administrator.
(iv) Certification application formal approval process. The Administrator will issue a written notice of approval or disapproval of the certification application to the owner or operator within 120 days of receipt of the complete certification application under paragraph (b)(3)(ii) of this section. In the event the Administrator does not issue such a notice within such 120-day period, each monitoring system that meets the applicable performance requirements of part 75 of this chapter and is included in the certification application will be deemed certified for use under the NO X Budget Trading Program.
(A) Approval notice. If the certification application is complete and shows that each monitoring system meets the applicable performance requirements of part 75 of this chapter, then the Administrator will issue a written notice of approval of the certification application within 120 days of receipt.
(B) Incomplete application notice. A certification application will be considered complete when all of the applicable information required to be submitted under paragraph (b)(3)(ii) of this section has been received by the Administrator. If the certification application is not complete, then the Administrator will issue a written notice of incompleteness that sets a reasonable date by which the NO X authorized account representative must submit the additional information required to complete the certification application. If the NO X authorized account representative does not comply with the notice of incompleteness by the specified date, then the Administrator may issue a notice of disapproval under paragraph (b)(3)(iv)(C) of this section. The 120-day review period shall not begin prior to receipt of a complete certification application.
(C) Disapproval notice. If the certification application shows that any monitoring system or component thereof does not meet the performance requirements of this part, or if the certification application is incomplete and the requirement for disapproval under paragraph (b)(3)(iv)(B) of this section has been met, then the Administrator will issue a written notice of disapproval of the certification application. Upon issuance of such notice of disapproval, the provisional certification is invalidated by the Administrator and the data measured and recorded by each uncertified monitoring system shall not be considered valid quality-assured data beginning with the date and hour of provisional certification (as defined under § 75.20(a)(3) of this chapter). The owner or operator shall follow the procedures for loss of certification in paragraph (b)(3)(v) of this section for each monitoring system that is disapproved for initial certification.
(D) Audit decertification. The Administrator may issue a notice of disapproval of the certification status of a monitor in accordance with § 97.72(b).
(v) Procedures for loss of certification. If the Administrator issues a notice of disapproval of a certification application under paragraph (b)(3)(iv)(C) of this section or a notice of disapproval of certification status under paragraph (b)(3)(iv)(D) of this section, then:
(A) The owner or operator shall substitute the following values, for each hour of unit operation during the period of invalid data specified under § 75.20(a)(4)(iii), § 75.20(b)(5), § 75.20(h)(4), or § 75.21(e) and continuing until the date and hour specified under § 75.20(a)(5)(i) of this chapter:
( 1 ) For units that the owner or operator intends to monitor or monitors for NO X emission rate and heat input rate or intends to determine or determines NO X mass emissions using the low mass emission excepted methodology under § 75.19 of this chapter, the maximum potential NO X emission rate and the maximum potential hourly heat input of the unit; and
( 2 ) For units that the owner or operator intends to monitor or monitors for NO X mass emissions using a NO X pollutant concentration monitor and a flow monitor, the maximum potential concentration of NO X and the maximum potential flow rate of the unit under section 2 of appendix A of part 75 of this chapter.
(B) The NO X authorized account representative shall submit a notification of certification retest dates and a new certification application in accordance with paragraphs (b)(3)(i) and (ii) of this section.
(C) The owner or operator shall repeat all certification tests or other requirements that were failed by the monitoring system, as indicated in the Administrator's notice of disapproval, no later than 30 unit operating days after the date of issuance of the notice of disapproval.
(c) Initial certification and recertification procedures for low mass emission units using the excepted methodologies under § 75.19 of this chapter. The owner or operator of a gas-fired or oil-fired unit using the low mass emissions excepted methodology under § 75.19 of this chapter and not subject to an Acid Rain emissions limitation shall meet the applicable general operating requirements of § 75.10 of this chapter and the applicable requirements of § 75.19 of this chapter. The owner or operator of such a unit shall also meet the applicable certification and recertification procedures of paragraph (b) of this section, except that the excepted methodology shall be deemed provisionally certified for use under the NO X Budget Trading Program as of the date on which a complete certification application is received by the Administrator. The methodology shall be considered to be certified either upon receipt of a written notice of approval from the Administrator or, if such notice is not provided, at the end of the Administrator's 120 day review period. However, a provisionally certified or certified low mass emissions excepted methodology shall not be used to report data under the NO X Budget Trading Program prior to the applicable commencement date specified in § 75.19(a)(1)(ii) of this chapter.
(d) Certification/recertification procedures for alternative monitoring systems. The NO X authorized account representative of each unit not subject to an Acid Rain emissions limitation for which the owner or operator intends to use an alternative monitoring system approved by the Administrator under subpart E of part 75 of this chapter shall comply with the applicable certification procedures of paragraph (b) of this section before using the system under the NO X Budget Trading Program. The NO X authorized account representative shall also comply with the applicable recertification procedures of paragraph (b) of this section. Section 75.20(f) of this chapter shall apply to such alternative monitoring system.
§ 97.72   Out of control periods.
(a) Whenever any emission monitoring system fails to meet the quality assurance or data validation requirements of part 75 of this chapter, data shall be substituted using the applicable procedures in subpart D, subpart H, appendix D, or appendix E of part 75 of this chapter.
(b) Audit decertification. Whenever both an audit of an emission monitoring system and a review of the initial certification or recertification application reveal that any system should not have been certified or recertified because it did not meet a particular performance specification or other requirement under § 97.71 or the applicable provisions of part 75 of this chapter, both at the time of the initial certification or recertification application submission and at the time of the audit, the Administrator will issue a notice of disapproval of the certification status of such system. For the purposes of this paragraph, an audit shall be either a field audit or an audit of any information submitted to the permitting authority or the Administrator. By issuing the notice of disapproval, the Administrator revokes prospectively the certification status of the system. The data measured and recorded by the system shall not be considered valid quality-assured data from the date of issuance of the notification of the revoked certification status until the date and time that the owner or operator completes subsequently approved initial certification or recertification tests for the system. The owner or operator shall follow the initial certification or recertification procedures in § 97.71 for each disapproved system.
§ 97.73   Notifications.
(a) The NO X authorized account representative for a NO X Budget unit shall submit written notice to the Administrator, the appropriate EPA Regional Office, and the permitting authority in accordance with § 75.61 of this chapter.
(b) For any unit that does not have an Acid Rain emissions limitation, the permitting authority may waive the requirement to notify the permitting authority in paragraph (a) of this section.
§ 97.74   Recordkeeping and reporting.
(a) General provisions. (1) The NO X authorized account representative shall comply with all recordkeeping and reporting requirements in this section, with the recordkeeping and reporting requirements under § 75.73 of this chapter, and with the requirements of § 97.10(e)(1).
(2) If the NO X authorized account representative for a NO X Budget unit subject to an Acid Rain emission limitation who signed and certified any submission that is made under subpart F or G of part 75 of this chapter and that includes data and information required under this subpart or subpart H of part 75 of this chapter is not the same person as the designated representative or the alternative designated representative for the unit under part 72 of this chapter, then the submission must also be signed by the designated representative or the alternative designated representative.
(b) Monitoring plans. (1) The owner or operator of a unit subject to an Acid Rain emissions limitation shall comply with requirements of § 75.62 of this chapter, except that the monitoring plan shall also include all of the information required by subpart H of part 75 of this chapter.
(2) The owner or operator of a unit that is not subject to an Acid Rain emissions limitation shall comply with requirements of § 75.62 of this chapter, except that the monitoring plan is only required to include the information required by subpart H of part 75 of this chapter.
(c) Certification applications. The NO X authorized account representative shall submit an application to the Administrator, the appropriate EPA Regional Office, and the permitting authority within 45 days after completing all initial certification or recertification tests required under § 97.71 including the information required under subpart H of part 75 of this chapter.
(d) Quarterly reports. The NO X authorized account representative shall submit quarterly reports, as follows:
(1) If a unit is subject to an Acid Rain emission limitation or if the owner or operator of the NO X budget unit chooses to meet the annual reporting requirements of this subpart H, the NO X authorized account representative shall submit a quarterly report for each calendar quarter beginning with:
(i) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under § 97.43, the calendar quarter that covers May 1, 2000 through June 30, 2000. The NO X mass emission data shall be recorded and reported from the first hour on May 1, 2000; or
(ii) For a unit that commences operation before January 1, 2003 and that is not subject to paragraph (d)(1)(i) of this section, the calendar quarter covering May 1, 2003 through June 30, 2003. The NO X mass emission data shall be recorded and reported from the first hour on May 1, 2003; or
(iii) For a unit that commences operation on or after January 1, 2003:
(A) The calendar quarter in which the unit commences operation, if unit operation commences during a control period. The NO X mass emission data shall be recorded and reported from the date and hour when the unit commences operation; or
(B) The calendar quarter which includes May 1 through June 30 of the first control period following the date on which the unit commences operation, if the unit does not commence operation during a control period. The NO X mass emission data shall be recorded and reported from the first hour on May 1 of that control period; or
(iv) A calendar quarter before the quarter specified in paragraph (d)(1)(i), (d)(1)(ii), or (d)(1)(iii)(B) of this section, if the owner or operator elects to begin reporting early under § 97.70(c)(3).
(2) If a NO X budget unit is not subject to an Acid Rain emission limitation, then the NO X authorized account representative shall either:
(i) Meet all of the requirements of part 75 related to monitoring and reporting NO X mass emissions during the entire year and meet the deadlines specified in paragraph (d)(1) of this section; or
(ii) Submit quarterly reports, documenting NO X mass emissions from the unit, only for the period from May 1 through September 30 of each year and including the data described in § 75.74(c)(6) of this chapter. The NO X authorized account representative shall submit such quarterly reports, beginning with:
(A) For a unit for which the owner or operator intends to apply or applies for the early reduction credits under § 97.43, the calendar quarter that covers May 1, 2000 through June 30, 2000. The NO X mass emission data shall be recorded and reported from the first hour on May 1, 2000; or
(B) For a unit that commences operation before January 1, 2003 and that is not subject to paragraph (d)(2)(ii)(A) of this section, the calendar quarter covering May 1, 2003 through June 30, 2003. The NO X mass emission data shall be recorded and reported from the first hour on May 1, 2003; or
(C) For a unit that commences operation on or after January 1, 2003 and during a control period, the calendar quarter in which the unit commences operation. The NO X mass emission data shall be recorded and reported from the date and hour when the unit commences operation; or
(D) For a unit that commences operation on or after January 1, 2003 and not during a control period, the calendar quarter which includes May 1 through June 30 of the first control period following the date on which the unit commences operation. The NO X mass emission data shall be recorded and reported from the first hour on May 1 of that control period.
(3) The NO X authorized account representative shall submit each quarterly report to the Administrator within 30 days following the end of the calendar quarter covered by the report. Quarterly reports shall be submitted in the manner specified in subpart H of part 75 of this chapter and § 75.64 of this chapter.
(i) For units subject to an Acid Rain emissions limitation, quarterly reports shall include all of the data and information required in subpart H of part 75 of this chapter for each NO X Budget unit (or group of units using a common stack) and the data and information required in subpart G of part 75 of this chapter.
(ii) For units not subject to an Acid Rain emissions limitation, quarterly reports are only required to include all of the data and information required in subpart H of part 75 of this chapter for each NO X Budget unit (or group of units using a common stack).
(4) Compliance certification. The NO X authorized account representative shall submit to the Administrator a compliance certification in support of each quarterly report based on reasonable inquiry of those persons with primary responsibility for ensuring that all of the unit's emissions are correctly and fully monitored. The certification shall state that:
(i) The monitoring data submitted were recorded in accordance with the applicable requirements of this subpart and part 75 of this chapter, including the quality assurance procedures and specifications;
(ii) For a unit with add-on NO X emission controls and for all hours where data are substituted in accordance with § 75.34(a)(1) of this chapter, the add-on emission controls were operating within the range of parameters listed in the quality assurance/quality control program under appendix B of part 75 of this chapter and the substitute values do not systematically underestimate NO X emissions; and
(iii) For a unit that is reporting on a control period basis under paragraph (d)(2)(ii) of this section, the NO X emission rate and NO X concentration values substituted for missing data under subpart D of part 75 of this chapter are calculated using only values from a control period and do not systematically underestimate NO X emissions.
§ 97.75   Petitions.
(a) The NO X authorized account representative of a NO X Budget unit may submit a petition under § 75.66 of this chapter to the Administrator requesting approval to apply an alternative to any requirement of this subpart.
(b) Application of an alternative to any requirement of this subpart is in accordance with this subpart only to the extent that the petition is approved by the Administrator under § 75.66 of this chapter.
§ 97.76   Additional requirements to provide heat input data.
The owner or operator of a NO X Budget unit that monitors and reports NO X mass emissions using a NO X 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.
§ 97.80   Applicability.
A unit that is in a State (as defined in § 97.2), is not a NO X Budget unit under § 97.4(a), is not a unit exempt under § 97.4(b), vents all of its emissions to a stack, and is operating, may qualify to be a NO X Budget opt-in unit under this subpart. A unit that is a NO X Budget unit under § 97.4(a), is covered by an exemption under § 97.4(b) or § 97.5 that is in effect, or is not operating is not eligible to be a NO X Budget opt-in unit.
§ 97.81   General.
Except otherwise as provided in this part, a NO X Budget opt-in unit shall be treated as a NO X Budget unit for purposes of applying subparts A through H of this part.
§ 97.82   NOXauthorized account representative.
A unit for which an application for a NO X Budget opt-in permit is submitted, or a NO X Budget opt-in unit, located at the same source as one or more NO X Budget units, shall have the same NO X authorized account representative as such NO X Budget units.
§ 97.83   Applying for NOXBudget opt-in permit.
(a) Applying for initial NO X Budget opt-in permit. In order to apply for an initial NO X Budget opt-in permit, the NO X authorized account representative of a unit qualified under § 97.80 may submit to the Administrator and the permitting authority at any time, except as provided under § 97.86(g):
(1) A complete NO X Budget permit application under § 97.22;
(2) A monitoring plan submitted in accordance with subpart H of this part; and
(3) A complete account certificate of representation under § 97.13, if no NO X authorized account representative has been previously designated for the unit.
(b) Duty to reapply. Unless the NO X Budget opt-in permit is terminated or revised under § 97.86(e) or § 97.87(b)(1)(i), the NO X authorized account representative of a NO X Budget opt-in unit shall submit to the Administrator and permitting authority a complete NO X Budget permit application under § 97.22 to renew the NO X Budget opt-in permit in accordance with § 97.21(c) and, if applicable, an updated monitoring plan in accordance with subpart H of this part.
§ 97.84   Opt-in process.
The permitting authority will issue or deny an initial NO X Budget opt-in permit for a unit for which an application for a NO X Budget opt-in permit under § 97.83 is submitted, in accordance with § 97.20 and the following:
(a) Interim review of monitoring plan. The Administrator will determine, on an interim basis, the sufficiency of the monitoring plan accompanying the initial application for a NO X Budget opt-in permit under § 97.83. A monitoring plan is sufficient, for purposes of interim review, if the plan appears to contain information demonstrating that the NO X emissions rate and heat input rate of the unit are monitored and reported in accordance with subpart H of this part. A determination of sufficiency shall not be construed as acceptance or approval of the unit's monitoring plan.
(b) If the Administrator determines that the unit's monitoring plan is sufficient under paragraph (a) of this section and after completion of monitoring system certification under subpart H of this part, the NO X emissions rate and the heat input of the unit shall be monitored and reported in accordance with subpart H of this part for one full control period during which percent monitor data availability is not less than 90 percent and during which the unit is in full compliance with any applicable State or Federal emissions or emissions-related requirements. Solely for purposes of applying the requirements in the prior sentence, the unit shall be treated as a “NO X Budget unit” prior to issuance of a NO X Budget opt-in permit covering the unit.
(c) Based on the information monitored and reported under paragraph (b) of this section, the Administrator will calculate the unit's baseline heat input, which will equal the unit's total heat input (in mmBtu) for the control period, and the unit's baseline NO X emissions rate, which will equal the unit's total NO X mass emissions (in lb) for the control period divided by the unit's baseline heat input.
(d) Issuance of draft NO X Budget opt-in permit for public comment. The permitting authority will issue a draft NO X Budget opt-in permit for public comment in accordance with § 97.20.
(e) Not withstanding paragraphs (a) through (d) of this section, if at any time before issuance of a draft NO X Budget opt-in permit for public comment for the unit, the Administrator or the permitting authority determines that the unit does not qualify as a NO X Budget opt-in unit under § 97.80, the permitting authority will issue a draft denial of a NO X Budget opt-in permit for public comment for the unit in accordance with § 97.20.
(f) Withdrawal of application for NO X Budget opt-in permit. A NO X authorized account representative of a unit may withdraw its application for an initial NO X Budget opt-in permit under § 97.83 at any time prior to the issuance of the initial NO X Budget opt-in permit. Once the application for a NO X Budget opt-in permit is withdrawn, a NO X authorized account representative wanting to reapply must submit a new application for an initial NO X Budget permit under § 97.83.
(g) The unit shall be a NO X Budget opt-in unit and a NO X Budget unit starting May 1 of the first control period starting after the issuance of the initial NO X Budget opt-in permit by the permitting authority.
§ 97.85   NOXBudget opt-in permit contents.
(a) Each NO X Budget opt-in permit will contain all elements required for a complete NO X Budget opt-in permit application under § 97.22.
(b) Each NO X Budget opt-in permit is deemed to incorporate automatically the definitions of terms under § 97.2 and, upon recordation by the Administrator under subpart F or G of this part, every allocation, transfer, or deduction of NO X allowances to or from the compliance accounts of each NO X Budget opt-in unit covered by the NO X Budget opt-in permit or the overdraft account of the NO X Budget source where the NO X Budget opt-in unit is located.
§ 97.86   Withdrawal from NOXBudget Trading Program.
(a) Requesting withdrawal. To withdraw from the NO X Budget Trading Program, the NO X authorized account representative of a NO X Budget opt-in unit shall submit to the Administrator and the permitting authority a request to withdraw effective as of a specified date prior to May 1 or after September 30. The submission shall be made no later than 90 days prior to the requested effective date of withdrawal.
(b) Conditions for withdrawal. Before a NO X Budget opt-in unit covered by a request under paragraph (a) of this section may withdraw from the NO X Budget Trading Program and the NO X Budget opt-in permit may be terminated under paragraph (e) of this section, the following conditions must be met:
(1) For the control period immediately before the withdrawal is to be effective, the NO X authorized account representative must submit or must have submitted to the Administrator and the permitting authority an annual compliance certification report in accordance with § 97.30.
(2) If the NO X Budget opt-in unit has excess emissions for the control period immediately before the withdrawal is to be effective, the Administrator will deduct or has deducted from the NO X Budget opt-in unit's compliance account, or the overdraft account of the NO X Budget source where the NO X Budget opt-in unit is located, the full amount required under § 97.54(d) for the control period.
(3) After the requirements for withdrawal under paragraphs (b)(1) and (2) of this section are met, the Administrator will deduct from the NO X Budget opt-in unit's compliance account, or the overdraft account of the NO X Budget source where the NO X Budget opt-in unit is located, NO X allowances equal in number to and allocated for the same or a prior control period as any NO X allowances allocated to that source under § 97.88 for any control period for which the withdrawal is to be effective. The Administrator will close the NO X Budget opt-in unit's compliance account and transfer any remaining allowances to a general account specified by the owners and operators of the NO X Budget opt-in unit.
(c) A NO X Budget opt-in unit that withdraws from the NO X Budget Trading Program shall comply with all requirements under the NO X Budget Trading Program concerning all years for which such NO X Budget opt-in unit was a NO X Budget opt-in unit, even if such requirements arise or must be complied with after the withdrawal takes effect.
(d) Notification. (1) After the requirements for withdrawal under paragraphs (a) and (b) of this section are met (including deduction of the full amount of NO X allowances required), the Administrator will issue a notification to the permitting authority and the NO X authorized account representative of the NO X Budget opt-in unit of the acceptance of the withdrawal of the NO X Budget opt-in unit as of a specified effective date that is after such requirements have been met and that is prior to May 1 or after September 30.
(2) If the requirements for withdrawal under paragraphs (a) and (b) of this section are not met, the Administrator will issue a notification to the permitting authority and the NO X authorized account representative of the NO X Budget opt-in unit that the request to withdraw is denied. If the NO X Budget opt-in unit's request to withdraw is denied, the NO X Budget opt-in unit shall remain subject to the requirements for a NO X Budget opt-in unit.
(e) Permit revision. After the Administrator issues a notification under paragraph (d)(1) of this section that the requirements for withdrawal have been met, the permitting authority will revise the NO X Budget permit covering the NO X Budget opt-in unit to terminate the NO X Budget opt-in permit as of the effective date specified under paragraph (d)(1) of this section. A NO X Budget opt-in unit shall continue to be a NO X Budget opt-in unit until the effective date of the termination.
(f) Reapplication upon failure to meet conditions of withdrawal. If the Administrator denies the request to withdraw the NO X Budget opt-in unit, the NO X authorized account representative may submit another request to withdraw in accordance with paragraphs (a) and (b) of this section.
(g) Ability to return to the NO X Budget Trading Program. Once a NO X Budget opt-in unit withdraws from the NO X Budget Trading Program and its NO X Budget opt-in permit is terminated under paragraph (e) of this section, the NO X authorized account representative may not submit another application for a NO X Budget opt-in permit under § 97.83 for the unit prior to the date that is 4 years after the date on which the terminated NO X Budget opt-in permit became effective.
§ 97.87   Change in regulatory status.
(a) Notification. When a NO X Budget opt-in unit becomes a NO X Budget unit under § 97.4(a), the NO X authorized account representative shall notify in writing the permitting authority and the Administrator of such change in the NO X Budget opt-in unit's regulatory status, within 30 days of such change.
(b) Permitting authority's and Administrator's action. (1)(i) When the NO X Budget opt-in unit becomes a NO X Budget unit under § 97.4(a), the permitting authority will revise the NO X Budget opt-in unit's NO X Budget opt-in permit to meet the requirements of a NO X Budget permit under § 97.23 as of an effective date that is the date on which such NO X Budget opt-in unit becomes a NO X Budget unit under § 97.4(a).
(ii)(A) The Administrator will deduct from the compliance account for the NO X Budget unit under paragraph (b)(1)(i) of this section, or the overdraft account of the NO X Budget source where the unit is located, NO X allowances equal in number to and allocated for the same or a prior control period as:
( 1 ) Any NO X allowances allocated to the NO X Budget unit (as a NO X Budget opt-in unit) under § 97.88 for any control period after the last control period during which the unit's NO X Budget opt-in permit was effective; and
( 2 ) If the effective date of the NO X Budget permit revision under paragraph (b)(1)(i) of this section is during a control period, the NO X allowances allocated to the NO X Budget unit (as a NO X Budget opt-in unit) under § 97.88 for the control period multiplied by the number of days in the control period starting with the effective date of the permit revision under paragraph (b)(1)(i) of this section, divided by the total number of days in the control period, and rounded to the nearest whole number of NO X allowances as appropriate.
(B) The NO X authorized account representative shall ensure that the compliance account of the NO X Budget unit under paragraph (b)(1)(i) of this section, or the overdraft account of the NO X Budget source where the unit is located, contains the NO X allowances necessary for completion of the deduction under paragraph (b)(1)(ii)(A) of this section. If the compliance account or overdraft account does not contain the necessary NO X allowances, the Administrator will deduct the required number of NO X allowances, regardless of the control period for which they were allocated, whenever NO X allowances are recorded in either account.
(iii)(A) For every control period during which the NO X Budget permit revised under paragraph (b)(1)(i) of this section is in effect, the NO X Budget unit under paragraph (b)(1)(i) of this section will be treated, solely for purposes of NO X allowance allocations under § 97.42, as a unit that commenced operation on the effective date of the NO X Budget permit revision under paragraph (b)(1)(i) of this section and will be allocated NO X allowances under § 97.42. The unit's deadline under § 97.84(b) for meeting monitoring requirements in accordance with subpart H of this part shall not be changed by the change in the unit's regulatory status or by the revision of the NO X Budget permit under paragraph (b)(1)(i) of this section.
(B) Notwithstanding paragraph (b)(1)(iii)(A) of this section, if the effective date of the NO X Budget permit revision under paragraph (b)(1)(i) of this section is during a control period, the following number of NO X allowances will be allocated to the NO X Budget unit under paragraph (b)(1)(i) of this section under § 97.42 for the control period: the number of NO X allowances otherwise allocated to the NO X Budget unit under § 97.42 for the control period multiplied by the number of days in the control period starting with the effective date of the permit revision under paragraph (b)(1)(i) of this section, divided by the total number of days in the control period, and rounded to the nearest whole number of NO X allowances as appropriate.
(2)(i) When the NO X authorized account representative of a NO X Budget opt-in unit does not renew its NO X Budget opt-in permit under § 97.83(b), the Administrator will deduct from the NO X Budget opt-in unit's compliance account, or the overdraft account of the NO X Budget source where the NO X Budget opt-in unit is located, NO X allowances equal in number to and allocated for the same or a prior control period as any NO X allowances allocated to the NO X Budget opt-in unit under § 97.88 for any control period after the last control period for which the NO X Budget opt-in permit is effective. The NO X authorized account representative shall ensure that the NO X Budget opt-in unit's compliance account or the overdraft account of the NO X Budget source where the NO X Budget opt-in unit is located contains the NO X allowances necessary for completion of such deduction. If the compliance account or overdraft account does not contain the necessary NO X allowances, the Administrator will deduct the required number of NO X allowances, regardless of the control period for which they were allocated, whenever NO X allowances are recorded in either account.
(ii) After the deduction under paragraph (b)(2)(i) of this section is completed, the Administrator will close the NO X Budget opt-in unit's compliance account. If any NO X allowances remain in the compliance account after completion of such deduction and any deduction under § 97.54, the Administrator will close the NO X Budget opt-in unit's compliance account and transfer any remaining allowances to a general account specified by the owners and operators of the NO X Budget opt-in unit.
§ 97.88   NOXallowance allocations to opt-in units.
(a) NO X allotment allocation. (1) By April 1 immediately before the first control period for which the NO X Budget opt-in permit is effective, the Administrator will determine by order the NO X allowance allocations for the NO X Budget opt-in unit for the control period in accordance with paragraph (b) of this section.
(2) By no later than April 1, after the first control period for which the NO X Budget opt-in permit is in effect, and April 1 of each year thereafter, the Administrator will determine by order the NO X allowance allocations for the NO X Budget opt-in unit for the next control period, in accordance with paragraph (b) of this section.
(3) The Administrator will make available to the public each determination of NO X allowance allocations under paragraph (a)(1) or (2) of this section and will provide an opportunity for submission of objections to the determination. Objections shall be limited to addressing whether the determination is in accordance with paragraph (b) of this section. Based on any such objections, the Administrator will adjust each determination to the extent necessary to ensure that it is in accordance with paragraph (b) of this section.
(b) For each control period for which the NO X Budget opt-in unit has an approved NO X Budget opt-in permit, the NO X Budget opt-in unit will be allocated NO X allowances in accordance with the following procedures:
(1) The heat input (in mmBtu) used for calculating NO X allowance allocations will be the lesser of:
(i) The unit's baseline heat input determined pursuant to § 97.84(c); or
(ii) The unit's heat input, as determined in accordance with subpart H of this part, for the control period in the year prior to the year of the control period for which the NO X allocations are being calculated.
(2) The Administrator will allocate NO X allowances to the unit in an amount equaling the heat input determined under paragraph (b)(1) of this section multiplied by the lesser of the unit's baseline NO X emissions rate determined under § 97.84(c) or the most stringent State or federal NO X emissions limitation applicable to the unit during the control period, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO X allowances as appropriate.
§ 97.90   Appeal procedures.
The appeal procedures for the NO X Budget Trading Program are set forth in part 78 of this chapter.
§ 97.101   Purpose.
This subpart and subparts BB through II set forth the general provisions and the designated representative, permitting, allowance, monitoring, and opt-in provisions for the Federal Clean Air Interstate Rule (CAIR) NO X Annual Trading Program, under section 110 of the Clean Air Act and § 52.35 of this chapter, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.