1

QUESTIONNAIRE

(Please include a copy of this form with each filing of your rule: Notice of Public Hearing or Comment Period; Proposed

Rule, and if needed, Emergency and Modified Rule.) 

DATE: 

TO: LEGISLATIVE RULE-MAKING REVIEW COMMITTEE 

FROM:(Agency Name, Address & Phone No.) 

LEGISLATIVE RULE TITLE: 

1. Authorizing statute(s) citation 

2. a. Date filed in State Register with Notice of Hearing or Public Comment Period:

b. What other notice, including advertising, did you give of the hearing?

c. Date of Public Hearing(s) or Public Comment Period ended:

d. Attach list of persons who appeared at hearing, comments received, amendments, reasons

for amendments.

Attached No comments received 
2

e. Date you filed in State Register the agency approved proposed Legislative Rule following

public hearing: (be exact)

f. Name, title, address and phone/fax/e-mail numbers of agency person(s) to receive

all written correspondence regarding this rule: (Please type)

g. IF DIFFERENT FROM ITEM ‘f’, please give Name, title, address and phone

number(s) of agency person(s) who wrote and/or has responsibility for the contents of this

rule: (Please type)

3. If the statute under which you promulgated the submitted rules requires certain findings and

determinations to be made as a condition precedent to their promulgation:

a. Give the date upon which you filed in the State Register a notice of the time and place

of a hearing for the taking of evidence and a general description of the issues to be

decided.
3

b. Date of hearing or comment period:

c. On what date did you file in the State Register the findings and determinations required

together with the reasons therefor?

d. Attach findings and determinations and reasons:

Attached 
West Virginia Department of Environmental Protection 

ADVISORY COUNCIL MEETING MINUTES 

Tuesday, June 24, 2008 

601 57th Street, SE, Charleston, WV 

West Virginia Room – 3rd Floor 

IN ATTENDANCE: 

Members of the Council: 

 

Jackie Hallinan 

Karen Price 

Bill Raney 

Rick Roberts 

DEP: 

Randy Huffman Cabinet Secretary 

Lisa McClung Deputy Cabinet Secretary and Director, 

 Division of Water and Waste Management 

Raymond Franks II General Counsel 

Karen Watson Associate General Counsel 

Kathy Cosco Communications Director 

Pam Nixon Environmental Advocate 

Ken Politan Mining & Reclamation 

Lewis Halstead Mining & Reclamation 

Charlie Sturey Mining & Reclamation 

Carroll Cather Water & Waste Management 

Don Martin Land Restoration 

Brian Long Water & Waste Management 

Dan Arnold Water & Waste Management 

Mike Zeto Environmental Enforcement 

Terrie Sangid Water & Waste Management 

Jim Mason Air Quality 

Mike Johnson Water & Waste Management 

Kathy Emery Water & Waste Management 

Scott Mandirola Water & Waste Management 

Visitors: 

Tom Boggs Chamber of Commerce 

Don Garvin WV Environmental Council 

Ruth Lemmon WV Auto/Truck Dealers Association 

OLD BUSINESS: 
2

Secretary Huffman called the meeting to order at 1:35 p.m., and he announced that Members Lisa 

Dooley and Larry Harris would not be attending. On motion made by Mr. Raney and seconded by 

Ms. Hallinan, the Council approved the minutes from the March 18, 2008 meeting. Secretary 

Huffman then ceded the floor to Mr. Franks.

NEW BUSINESS: 

Mr. Franks noted that for the 2009 regular legislative session, DEP was proposing changes to 20 

rules, grouped by Division for presentation to the Council. Depending on who had shepherded the 

rule through its initial drafting, either Mr. Franks or Ms. Watson would lead the discussion, with 

program administrators available to assist in answering the Council’s questions. 

Ms. Watson presented 60 CSR 3, the “Brownfields” Rule. Ms. Watson explained that the Rule was 

currently pending before the Secretary of State for authorization as an emergency rule, and that the 

proposed changes included adjustments to the “de minimis” table and enhancing DEP’s flexibility in 

obtaining risk assessments. 

Ms. Price referred to a letter recently sent to DEP seeking clarification of the Rule’s provisions 

concerning land use covenants and long-term maintenance agreements. Secretary Huffman stated 

that the letter would be retrieved and the issue noted for further consideration by the agency. 

 

Mr. Raney inquired whether the Council could recommend changes to the rules as presented. Ms. 

Watson responded in the affirmative. Mr. Raney then asked whether written comments, such as 

those submitted by Mr. Harris prior to the meeting, would be appended to the minutes. Mr. Franks 

responded in the negative, and Ms. Watson expounded that Mr. Harris’s comments would be 

summarized and addressed orally during the discussion of the particular rules involved. 

Mr. Franks then presented 38 CSR 2, the Surface Mining Reclamation Rule. Mr. Franks explained 

that the proposed changes would expand the Secretary’s oversight of “approved persons” authorized 

to render technical certifications contained within mining permit applications, and would clarify 

certain collateral activities as being within the scope of requests for incidental boundary revisions to 

existing permits. Mr. Franks also noted that the proposed Rule would set forth more relevant and 

exacting criteria for the Secretary to consider in evaluating applications for revisions. 

Mr. Raney inquired generally about the provisions with respect to approved persons. Secretary 

Huffman replied that the increased oversight is necessary to improve the initial quality of the permit 

applications, such that the delays occasioned by subsequent corrections would be reduced or 

eliminated. Mr. Raney asked whether approved persons could include anyone other than engineers, 

and Mr. Halstead responded that the definition extended to surveyors and geologists. Mr. Raney 

noted the need to establish a procedure for suspension or revocation to limit the agency’s unfettered 

discretion, to which Secretary Huffman and Mr. Franks replied that the Rule provided for notice and 

hearing prior to curtailing the privileges of anyone on the approved-person list. 
3

Ms. Watson presented 47 CSR 30, establishing NPDES requirements for coal mining facilities. Ms. 

Watson explained that the proposed changes were relatively minor, designed to enhance consistency 

with the non-coal rule, to allow for digital signatures, and to permit correction of clerical errors. 

The Council then considered the Air Quality rules. Mr. Franks presented 45 CSR 1 and 45 CSR 26, 

relating to control and reduction of nitrogen oxides from, respectively, non-electric and electric 

generating units, the latter by means of a budget trading program. The rules are to be repealed in 

their entireties, and Mr. Mason explained that both are being subsumed within the Clean Air 

Interstate Rule program. 

Mr. Franks then presented 45 CSR 8, the Ambient Air Quality Rule. Mr. Franks explained that the 

1-hour primary and secondary ozone standards were being replaced with 8-hour standards, with the 

maximum tolerance being reduced slightly. Mr. Raney inquired as to the practical effect of the 

proposed change, particularly with regard to whether non-compliance areas within the State might 

be expanded. Mr. Mason replied that an expansion might occur, but that it was difficult to predict at 

this early stage. Mr. Mason added that the time-period increase would inevitably lead to more 

accurate measurements. 

Ms. Watson presented 45 CSR 13, governing permits for constructing and modifying non-major 

stationary sources of air pollutants. Ms. Watson explained that the Rule was being amended to 

reflect the recent statutory changes reducing the lag time for issuing permits and authorizing certain 

pre-permit construction. It was noted that Mr. Harris had submitted in writing his concern that 

courts would be loath to enforce agency cease-and-desist orders based on defects discovered during 

the permitting process after construction had already begun. Ms. Watson pointed out that the statute 

had been carefully crafted to avoid facile invocation of detrimental reliance, with Mr. Franks 

observing that the Rule strove to conform to the statute. Ms. Price wondered whether one or more of 

the timeframe provisions included within the existing Rule had been inadvertently omitted from the 

proposed version. Ms. Watson responded that the Rule had been carefully checked for 

completeness, but that she would once again verify the language to assure its accuracy. 

Mr. Franks presented 45 CSR 14, governing permits for constructing and significantly modifying 

major stationary sources of air pollutants. Mr. Franks explained that references to pollution control 

projects and clean units were deleted in accordance with a federal appellate court decision vacating 

those provisions. 

Mr. Franks went on to present 45 CSR 16, 45 CSR 25, and 45 CSR 34, relating respectively to 

performance standards for new stationary sources, pollution from hazardous waste treatment, 

storage, and disposal facilities, and emission standards for hazardous air pollutants. Mr. Mason 

noted that the changes incorporate revisions to the Rules’ federal counterparts, except that some of 

the new standards were not incorporated within 45 CSR 34, because they constituted unfunded 

mandates. Mr. Garvin was recognized, and he asked whether the failure to incorporate equated to a 

lack of regulation. Mr. Mason responded in the negative, explaining that the monitoring and 

regulation would be performed by the federal government. Mr. Garvin inquired as to the affected 

industries, and Mr. Mason referred to a list including smaller gas facilities and paint-stripping shops. 
4

Ms. Watson presented 45 CSR 37, detailing the budget trading program to reduce mercury 

emissions. Ms. Watson explained that the rule is being repealed as inconsistent with a federal 

appellate court decision, pending alternative action by the EPA. Mr. Garvin inquired whether the 

Rule repealed two years ago would be reinstated upon revocation of the current version, to which 

Ms. Watson and Mr. Franks replied that it would not, if there had indeed been a previous rule in 

place, which was somewhat in question. Mr. Mason explained that mercury emissions would be 

monitored and regulated as usual, except that budget trading would not be available as a method of 

reduction. He also stated that there have been discussions on a national level as to whether to 

reinstate the federal mercury monitoring requirements. 

The Council then turned its attention to the Water and Waste Management Rules. Ms. Watson 

presented 33 CSR 20, governing hazardous waste management systems. Ms. Watson explained that 

the Rule incorporated by reference its federal counterpart, the most salient change to which is its 

attempt to reduce disposal by permitting facilities to stage hazardous waste for three days pending 

recycling. Mr. Raney asked whether three days was sufficient time, and Mr. Cather responded in the 

affirmative. 

Mr. Franks presented 33 CSR 24, the Hazardous Waste Management Fee Rule. Mr. Franks 

explained that increases to the fee assessments are necessary to sustain the underlying Fund by 

ensuring sufficient matching revenue for federal grants. Ms. Price indicated her belief that, as part 

of the legislative compromise extending the fee’s duration, no increases would be forthcoming until 

completion and review of the Fund’s legislative audit. Secretary Huffman responded that the 

preliminary audit findings in no way indicate any misallocation within the Fund or contravene the 

agency’s determination that fee increases are necessary. Ms. Lemmon was recognized, and she 

commented that the proposed increase was unfair to automobile and truck dealers, as well as other 

small generators. Ms. Lemmon suggested that a study be done to identify the industries causing 

DEP to incur program costs, with fee assessments to be made proportionately. 

Ms. Watson presented 33 CSR 22 and 47 CSR 56, governing the assessment of civil administrative 

penalties for, respectively, hazardous and solid waste violations and violations relating to 

groundwater. Ms. Watson explained that the Rules were being modified for the first time since their 

initial promulgation, with the purpose of clarifying their application by listing additional factors to 

be considered in calculating penalties, providing ratings examples, and expanding facility categories. 

Ms. Watson then presented 47 CSR 31, addressing the State Water Pollution Control Revolving 

Fund. Ms. Watson explained that the proposed changes include the creation of a state review 

process for sewer projects in lieu of a wholesale adoption of the federal requirements. Mr. Roberts 

observed that many of the eligibility criteria would be deleted, but Ms. Emery assured the Council 

that inasmuch as the criteria were not being uniformly met, the deletion would have no practical 

effect on the Fund’s administration. Ms. Watson advised Mr. Roberts that if he continued to have 

concerns upon further review, he should submit written suggestions for changes during the formal 

comment period. 

Mr. Franks presented 47 CSR 32, governing the certification of laboratories conducting analyses of 

waste and wastewater. Mr. Franks explained that the proposed changes are designed to modernize 
5

outdated procedures and protocols that have remained constant since 1995, and to increase program 

funding through increased certification fees and a new application fee. Mr. Raney asked whether the 

new fees would render the program self-sustaining, and Mr. Arnold replied that it would for the 

time-being. In response to further inquiry, Mr. Arnold stated that DEP conducts annual, on-site 

audits of commercial and industrial labs, with municipal labs typically audited every two years, 

depending on the experience of the support personnel. 

Ms. Watson presented 47 CSR 34, the Dam Safety Rule. Ms. Watson explained that the Rule is 

being extensively augmented to govern disbursement and use of a new Revolving Fund to finance 

repair and rehabilitation of deficient dams. Secretary Huffman commented that it appeared 

imminent that the Legislature would approve a transfer of $350,000 from excess general revenue as 

seed money for the Fund. 

Lastly, Ms. Watson presented 47 CSR 2, the Water Quality Standards Rule. Ms. Watson explained 

that the proposed revisions are designed to clarify the definition of Category A use, while providing 

specific standards to be applied in the permitting process to determine in a more streamlined fashion 

whether the use is unsuitable in cases of insufficient flow and hydrologic modification. Mr. Raney 

commented that the Category A determination process has always been a significant problem for the 

coal industry. Ms. Price also agreed for her members. Mr. Garvin noted that the environmental 

community had expressed some initial concern regarding the proposed streamlining mechanisms, but 

that there was some general support for taking the matter out of the legislative arena. Mr. Huffman 

affirmed that the revisions are designed solely for the benefit of the regulated public and that the 

revisions must include the clarification that Category A applies statewide. 

Ms. Watson reported that the rules will proceed to be filed with the Secretary of State, some perhaps 

as early as the week following the Council meeting, and that some will have an extended 45-day 

comment period. 

Mr. Franks requested closing comments from Council members and from the public. Following the 

cessation of discussion, Mr. Franks reminded the Council that the next meeting is scheduled for 1:30 

p.m. on September 9, 2008. 

Secretary Huffman declared the meeting adjourned at 3:25 p.m. 
45CSR26

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TITLE 45

LEGISLATIVE RULE

DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF AIR QUALITY

SERIES 26

NOX BUDGET TRADING PROGRAM AS A MEANS OF CONTROL AND

REDUCTION OF NITROGEN OXIDES FROM ELECTRIC GENERATING UNITS

§45-26-1. General.

1.1. Scope. -- This rule establishes general

provisions and the definitions, applicability,

permitting, allowance, excess emissions and

monitoring provisions for the NOX Budget

Trading Program for state implementation plans as

a means of control and reduction of nitrogen

oxides (NOX), an ozone precursor. The Secretary

of the Department of Environmental Protection

authorizes the Administrator of the U.S.

Environmental Protection Agency to assist the

Secretary in implementing the NOX Budget

Trading Program by carrying out the functions set

forth for the Administrator in the requirements of

sections 4 through 76 and 40 CFR Part 51. This

rule follows the intent of 40 CFR Part 96 for

electric generating units. NOX Budget Trading

Program requirements for non-electric generating

units are set forth in 45CSR1.

1.2. The owner or operator of a fossil fuelfired electric generating unit shall comply with

applicable requirements of this rule.

1.3. Numbering and Text Breakdown. -- This

rule generally meets the numbering, indentation

and text breakdown requirements set forth in

153CSR6. However, its numbering structure

intentionally follows the numbering structure of

federal counterpart rule 40 CFR Part 96, resulting

in several minor areas of nonconformity with

153CSR6.

1.4. Authority. -- W.Va. Code §22-5-1 et

seq.

1.5. Filing Date. -- April 21, 2003.

1.6. Effective Date. -- June 1, 2003.

§45-26-2. Definitions.

2.1 “Account certificate of representation”

means the completed and signed submission

required by sections 10 through 14 for certifying

the designation of a NOX authorized account

representative for a NOX Budget source or a group

of identified NOX Budget sources who is

authorized to represent the owners and operators

of such source or sources and of the NOX Budget

units at such source or sources with regard to

matters under the NOX Budget Trading Program.

2.2. “Account number” means the

identification number given by the Administrator

to each NOX Allowance Tracking System account.

2.3. “Acid Rain emissions limitation” means,

as defined in 40 CFR §72.2, a limitation on

emissions of sulfur dioxide or nitrogen oxides

under the Acid Rain Program under title IV of the

CAA.

2.4. “Admi n i st rat o r” means the

Administrator of the United States Environmental

Protection Agency or the Administrator’s duly

authorized representative.

2.5. “Allocate” or “allocation” means the

determination by the Secretary or the

Administrator of the number of NOX allowances to

be initially credited to a NOX Budget unit or an

allocation set-aside.

2.6. “Automated data acquisition and

handling system” or “DAHS” means that

component of the CEMS or other emissions

monitoring system approved for use under

sections 70 through 76, designed to interpret and
45CSR26

2

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 sections 70 through 76.

2.7. “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.

2.8. “CAA” means the Clean Air Act, 42

U.S.C. 7401, et seq., as amended by Pub. L. No.

101-549 (November 15, 1990).

2.9. “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.

2.10. “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.

2.11. “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 subdivision 4.2.a or section 5, for a

unit that is a NOX Budget unit under subsection

4.1 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 subdivision

4.2.a or section 5, for a unit that is not a NOX

Budget unit under subsection 4.1 on the date the

unit commences commercial operation, the date

the unit becomes a NOX Budget unit under

subsection 4.1 shall be the unit’s date of

commencement of commercial operation.

2.12. “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 subdivision 4.2.a or section 5, for a

unit that is a NOX Budget unit under subsection

4.1 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 subdivision

4.2.a or section 5, for a unit that is not a NOX

Budget unit under subsection 4.1 on the date of

commencement of operation, the date the unit

becomes a NOX Budget unit under subsection 4.1

shall be the unit’s date of commencement of

operation.

2.13. “Common stack” means a single flue

through which emissions from two or more units

are exhausted.

2.14. “Compliance account” means a NOX

Allowance Tracking System account, established

by the Administrator for a NOX Budget unit under

sections 50 through 57, in which the NOX

allowance allocations for the unit are initially

recorded and in which are held NOX allowances

available for use by the unit for an ozone season

for the purpose of meeting the unit’s NOX budget

emissions limitation.

2.15. “Compliance certification” means a

submission to the Secretary or the Administrator,

as appropriate, that is required under sections 30

and 31 to report a NOX Budget source’s or a NOX

Budget unit's compliance or noncompliance with

sections 30 and 31 and that is signed by the NOX

authorized account representative in accordance

with sections 10 through 14.

2.16. “Continuous emission monitoring

system” or “CEMS” means the equipment

required under sections 70 through 76 to sample,

analyze, measure and provide, by readings taken

at least once every 15 minutes of the measured

parameters, a permanent record of nitrogen oxides

emissions, expressed in pounds per hour for

nitrogen oxides. The following systems are

component parts included, to the extent consistent

with sections 70 through 76 and 40 CFR Part 75,

in a continuous emission monitoring system:
45CSR26

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2.16.a. Flow monitor;

2.16.b. NOX pollutant concentration

monitors; 

2.16.c. Diluent gas monitor (oxygen or

carbon dioxide);

2.16.d. A continuous moisture monitor;

and

2.16.e. An automated data acquisition

and handling system.

2.17. “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.

2.18. “Emissions” means air pollutants

exhausted from a unit or source into the

atmosphere, as measured, recorded and reported to

the Secretary or Administrator by the NOX

authorized account representative and as

determined by the Administrator in accordance

with sections 70 through 76.

2.19. “Energy Information Administration”

means the Energy Information Administration of

the United States Department of Energy.

2.20. “Excess emissions” means any tonnage

of nitrogen oxides emitted by a NOX Budget unit

during an ozone season that exceeds the NOX

budget emissions limitation for the unit.

2.21. “Fossil fuel” means natural gas,

petroleum, coal or any form of solid, liquid or

gaseous fuel derived from such material.

2.22. “Fossil fuel-fired” means, with regard to

a unit:

2.22.a. 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;

2.22.b. 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

2.22.c. For units that commence

operation on or after January 1, 1997: 

2.22.c.1. 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 any year; or

2.22.c.2. The combustion 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.

2.23. “General account” means a NOX

Allowance Tracking System account, established

under sections 50 through 57, that is not a

compliance account or an overdraft account.

2.24. “Generator” means a device that

produces electricity.

2.25. “Heat input” means, with regard to a

specified period to time, the product (in

mmBtu/time) of the gross calorific value of the

fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu

and multiplied by the fuel feed rate into a

combustion device (in lb of fuel/time), as

measured, recorded, and reported to the

Administrator by the NOX authorized account

representative and as determined by the

Administrator in accordance with sections 70

through 76. Heat input does not include the heat

derived from preheated combustion air,

recirculated flue gases, or exhaust from other

sources.
45CSR26

4

2.26. “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.

2.27. “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:

2.27.a. For the life of the unit;

2.27.b. For a cumulative term of no less

than 30 years, including contracts that permit an

election for early termination; or

2.27.c. 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.

2.28. “Maximum design heat input” means the

ability of a unit to combust a stated maximum

amount of fuel per hour on a steady state basis, as

determined by the physical design and physical

characteristics of the unit.

2.29. “Maximum potential hourly heat input”

means an hourly heat input used for reporting

purposes when a unit lacks certified monitors to

report heat input. If the unit intends to use

Appendix D of 40 CFR Part 75 to report heat

input, this value shall be calculated in accordance

with 40 CFR Part 75, 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 40 CFR Part 75, using the

maximum potential flowrate and either the

maximum carbon dioxide concentration (in

percent CO2) or the minimum oxygen

concentration (in percent O2).

2.30. “Maximum potential NOX emission rate”

means the emission rate of nitrogen oxides (in

lb/mmBtu) calculated in accordance with section

3 of Appendix F of 40 CFR Part 75, using the

maximum potential concentration of NOX under

section 2 of Appendix A of 40 CFR Part 75 and

either the maximum oxygen concentration (in

percent O2) or the minimum carbon dioxide

concentration (in percent CO2), under all operating

conditions of the unit except for unit startup,

shutdown and upsets.

2.31. “Maximum rated hourly heat input”

means a unit-specific maximum hourly heat input

(mmBtu) which is the higher of the manufacturer’s

maximum rated hourly heat input or the highest

observed hourly heat input.

2.32. “Monitoring system” means any

monitoring system that meets the requirements of

sections 70 through 76, including a continuous

emissions monitoring system, an excepted

monitoring system or an alternative monitoring

system.

2.33. “Most stringent state or federal NOX

emissions limitation” means the lowest NOX

emissions limitation (in terms of lb/mmBtu) that is

applicable to the unit under state or federal law,

regardless of the averaging period to which the

emissions limitation applies.

2.34. “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.

2.35. “Non-title V permit” means a federally

enforceable permit administered by the Secretary

pursuant to the CAA and regulatory authority

under the CAA, other than title V of the CAA and

40 CFR Part 70 or 40 CFR Part 71.

2.36. “NOX allowance” means a limited

authorization under the NOX Budget Trading

Program to emit up to one ton of nitrogen oxides
45CSR26

5

during the ozone season of the specified year or of

any year thereafter, except as provided under

subsection 54.6. No provision of the NOX Budget

Trading Program, the NOX budget permit

application, the NOX budget permit, or an

exemption under subdivision 4.2.a or section 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 rule, except sections 41, 42 or 43, “NOX

allowance” also includes an authorization to emit

up to one ton of nitrogen oxides during the ozone

season of the specified year or of any year

thereafter by the Secretary or Administrator in

accordance with a the NOX Budget Trading

Program for state implementation plans

established, and approved and administered by the

Administrator pursuant to 40 CFR §51.121.

2.37. “NOX allowance deduction” or “deduct

NOX allowances” means the permanent

withdrawal of NOX allowances by the

Administrator from a NOX Allowance Tracking

System compliance account or overdraft account

to account for the number of tons of NOX

emissions from a NOX Budget unit for an ozone

season, determined in accordance with sections 70

through 76 and sections 50 through 57 or for any

other NOX allowance withdrawal requirement

under this rule.

2.38. “NOX allowances held” or “hold NOX

allowances” means the NOX allowances recorded

by the Administrator or submitted to the

Administrator for recordation, in accordance with

sections 50 through 57 and sections 60 through 62,

in a NOX Allowance Tracking System account.

2.39. “NOX Allowance Tracking System”

means the system by which the Administrator

records allocations, deductions and transfers of

NOX allowances under the NOX Budget Trading

Program.

2.40. “NOX Allowance Tracking System

account” means an account in the NOX Allowance

Tracking System established by the Administrator

for purposes of recording the allocation, holding,

transferring or deducting of NOX allowances.

2.41. “NOX allowance transfer deadline”

means midnight of November 30 or, if November

30 is not a business day, midnight of the first

business day thereafter and is the deadline by

which NOX allowances must be submitted for

recordation in a NOX Budget unit’s compliance

account or the overdraft account of the source

where the unit is located, in order to meet the

unit’s NOX budget emissions limitation for the

ozone season immediately preceding such

deadline.

2.42. “NOX authorized account representative”

means, for a NOX budget source or NOX Budget

unit at the source, the natural person who is

authorized by the owners and operators of the

source and all NOX Budget units at the source, in

accordance with sections 10 through 14, to

represent and legally bind each owner and

operator in matters pertaining to the NOX Budget

Trading Program or, for a general account, the

natural person who is authorized, in accordance

with sections 50 through 57, to transfer or

otherwise dispose of NOX allowances held in the

general account.

2.43. “NOX budget emissions limitation”

means, for a NOX Budget unit, the tonnage

equivalent of the NOX allowances available for

compliance deduction for the unit under

subsections 54.1, 54.2, 54.5 and 54.6 in an ozone

season adjusted by any deductions of such NOX

allowances to account for actual heat input under

subdivision 42.5.a for the ozone season or to

account for excess emissions for a prior ozone

season under subsection 54.4.

2.44. “NOX budget permit” means the legally

binding and federally enforceable written

document or portion of such document, issued by

the Secretary, including any permit revisions,

specifying the NOX Budget Trading Program

requirements applicable to a NOX budget source,

to each NOX Budget unit at the NOX budget source

and to the owners and operators and the NOX

authorized account representative of the NOX

budget source and each NOX Budget unit.

2.45. “NOX budget source” means a source

that includes one or more NOX Budget units.
45CSR26

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2.46. “NOX Budget Trading Program” means

a multi-state nitrogen oxides air pollution control

and emission reduction program approved and

administered by the Administrator pursuant to 40

CFR §51.121, as a means of mitigating the

interstate transport of ozone and nitrogen oxides,

an ozone precursor.

2.47. “NOX Budget unit” means a unit that is

subject to the NOX Budget emissions limitation

under subsection 4.1.

2.48. “Operator” means any person who

operates, controls or supervises a NOX Budget unit

or a NOX budget source and shall include, but not

be limited to, any holding company, utility system

or plant manager of such a unit or source.

2.49. “Overdraft account” means the NOX

Allowance Tracking System account, established

by the Administrator under sections 50 through 57

for each NOX budget source where there are two

or more NOX Budget units.

2.50. “Owner” means any of the following

persons:

2.50.a. Any holder of any portion of the

legal or equitable title in a NOX Budget unit; or

2.50.b. Any holder of a leasehold interest

in a NOX Budget unit; or

2.50.c. Any purchaser of power from a

NOX Budget unit under a life-of-the-unit, firm

power contractual arrangement. However, unless

expressly provided for in a leasehold agreement,

owner shall not include a passive lessor or a

person who has an equitable interest through such

lessor, whose rental payments are not based, either

directly or indirectly, upon the revenues or income

from the NOX Budget unit; or

2.50.d. With respect to any general

account, any person who has an ownership interest

with respect to the NOX allowances held in the

general account and who is subject to the binding

agreement for the NOX authorized account

representative to represent that person’s ownership

interest with respect to the NOX allowances.

2.51. “Ozone season” means the period

beginning May 1 of a year and ending on

September 30 of the same year, inclusive,

provided that in 2004 “ozone season” means the

period beginning May 31 and ending September

30 of that year, inclusive.

2.52. “Percent monitor data availability”

means, for purposes of subdivision 43.1.a and

subsection 84.2, total unit operating hours for

which quality-assured data were recorded under

sections 70 through 76 in an ozone season, divided

by the total number of unit operating hours in the

ozone season and multiplied by 100 percent.

2.53. “Person” means any and all persons,

natural or artificial, including the state of West

Virginia or any other state, the United States of

America, any municipal, statutory, public or

private corporation organized or existing under the

laws of this or any other state or country and any

firm, partnership or association of whatever

nature.

2.54. “Potential electrical output capacity”

means 33 percent of a unit’s maximum design heat

input.

2.55. “Receive or receipt of” means, when

referring to the Secretary 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 Secretary or the

Administrator in the regular course of business.

2.56. “Recordation, record or recorded”

means, with regard to NOX allowances, the

movement of NOX allowances by the

Administrator from one NOX Allowance Tracking

System account to another, for purposes of

allocation, transfer or deduction.

2.57. “Reference method” means any direct

test method of sampling and analyzing for an air

pollutant as specified in Appendix A of 40 CFR

Part 60.
45CSR26

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2.58. “Secretary” means the Secretary of the

Department of Environmental Protection or such

other person to whom the Secretary has delegated

authority or duties pursuant to W.Va. Code §§22-

1-6 or 22-1-8.

2.59. “Serial number” means, when referring

to NOX allowances, the unique identification

number assigned to each NOX allowance by the

Administrator under subsection 53.3.

2.60. “Shutdown” means: the period of time a

unit is cooled from its normal operating

temperature to cold or ambient temperature.

2.61. “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 CAA. For purposes of section 502(c) of

the CAA, a “source,” including a “source” with

multiple units, shall be considered a single

“facility.”

2.62. “Startup” means: the period of time a

unit is heated from cold or ambient temperature to

its normal operating temperature as specified by

the manufacturer.

2.63. “State” means one of the 48 contiguous

states or a portion thereof or the District of

Columbia that is specified in 40 CFR §51.121 and

in which are located units that are subject to the

NOX Budget Trading Program. The term “state”

shall have its conventional meaning where such

meaning is clear from the context.

2.64. “Submit or serve” means to send or

transmit a document, information or

correspondence to the person specified:

2.64.a. In person;

2.64.b. By United States Postal Service;

or

2.64.c. 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.

2.65. “Title V operating permit” means a

permit issued under 45CSR30.

2.66. “Title V operating permit regulations”

means the regulations that the Secretary has issued

and the Administrator has approved as meeting the

requirements of 45CSR30.

2.67. “Ton” or “tonnage” means any “short

ton” (i.e., 2,000 pounds). For the purpose of

determining compliance with the NOX budget

emissions limitation, total tons for an ozone

season shall be calculated as the sum of all

recorded hourly emissions (or the tonnage

equivalent of the recorded hourly emissions rates)

in accordance with sections 70 through 76, 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.

2.68. “Unit” means a fossil fuel-fired

stationary boiler, combustion turbine or combined

cycle system.

2.69. “Unit operating day” means a calendar

day in which a unit combusts any fuel.

2.70. “Unit operating hour” or “hour of unit

operation” means any hour (or fraction of an hour)

during which a unit combusts any fuel.

2.71. Other words and phrases used in this

rule, unless otherwise indicated, shall have the

meaning ascribed to them in W.Va. Code §22-5-1

et seq. and 40 CFR §72.2.

§45-26-3. Measurements, Abbreviations and

Acronyms.

Measurements, abbreviations and acronyms used

in this rule are defined as follows:

Btu -- British thermal unit

hr -- hour

kW -- kilowatt electrical
45CSR26

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kWh -- kilowatt hour

lb -- pounds

mmBtu -- million Btu

MWe -- megawatt electrical

ton -- 2000 pounds

TPH -- tons per hour

CO2 -- carbon dioxide

NOX -- nitrogen oxides

O2 -- oxygen.

§45-26-4. NOX Budget Trading Program

Applicability.

4.1. The following units in West Virginia

shall be designated NOX Budget units, and any

source that includes one or more such units shall

be a NOX budget source, subject to the

requirements of this rule:

4.1.a. For units that commenced operation

before January 1, 1997, a unit which served during

1995 or 1996 a generator that had a nameplate

capacity greater than 25 MWe and produced

electricity for sale under a firm contract to the

electric grid;

4.1.b. For units that commenced operation

on or after January 1, 1997 and before January 1,

1999, a unit which served during 1997 or 1998 a

generator that had a nameplate capacity greater

than 25 MWe and produced electricity for sale

under a firm contract to the electric grid; and

4.1.c. For units that commence operation

on or after January 1, 1999, a unit serving at any

time a generator that has a nameplate capacity

greater than 25 MWe and produces electricity for

sale.

4.2.a. Notwithstanding subsection 4.1, a

unit under subdivisions 4.1.a, 4.1.b or 4.1.c that

has a federally enforceable permit that restricts the

unit to combusting only natural gas or fuel oil (as

defined in 40 CFR §72.2) during an ozone season

and which includes a NOX emission limitation

restricting NOX emissions during an ozone season

to 25 tons or less and includes the special

provisions in subdivision 4.2.d shall be exempt

from the requirements of the NOX Budget Trading

Program, except for the provisions of this

subdivision, sections 2 and 3; subsection 4.1;

section 7, sections 40 through 42, sections 50

through 57 and sections 60 through 62. The NOX

emission limitation under this subdivision shall

restrict NOX emissions during the ozone season by

limiting unit operating hours. The restriction on

unit operating hours shall be calculated by

dividing 25 tons by the unit’s maximum potential

hourly NOX mass emissions, which shall equal the

unit’s maximum rated hourly heat input multiplied

by the highest default NOX emission rate

otherwise applicable to the unit under 40 CFR

§75.19.

4.2.b. The exemption under subdivision

4.2.a shall become effective as follows:

4.2.b.1. The exemption shall become

effective on the date on which the NOX emission

limitation and the special provisions in the permit

under subdivision 4.2.a become final; or

4.2.b.2. If the NOX emission limitation

and the special provisions in the permit under

subdivision 4.2.a become final during an ozone

season and after the first date on which the unit

operates during such ozone season, then the

exemption shall become effective on May 1 of

such ozone season, provided that such NOX

emission limitation and the special provisions

apply to the unit as of such first date of operation.

If such NOX emission limitation and the special

provisions do not apply to the unit as of such first

date of operation, then the exemption under

subdivision 4.2.a shall become effective on

October 1 of the year during which such NOX

emission limitation and the special provisions

become final.

4.2.c. The Secretary will provide the

Administrator written notice of the issuance of a

federally enforceable permit under subdivision
45CSR26

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4.2.a for a unit under subdivisions 4.1.a, 4.1.b or

4.1.c and, upon request by the Administrator, a

copy of the permit.

4.2.d. Special provisions.

4.2.d.1. A unit exempt under

subdivision 4.2.a shall comply with the restriction

on fuel use and unit operating hours described in

subdivision 4.2.a during the ozone season in each

year.

4.2.d.2. The Secretary will allocate

NOX allowances to the unit under subsections

41.1, 41.2, 41.3, 42.2 and subdivision 42.1.a. For

each ozone season for which the unit is allocated

NOX allowances under subsections 41.1, 41.2,

41.3, 42.2 and subdivision 42.1.a:

4.2.d.2.A. The owners and

operators of the unit must specify a general

account, in which the Administrator will record

the NOX allowances; and

4.2.d.2.B. After the Administrator

records a NOX allowance allocation under

subsections 41.1, 41.2, 41.3, 42.2 and subdivision

42.1.a, the Administrator will deduct, from the

general account under subparagraph 4.2.d.2.A,

NOX allowances that are allocated for the same or

a prior ozone season as the NOX allowances

allocated to the unit under subsections 41.1, 41.2,

41.3, 42.2 and subdivision 42.1.a and that equal

the NOX emission limitation (in tons of NOX) on

which the unit’s exemption under subdivision

4.2.a is based. The NOX authorized account

representative shall ensure that such general

account contains the NOX allowances necessary

for completion of such deduction.

4.2.d.3. A unit exempt under

subdivisions 4.2.a and 4.2.b shall report hours of

unit operation during the ozone season in each

year to the Secretary by November 1 of that year.

4.2.d.4. For a period of 5 years from

the date the records are created, the owners and

operators of a unit exempt under subdivision 4.2.a

shall retain, at the source that includes the unit,

records demonstrating that the conditions of the

federally enforceable permit under subdivision

4.2.a were met, including the restriction on fuel

use and 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 Secretary or the Administrator. The owners

and operators bear the burden of proof that the

unit met the restriction on fuel use and unit

operating hours.

4.2.d.5. The owners and operators, and

to the extent applicable, the NOX authorized

account representative of a unit exempt under

subdivision 4.2.a shall comply with the

requirements of the NOX Budget Trading Program

concerning all periods for which the exemption is

not in effect, even if such requirements arise or

must be complied with, after the exemption takes

effect.

4.2.d.6. On the earlier of the following

dates, a unit exempt under subdivision 4.2.a shall

lose its exemption:

4.2.d.6.A. The date on which the

restriction on fuel use or unit operating hours

described in subdivision 4.2.a is removed from the

unit’s federally enforceable permit or otherwise

becomes no longer applicable to any ozone season

starting in 2004; or

4.2.d.6.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 subdivision 4.2.a during any ozone

season starting in 2004.

4.2.d.7. A unit that loses its exemption

in accordance with paragraph 4.2.d.6 shall be

subject to the requirements of this rule. For the

purpose of applying permitting requirements

under sections 20 through 24, allocating

allowances under sections 40 through 42, and

applying monitoring requirements under sections

70 through 76, the unit shall be treated as

commencing commercial operation on the date the

unit loses its exemption.
45CSR26

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§45-26-5. Retired Unit Exemption.

5.1. This section applies to any NOX Budget

unit that is permanently retired.

5.2.a. Any NOX Budget unit that is

permanently retired shall be exempt from the NOX

Budget Trading Program, except for the

provisions of this section, sections 2, 3, 4 and 7;

sections 40 through 42, sections 50 through 57 and

sections 60 through 62. 

5.2.b. The exemption under subdivision

5.2.a shall become effective the day on which the

unit is permanently retired. Within 30 days of

permanent retirement, the NOX authorized account

representative (authorized in accordance with

sections 10 through 14) shall submit a statement to

the Secretary (and a copy of the statement to the

Administrator) which states, in a format prescribed

by the Secretary, that the unit is permanently

retired and will comply with the special provisions

of subsection 5.3.

5.2.c. After receipt of the notice under

subdivision 5.2.b, the Secretary will amend any

permit covering the source at which the unit is

located to add the provisions and requirements of

the exemption under subdivision 5.2.a and

subsection 5.3.

5.3. Retired units exempted under this

section shall be subject to the following special

provisions:

5.3.a. A unit exempt under this section

shall not emit any nitrogen oxides, starting on the

date that the exemption takes effect;

5.3.b. The Secretary will allocate NOX

allowances in accordance with sections 40 through

42 to a unit exempt under this section. For each

ozone season for which the unit is allocated one or

more NOX allowances, the owners and operators

of the unit shall specify a general account, in

which the Administrator will record such NOX

allowances;

5.3.c. 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 Secretary or the

Administrator. The owners and operators bear the

burden of proof that the unit is permanently

retired; and

5.3.d. The owners and operators and, to the

extent applicable, the NOX authorized account

representative of a unit exempt under this section

shall comply with the requirements of the NOX

Budget Trading Program concerning all periods

for which the exemption is not in effect, even if

such requirements arise or must be complied with,

after the exemption takes effect;

5.3.e.1. A unit exempt under this

section and located at a source that is required or

but for this exemption would be required, to have

a title V operating permit shall not resume

operation unless the NOX authorized account

representative of the source submits a complete

NOX budget permit application under section 22

for the unit not less than 18 months (or such lesser

time provided by the Secretary) before the later of

May 31, 2004 or the date on which the unit is to

first resume operation; and

5.3.e.2. A unit exempt under this

section and located at a source that is required or

but for this exemption would be required, to have

a non-title V permit shall not resume operation

unless the NOX authorized account representative

of the source submits a complete NOX budget

permit application under section 22 for the unit not

less than 18 months (or such lesser time provided

by the Secretary) before the later of May 31, 2004

or the date on which the unit is to first resume

operation;

5.3.f. Loss of exemption. -- On the earlier

of the following dates, a unit exempt under

subdivision 5.2.a shall lose its exemption:

5.3.f.1. The date on which the NOX

authorized account representative submits a NOX

budget permit application under paragraphs 5.3.e.1
45CSR26

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and 5.3.e.2; or

5.3.f.2. The date on which the NOX

authorized account representative is required

under paragraphs 5.3.e.1 and 5.3.e.2 to submit a

NOX budget permit application; or

5.3.f.3. The date on which the unit

resumes operation, if the authorized account

representative is not required to submit a NOX

budget permit application.

5.3.g. For the purpose of applying

monitoring requirements under sections 70

through 76, 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.

§45-26-6. NOX Budget Trading Program

Standard Requirements.

6.1. Permit Requirements.

6.1.a. The NOX authorized account

representative of each NOX budget source required

to have a federally enforceable permit and each

NOX Budget unit required to have a federally

enforceable permit at the source shall:

6.1.a.1. Submit to the Secretary a

complete NOX budget permit application under

section 22 in accordance with the deadlines

specified in subsections 21.2 and 21.3; and

6.1.a.2. Submit in a timely manner any

supplemental information that the Secretary

determines is necessary in order to review a NOX

budget permit application and issue or deny a NOX

budget permit.

6.1.b. The owners and operators of each

NOX budget source required to have a federally

enforceable permit and each NOX Budget unit

required to have a federally enforceable permit at

the source shall have a NOX budget permit issued

by the Secretary and operate the unit in

compliance with such NOX budget permit.

6.2. Monitoring requirements.

6.2.a. The owners and operators, and to the

extent applicable, the NOX authorized account

representative of each NOX budget source and

each NOX Budget unit at the source shall comply

with the monitoring requirements of sections 70

through 76.

6.2.b. The emissions measurements

recorded and reported in accordance with sections

70 through 76 shall be used to determine

compliance by the unit with the NOX budget

emissions limitation under subsection 6.3.

6.3. Nitrogen oxides requirements.

6.3.a. The owners and operators of each

NOX budget source and each NOX Budget unit at

the source shall hold NOX allowances available for

compliance deductions under section 54, as of the

NOX allowance transfer deadline, in the unit’s

compliance account and the source’s overdraft

account in an amount not less than the total NOX

emissions for the ozone season from the unit, as

determined in accordance with sections 70 through

76, plus any amount necessary to account for

actual heat input under subdivision 42.5.a for the

ozone season or to account for excess emission for

a prior ozone season under subsection 54.4.

6.3.b. Each ton of nitrogen oxides emitted

in excess of the NOX budget emissions limitation

shall constitute a separate violation of this rule, the

CAA and W.Va. Code §22-5-1 et seq.

6.3.c. A NOX Budget unit shall be subject

to the requirements under subdivision 6.3.a

starting on the later of May 31, 2004 or the date

on which the unit commences operation.

6.3.d. NOX allowances shall be held in,

deducted from or transferred among NOX

Allowance Tracking System accounts in

accordance with sections 40 through 42, sections

50 through 57 and sections 60 through 62.

6.3.e. A NOX allowance shall not be

deducted, in order to comply with the

requirements under subdivision 6.3.a, for an ozone

season in a year prior to the year for which the

NOX allowance was allocated.
45CSR26

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6.3.f. A NOX allowance allocated by the

Secretary or the Administrator under the NOX

Budget Trading Program is a limited authorization

to emit one ton of nitrogen oxides in accordance

with the NOX Budget Trading Program. No

provision of the NOX Budget Trading Program,

the NOX budget permit application, the NOX

budget permit or an exemption under section 5 and

no provision of law shall be construed to limit the

authority of the Administrator or the Secretary to

terminate or limit such authorization.

6.3.g. A NOX allowance allocated by the

Secretary or the Administrator under the NOX

Budget Trading Program does not constitute a

property right.

6.3.h. Upon recordation by the

Administrator under sections 50 through 57 or

sections 60 through 62, every allocation, transfer

or deduction of a NOX allowance to or from a NOX

Budget unit’s compliance account or the overdraft

account of the source where the unit is located is

deemed to amend automatically and become a part

of, any NOX budget permit of the NOX Budget unit

by operation of law without any further review.

6.4. Excess emissions requirements.

6.4.a. The owners and operators of a NOX

Budget unit that has excess emissions in any

ozone season shall:

6.4.a.1. Surrender the NOX allowances

required for deduction under subdivision 54.4.a;

and

6.4.a.2. Pay any fine, penalty or

assessment or comply with any other remedy

imposed under subdivision 54.4.c.

6.5. Recordkeeping and reporting

requirements.

6.5.a. Unless otherwise provided, the

owners and operators of the NOX budget source

and each NOX Budget unit at the source shall keep

on site at the source each of the following

documents for a period of 5 years from the date

the document is created. This period may be

extended for cause, at any time prior to the end of

5 years, in writing by the Secretary or the

Administrator.

6.5.a.1. The account certificate of

representation for the NOX authorized account

representative for the source and each NOX Budget

unit at the source and all documents that

demonstrate the truth of the statements in the

account certificate of representation, in accordance

with section 13; 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 changing the

NOX authorized account representative.

6.5.a.2. All emissions monitoring

information, in accordance with sections 70

through 76; provided that to the extent that

sections 70 through 76 provides for a 3-year

period for recordkeeping, the 3-year period shall

apply.

6.5.a.3. Copies of all reports,

compliance certifications and other submissions

and all records made or required under the NOX

Budget Trading Program.

6.5.a.4. Copies of all documents used

to complete a NOX budget permit application and

any other submission under the NOX Budget

Trading Program or to demonstrate compliance

with the requirements of the NOX Budget Trading

Program.

6.5.b. The NOX authorized account

representative of a NOX budget source and each

NOX Budget unit at the source shall submit the

reports and compliance certifications required

under the NOX Budget Trading Program,

including those under sections 30 and 31 or

sections 70 through 76.

6.6. Liability.

6.6.a. Any person who knowingly violates

any requirement or prohibition of the NOX Budget

Trading Program, a NOX budget permit or an

exemption under subdivision 4.2.a or section 5
45CSR26

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shall be subject to enforcement pursuant to §22-5-

1 et seq. or the CAA.

6.6.b. Any person who knowingly makes a

false material statement in any record, submission

or report under the NOX Budget Trading Program

shall be subject to enforcement pursuant to §22-5-

1 et seq. or the CAA.

6.6.c. No permit revision shall excuse any

violation of the requirements of the NOX Budget

Trading Program that occurs prior to the date that

the revision takes effect.

6.6.d. Each NOX budget source and each

NOX Budget unit shall meet the requirements of

the NOX Budget Trading Program.

6.6.e. Any provision of the NOX Budget

Trading Program that applies to a NOX budget

source (including a provision applicable to the

NOX authorized account representative of a NOX

budget source) shall also apply to the owners and

operators of such source and of the NOX Budget

units at the source.

6.6.f. Any provision of the NOX Budget

Trading Program that applies to a NOX Budget

unit (including a provision applicable to the NOX

authorized account representative of a NOX

Budget unit) shall also apply to the owners and

operators of such unit. Except with regard to the

requirements applicable to units with a common

stack under sections 70 through 76, the owners

and operators and the NOX authorized account

representative of one NOX Budget unit shall not be

liable for any violation by any other NOX Budget

unit of which they are not owners or operators or

the NOX authorized account representative and

that is located at a source of which they are not

owners or operators or the NOX authorized

account representative.

6.7. Effect on other authorities. -- No

provision of the NOX Budget Trading Program, a

NOX budget permit application, a NOX budget

permit or an exemption under subdivision 4.2.a or

section 5 shall be construed as exempting or

excluding the owners and operators and, to the

extent applicable, the NOX authorized account

representative of a NOX budget source or NOX

Budget unit from compliance with any other

provision of §22-5-1 et seq., the approved West

Virginia state implementation plan, a federally

enforceable permit or the CAA.

§45-26-7. Computation of Time.

7.1. Unless otherwise stated, any time period

scheduled, under the NOX Budget Trading

Program, to begin on the occurrence of an act or

event shall begin on the day the act or event

occurs.

7.2. Unless otherwise stated, any time period

scheduled, under the NOX Budget Trading

Program, to begin before the occurrence of an act

or event shall be computed so that the period ends

the day before the act or event occurs.

7.3. Unless otherwise stated, if the final day

of any time period, under the NOX Budget Trading

Program, falls on a weekend or a state or federal

holiday, the time period shall be extended to the

next business day.

§45-26-10. Authorization and Responsibilities

of the NOX Authorized Account Representative.

10.1. Except as provided under section 11,

each NOX budget source, including all NOX

Budget units at the source, shall have one and only

one NOX authorized account representative, with

regard to all matters under the NOX Budget

Trading Program concerning the source or any

NOX Budget unit at the source.

10.2. The NOX authorized account

representative of the NOX budget source shall be

selected by an agreement binding on the owners

and operators of the source and all NOX Budget

units at the source.

10.3. Upon receipt by the Administrator of a

complete account certificate of representation

under section 13, the NOX authorized account

representative of the source shall represent and, by

his or her representations, actions, inactions or

submissions, legally bind each owner and operator

of the NOX budget source represented and each
45CSR26

14

NOX Budget unit at the source in all matters

pertaining to the NOX Budget Trading Program,

not withstanding any agreement between the NOX

authorized account representative and such owners

and operators. The owners and operators shall be

bound by any decision or order issued to the NOX

authorized account representative by the

Secretary, the Administrator or a court regarding

the source or unit.

10.4. No NOX budget permit shall be issued

and no NOX Allowance Tracking System account

shall be established for a NOX Budget unit at a

source until the Administrator has received a

complete account certificate of representation

under section 13 for a NOX authorized account

representative of the source and the NOX Budget

units at the source.

10.5.a. Each submission under the NOX

Budget Trading Program shall be submitted,

signed and certified by the NOX authorized

account representative for each NOX budget

source on behalf of which the submission is made.

Each such submission shall include the following

certification statement by the NOX authorized

account representative: “I am authorized to make

this submission on behalf of the owners and

operators of the NOX budget sources or NOX

Budget units for which the submission is made. I

certify under penalty of law that I have personally

examined and am familiar with, the statements and

information submitted in this document and all its

attachments. Based on my inquiry of those

individuals with primary responsibility for

obtaining the information, I certify that the

statements and information are to the best of my

knowledge and belief true, accurate and complete.

I am aware that there are significant penalties for

submitting false statements and information or

omitting required statements and information,

including the possibility of fine or imprisonment.”

10.5.b. The Secretary and the

Administrator will accept or act on a submission

made on behalf of owner or operators of a NOX

budget source or a NOX Budget unit only if the

submission has been made, signed and certified in

accordance with subdivision 10.5.a.

§45-26-11. Alternate NOX Authorized Account

Representative.

11.1. An account certificate of representation

may designate one and only one alternate NOX

authorized account representative who may act on

behalf of the NOX authorized account

representative. The agreement by which the

alternate NOX authorized account representative is

selected shall include a procedure for authorizing

the alternate NOX authorized account

representative to act in lieu of the NOX authorized

account representative.

11.2. Upon receipt by the Administrator of a

complete account certificate of representation

under section 13, any representation, action,

inaction or submission by the alternate NOX

authorized account representative shall be deemed

to be a representation, action, inaction or

submission by the NOX authorized account

representative.

11.3. Except in this section and subsection

10.1, sections 12, 13 and 51, whenever the term

“NOX authorized account representative” is used

in this rule, the term shall be construed to include

the alternate NOX authorized account

representative.

§45-26-12. Changing the NOX Authorized

Account Representative and the Alternate NOX

Authorized Account Representative; Changes

in Owners and Operators.

12.1. Changing the NOX authorized account

representative. -- The NOX authorized account

representative may be changed at any time upon

receipt by the Administrator of a superseding

complete account certificate of representation

under section 13. Notwithstanding any such

change, all representations, actions, inactions and

submissions by the previous NOX authorized

account representative prior to the time and date

when the Administrator receives the superseding

account certificate of representation shall be

binding on the new NOX authorized account

representative and the owners and operators of the

NOX budget source and the NOX Budget units at

the source.
45CSR26

15

12.2. Changing the alternate NOX authorized

account representative. -- The alternate NOX

authorized account representative may be changed

at any time upon receipt by the Administrator of a

superseding complete account certificate of

representation under section 13. Notwithstanding

any such change, all representations, actions,

inactions and submissions by the previous

alternate NOX authorized account representative

prior to the time and date when the Administrator

receives the superseding account certificate of

representation shall be binding on the new

alternate NOX authorized account representative

and the owners and operators of the NOX budget

source and the NOX Budget units at the source.

12.3. Changes in owners and operators.

12.3.a. In the event a new owner or

operator of a NOX budget source or a NOX Budget

unit is not included in the list of owners and

operators submitted in the account certificate of

representation, such new owner or operator shall

be deemed to be subject to and bound by the

account certificate of representation, the

representations, actions, inactions and submissions

of the NOX authorized account representative and

any alternate NOX authorized account

representative of the source or unit and the

decisions orders, actions and inactions of the

Secretary or the Administrator, as if the new

owner or operator were included in such list.

12.3.b. Within 30 days following any

change in the owners and operators of a NOX

budget source or a NOX Budget unit, including the

addition of a new owner or operator, the NOX

authorized account representative or alternate NOX

authorized account representative shall submit to

the Administrator a revision to the account

certificate of representation amending the list of

owners and operators to include the change.

§45-26-13. A c c o u n t C e r t i f i c a t e o f

Representation.

13.1. A complete account certificate of

representation for a NOX authorized account

representative or an alternate NOX authorized

account representative shall include the following

elements in a format prescribed by the

Administrator:

13.1.a. Identification of the NOX budget

source and each NOX Budget unit at the source for

which the account certificate of representation is

submitted;

13.1.b. The name, address, e-mail address

(if any), telephone number and facsimile

transmission number (if any) of the NOX

authorized account representative and any

alternate NOX authorized account representative;

13.1.c. A list of the owners and operators

of the NOX budget source and of each NOX Budget

unit at the source;

13.1.d. The following certification

statement by the NOX authorized account

representative and any alternate NOX authorized

account representative: “I certify that I was

selected as the NOX authorized account

representative or alternate NOX authorized account

representative, as applicable, by an agreement

binding on the owners and operators of the NOX

budget source and each NOX Budget unit at the

source. I certify that I have all the necessary

authority to carry out my duties and

responsibilities under the NOX Budget Trading

Program on behalf of the owners and operators of

the NOX budget source and of each NOX Budget

unit at the source and that each such owner and

operator shall be fully bound by my

representations, actions, inactions or submissions

and by any decision or order issued to me by the

Secretary, the Administrator or a court regarding

the source or unit”; and

13.1.e. The signature of the NOX

authorized account representative and any

alternate NOX authorized account representative

and the dates signed.

13.2. Unless otherwise required by the

Secretary or the Administrator, documents of

agreement referred to in the account certificate of

representation shall not be submitted to the

Secretary or the Administrator. Neither the

Secretary nor the Administrator shall be under any
45CSR26

16

obligation to review or evaluate the sufficiency of

such documents, if submitted.

§45-26-14. Objections Concerning the NOX

Authorized Account Representative.

14.1. Once a complete account certificate of

representation under section 13 has been

submitted and received, the Secretary and the

Administrator will rely on the account certificate

of representation unless and until a superseding

complete account certificate of representation

under section 13 is received by the Administrator.

14.2. Except as provided in subsections 12.1

or 12.2, no objection or other communication

submitted to the Secretary or the Administrator

concerning the authorization or any representation,

action, inaction or submission of the NOX

authorized account representative shall affect any

representation, action, inaction or submission of

the NOX authorized account representative or the

finality of any decision or order by the Secretary

or the Administrator under the NOX Budget

Trading Program.

14.3. Neither the Secretary nor the

Administrator will adjudicate any private legal

dispute concerning the authorization or any

representation, action, inaction or submission of

any NOX authorized account representative,

including private legal disputes concerning the

proceeds of NOX allowance transfers.

§45-26-20. General NOX Budget Trading

Program Permit Requirements.

20.1. For each NOX budget source required to

have a federally enforceable permit, such permit

shall include a NOX budget permit administered by

the Secretary.

20.1.a. For NOX budget sources required

to have a title V operating permit, the NOX budget

portion of the title V permit shall be administered

in accordance with 45CSR30, except as provided

otherwise by section 20. The applicable

provisions of 45CSR30 shall include, but are not

limited to, those provisions addressing operating

permit applications, operating permit application

shield, operating permit duration, operating permit

shield, operating permit issuance, operating permit

revision and reopening, public participation and

review by the Secretary and Administrator.

20.1.b. For NOX budget sources required

to have a non-title V permit, the NOX budget

portion of the non-title V permit shall be

administered in accordance with 45CSR13, except

as provided otherwise by sections 20 through 24.

The applicable provisions of 45CSR13 may

include, but are not limited to, provisions

addressing permit applications, permit duration,

permit issuance, permit revision and reopening,

public participation and review by the Secretary

and Administrator.

20.2. Each NOX budget permit (including a

draft or proposed NOX budget permit, if

applicable) shall include all applicable NOX

Budget Trading Program requirements and shall

be a complete and segregable portion of the permit

under subsection 20.1.

§45-26-21. NOX Budget Permit Applications.

21.1. Duty to apply. -- The NOX authorized

account representative of any NOX budget source

required to have a federally enforceable permit

shall submit to the Secretary a complete NOX

budget permit application under section 22 by the

applicable deadline in subsection 21.2.

21.2. Deadlines for NOX budget permit

applications.

21.2.a. For NOX budget sources required

to have a title V operating permit:

21.2.a.1. For any source, with one or

more NOX Budget units under subsection 4.1 that

commenced operation before January 1, 2000, the

NOX authorized account representative shall

submit a complete NOX budget permit application

under section 22 covering such NOX Budget units

to the Secretary at least 18 months before May 31,

2004; and

21.2.a.2. For any source, with any NOX

Budget unit under subsection 4.1 that commences
45CSR26

17

operation on or after January 1, 2001, the NOX

authorized account representative shall submit a

complete NOX budget permit application under

section 22 covering such NOX Budget unit to the

Secretary at least 6 months before the later of May

31, 2004 or the date on which the NOX Budget

unit commences operation.

21.2.b. For NOX budget sources required

to have a non-title V permit:

21.2.b.1. For any source, with one or

more NOX Budget units under subsection 4.1 that

commenced operation before January 1, 2001, the

NOX authorized account representative shall

submit a complete NOX budget permit application

under section 22 covering such NOX Budget units

to the Secretary at least 6 months before May 31,

2004; and

21.2.b.2. For any source, with any NOX

Budget unit under subsection 4.1 that commences

operation on or after January 1, 2000, the NOX

authorized account representative shall submit a

complete NOX budget permit application under

section 22 covering such NOX Budget unit to the

Secretary at least 6 months before the later of May

31, 2004 or the date on which the NOX Budget

unit commences operation.

21.3. Duty to reapply.

21.3.a. For a NOX budget source required

to have a title V operating permit, the NOX

authorized account representative shall submit a

complete NOX budget permit application under

section 22 for the NOX budget source covering the

NOX Budget units at the source in accordance with

the operating permit renewal requirements set

forth in 45CSR30.

21.3.b. For a NOX budget source required

to have a non-title V permit, the NOX authorized

account representative shall submit a complete

NOX budget permit application under section 22

for the NOX budget source covering the NOX

Budget units at the source in accordance with

45CSR13.

§45-26-22. Information Requirements for

NOX Budget Permit Applications.

22.1. A complete NOX budget permit

application shall include the following elements

concerning the NOX budget source for which the

application is submitted, in a format prescribed by

the Secretary:

22.1.a. Identification of the NOX budget

source, including plant name and the ORIS (Office

of Regulatory Information Systems) or facility

code assigned to the source by the Energy

Information Administration, if applicable;

22.1.b. Identification of each NOX Budget

unit at the NOX budget source and whether it is a

NOX Budget unit under subsection 4.1; and

22.1.c. The standard requirements under

section 6.

§45-26-23. NOX Budget Permit Contents.

23.1. Each NOX budget permit (including any

draft or proposed NOX budget permit) will

contain, in a format prescribed by the Secretary,

all elements required for a complete NOX budget

permit application under section 22.

23.2. Each NOX budget permit is deemed to

incorporate automatically the definitions of terms

under section 2 and, upon recordation by the

Administrator under sections 50 through 57 or

sections 60 through 62, every allocation, transfer

or deduction of a NOX allowance to or from the

compliance accounts of the NOX Budget units

covered by the permit or the overdraft account of

the NOX budget source covered by the permit.

§45-26-24. NOX Budget Permit Revisions.

24.1. For a NOX budget source with a title V

operating permit, except as provided in subsection

23.2, the Secretary will revise the NOX budget

permit, as necessary, in accordance with the

operating permit revision requirements set forth in

45CSR30.

24.2. For a NOX budget source with a non-title

V permit, except as provided in subsection 23.2.,
45CSR26

18

the Secretary will reissue the NOX budget permit

as necessary, in accordance with 45CSR13.

§45-26-30. Compliance Certification Report.

30.1. Applicability and deadline. -- For each

ozone season in which one or more NOX Budget

units at a source are subject to the NOX budget

emissions limitation, the NOX authorized account

representative of the source shall submit to the

Secretary and the Administrator by November 30

of that year, a compliance certification report for

each source covering all such units.

30.2. Contents of report. -- The NOX

authorized account representative shall include in

the compliance certification report under

subsection 30.1 the following elements, in a

format prescribed by the Administrator,

concerning each unit at the source and subject to

the NOX budget emissions limitation for the ozone

season covered by the report:

30.2.a. Identification of each NOX Budget

unit;

30.2.b. At the NOX authorized account

representative’s option, the serial numbers of the

NOX allowances that are to be deducted from each

unit’s compliance account under section 54 for the

ozone season;

30.2.c. At the NOX authorized account

representative’s option, for units sharing a

common stack and having NOX emissions that are

not monitored separately or apportioned in

accordance with sections 70 through 76, the

percentage of allowances that is to be deducted

from each unit’s compliance account under

subsection 54.5; and

30.2.d. The compliance certification

under subsection 30.3.

30.3. Compliance certification. -- In the

compliance certification report under subsection

30.1, the NOX authorized account representative

shall certify, based on reasonable inquiry of those

persons with primary responsibility for operating

the source and the NOX Budget units at the source

in compliance with the NOX Budget Trading

Program, whether each NOX Budget unit for

which the compliance certification is submitted

was operated during the calendar year covered by

the report in compliance with the requirements of

the NOX Budget Trading Program applicable to

the unit, including:

30.3.a. Whether the unit was operated in

compliance with the NOX budget emissions

limitation;

30.3.b. Whether the monitoring plan that

governs the unit has been maintained to reflect the

actual operation and monitoring of the unit and

contains all information necessary to attribute

NOX emissions to the unit, in accordance with

sections 70 through 76;

30.3.c. Whether all the NOX emissions

from the unit or a group of units (including the

unit) using a common stack, were monitored or

accounted for through the missing data procedures

and reported in the quarterly monitoring reports,

including whether conditional data were reported

in the quarterly reports in accordance with

sections 70 through 76. 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;

30.3.d. Whether the facts that form the

basis for certification under sections 70 through 76

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

sections 70 through 76, if any, have changed; and

30.3.e. If a change is required to be

reported under subdivision 30.3.d, 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.

§45-26-31. Secretary’s and Administrator’s
45CSR26

19

Action on Compliance Certifications.

31.1. The Secretary or the Administrator may

review and conduct independent audits concerning

any compliance certification or any other

submission under the NOX Budget Trading

Program and make appropriate adjustments of the

information in the compliance certifications or

other submissions.

31.2. The Administrator may deduct NOX

allowances from or transfer NOX allowances to a

unit’s compliance account or a source’s overdraft

account based on the information in the

compliance certifications or other submissions, as

adjusted under subsection 31.1.

§45-26-40. State NOX Trading Budget.

40.1. In accordance with sections 41 and 42,

the Secretary will allocate to the NOX Budget units

under subsection 4.1 for each ozone season

specified in section 41, a total number of

allowances equal to the number of NOX tons

apportioned to electric generating units in the

State of West Virginia as set forth in paragraph

(g)(2)(ii) of 40 CFR §51.121, as amended from

time to time, less the sum of the NOX emission

limitations (in tons) for each unit exempt under

subdivision 4.2.a that is not allocated any NOX

allowances under subsection 42.2 for the ozone

season and whose NOX emission limitation (in

tons of NOX) is not included in the amount

calculated under subparagraph 42.4.e.2.B for the

ozone season.

§45-26-41. Timing Requirements for State

NOX Allowance Allocations.

41.1. By April 1, 2002, the Secretary will

determine by order and submit to the

Administrator the state NOX allowance

allocations, in accordance with subdivision 42.1.a

and subsection 42.2, for the ozone seasons in 2004

through 2007.

41.2. By April 1, 2005, the Secretary will

determine by order and submit to the

Administrator the NOX allowance allocations, in

accordance with subdivision 42.1.a and subsection

42.2 for the ozone seasons in 2008 through 2012.

41.3. By April 1, 2010, by April 1 of 2015

and thereafter by April 1 of the year that is 5 years

after the last year for which NOX allowance

allocations are determined, the Secretary will

determine by order and submit to the

Administrator the NOX allowance allocations, in

accordance with subdivision 42.1.a and subsection

42.2 for the ozone seasons in the years that are 3,

4, 5, 6 and 7 years after the applicable deadline

under this subsection.

41.4. By April 1, 2004 and April 1 of each

year thereafter, the Secretary will determine by

order and submit to the Administrator the NOX

allowance allocations from the new source NOX

allowance allocation set-aside, in accordance with

subsection 42.4, for the ozone season in the year

of the applicable deadline under this subsection.

If the Secretary fails to submit to the

Administrator the new source NOX allowance

allocations in accordance with this subsection, the

Administrator will allocate, for the applicable

ozone season, the same number of NOX

allowances as were allocated for the preceding

ozone season.

41.5. The Secretary will make available to the

public and the Administrator the draft order

determining the NOX allowance allocations under

subsections 41.2, 41.3 or 41.4 by February 1 of

the applicable year by filing the draft order with

the Secretary of State for publication in the State

Register and submittal to the Administrator. The

draft order shall be accompanied with a notice

providing for a 30 day comment period during

which the submission of written objections to the

determinations in the draft order will be accepted.

Objections shall be limited to addressing whether

the determinations are in accordance with section

42. Based on any such objections, the Secretary

will adjust each determination to the extent

necessary to ensure that it is in accordance with

section 42. If error in any such order is discovered

after the April 1 issuance of the final orders, the

Secretary may issue a revised order making

correction to such orders. Any such revised final

order shall then be submitted to the Administrator,

filed with the Secretary of State and published in
45CSR26

20

the State Register.

§45-26-42. State NOX Allowance Allocations.

42.1.a. The heat input (in mmBtu) used

for calculating state NOX allowance allocations for

each NOX Budget unit under subsection 4.1 will

be:

42.1.a.1. For a state NOX allowance

allocation under subsection 41.1, the average of

the two highest amounts of the unit’s heat input

for the ozone seasons 1995 through 1998.

42.1.a.2. For a NOX allowance

allocation under subsection 41.2, the unit’s

average heat input for the ozone seasons in 2002

through 2004.

42.1.a.3. For a NOX allowance

allocation under subsection 41.3, the unit’s

average heat input for the ozone season in the

years that are 4, 5, 6, 7 and 8 years before the first

ozone season for which the allocation is being

calculated.

42.1.b. The unit’s total heat input for the

ozone season in each year specified under

subdivision 42.1.a will be determined in

accordance with 40 CFR Part 75.

Notwithstanding the first sentence of this

subdivision:

42.1.b.1. For a NOX allowance

allocation under subsection 41.1, such heat input

will be determined using the best available data

reported to the Secretary for the unit if the unit

was not otherwise subject to the requirements of

40 CFR Part 75 for the ozone season; and

42.1.b.2. For a NOX allowance

allocation under subsections 41.2 or 41.3, for a

unit exempt under subdivision 4.2.a, such heat

input shall be treated as zero if the unit is exempt

under subdivision 4.2.a during the ozone season.

42.2. For each block of ozone seasons

specified in subsections 41.1, 41.2 and 41.3, the

Secretary will allocate to all NOX Budget units

under subsection 4.1 that commenced operation

before: May 1, 1997 for allocations under

subsection 41.1; May 1, 2003 for allocations under

subsection 41.2; and May 1 of the year 5 years

before the first ozone season for which the

allocation under subsection 41.3 is being

calculated, a total number of NOX allowances

equal to 95 percent of the portion of the state NOX

trading budget under subsection 40.1, covering

such units. The Secretary will allocate in

accordance with the following procedures:

42.2.a. The Secretary will allocate NOX

allowances to each NOX Budget unit under

subsection 4.1 for each ozone season in an amount

that does not exceed the lesser of:

42.2.a.1. 0.15 lb/mmBtu multiplied by

the heat input determined under subdivision

42.1.a, divided by 2,000 lb/ton and rounded to the

nearest whole number of NOX allowances as

appropriate; or

42.2.a.2. The unit’s most stringent state

or federal NOX emission limitation multiplied by

the heat input determined under subdivision

42.1.a, divided by 2,000 lb/ton and rounded to the

nearest whole number of NOX allowances as

appropriate.

42.2.b. If the initial total number of NOX

allowances allocated to all NOX Budget units

under subsection 4.1 for an ozone season under

subdivision 42.2.a does not equal 95 percent of the

portion of the state NOX trading budget under

subsection 40.1, covering such units, the Secretary

will adjust the total number of NOX allowances

allocated to all such NOX Budget units for the

ozone season under subdivision 42.2.a so that the

total number of NOX allowances allocated equals

95 percent of the portion of the state NOX trading

budget under subsection 40.1, covering such units.

This adjustment will be made by multiplying each

unit’s allocation by 95 percent of the portion of

the state NOX trading budget under subsection

40.1, covering such units; dividing by the total

number of NOX allowances allocated under

subdivision 42.2.a for the ozone season; and

rounding to the nearest whole number of NOX

allowances as appropriate.
45CSR26

21

42.3. Reserved.

42.4. New source NOX allocation set-aside. --

For each ozone season under subsection 41.4, the

Secretary will allocate NOX allowances from the

allocation set-aside to NOX Budget units under

subsection 4.1 (except for units exempt under

subdivision 4.2.a) that commence operation or are

projected to commence operation, on or after: May

1, 1997 (for ozone seasons under subsection 41.1);

May 1, 2003 (for ozone seasons under subsection

41.2); and May 1 of the year 5 years before the

beginning of the group of 5 years that includes the

ozone season (for ozone seasons under subsection

41.3). The Secretary will make the allocations

under this subsection in accordance with the

following procedures:

42.4.a. The Secretary will establish one

allocation set-aside for each ozone season. Each

allocation set-aside will be allocated NOX

allowances equal to 5 percent of the tons of NOX

emissions in the state NOX trading budget under

subsection 40.1, rounded to the nearest whole

number of NOX allowances as appropriate;

42.4.b. The NOX authorized account

representative of a NOX Budget unit under

subsection 42.4 may submit to the Secretary a

request, in writing or in a format specified by the

Secretary, to be allocated NOX allowances from

the allocation set-aside for the ozone season. The

NOX allowance allocation request must be

received by the Secretary on or after the date on

which the Secretary issues a permit to construct

the unit and by January 1 before the ozone season

for which NOX allowances are requested;

42.4.c. In the NOX allowance allocation

request under subdivision 42.4.b, the NOX

authorized account representative for a NOX

Budget unit under subsection 4.1 may request for

the ozone season NOX allowances in an amount

that does not exceed the lesser of:

42.4.c.1. 0.15 lb/mmBtu multiplied by

the unit’s maximum design heat input (in

mmBtu/hr), multiplied by the lesser of 3,672 hours

or the number of hours remaining in the ozone

season starting with the day in the ozone season

on which the unit commences operation or is

projected to commence operation, divided by

2,000 lb/ton and rounded to the nearest whole

number of NOX allowances as appropriate; or

42.4.c.2. The unit’s most stringent state

or federal NOX emission limitation multiplied by

the unit’s maximum design heat input, multiplied

by the lesser of 3,672 hours or the number of

hours remaining in the ozone season starting with

the day in the ozone season on which the unit

commences operation or is projected to commence

operation, divided by 2,000 lb/ton and rounded to

the nearest whole number of NOX allowances as

appropriate.

42.4.d. Reserved.

42.4.e. The Secretary will review each

NOX allowance allocation request submitted in

accordance with subdivision 42.4.b and will

allocate NOX allowances pursuant to such request

as follows:

42.4.e.1. Upon receipt of the NOX

allowance allocation request, the Secretary will

make any necessary adjustments to the request to

ensure the requirements of subsection 42.4 and

subdivisions 42.4.b and 42.4.c are met;

42.4.e.2. The Secretary will determine

the following amounts:

42.4.e.2.A. The sum of the NOX

allowances requested (as adjusted under paragraph

42.4.e.1) in all NOX allowance allocation requests

under subdivision 42.4.b for the ozone season; and

42.4.e.2.B. For units exempt under

subdivision 4.2.a that commenced operation, or

are projected to commence operation, on or after

May 1, 1997 (for ozone seasons under subsection

41.1); May 1, 2003, (for ozone seasons under

subsection 41.2); and May 1 of the year 5 years

before the beginning of the group of 5 years that

includes the ozone season (for ozone seasons

under subsection 41.3), the sum of the NOX

emission limitations (in tons of NOX) on which

each unit’s exemption under subdivision 4.2.a is

based;
45CSR26

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42.4.e.3. If the number of NOX

allowances in the allocation set-aside for the

ozone season less the amount under subparagraph

42.4.e.2.B is not less than the amount determined

under subparagraph 42.4.e.2.A, the Secretary will

allocate the amount of the NOX allowances

requested (as adjusted under paragraph 42.4.e.1)

to the NOX Budget unit for which the allocation

request was submitted; and

42.4.e.4. If the number of NOX

allowances in the allocation set-aside for the

ozone season less the amount under subparagraph

42.4.e.2.B is less than the amount determined

under subparagraph 42.4.e.2.A, the Secretary will

allocate, to the NOX Budget unit for which the

allocation request was submitted, the amount of

NOX allowances requested (as adjusted under

paragraph 42.4.e.1) multiplied by the number of

NOX allowances in the allocation set-aside for the

ozone season less the amount determined under

subparagraph 42.4.e.2.B, divided by the amount

determined under subparagraph 42.4.e.2.A and

rounded to the nearest whole number of NOX

allowances as appropriate.

42.5.a. For a NOX Budget unit that is

allocated NOX allowances under subsection 42.4

for an ozone season, the Administrator will deduct

NOX allowances under subsections 54.2, 54.5 or

54.6 to account for the actual heat input of the unit

during the ozone season. The Administrator will

calculate the number of NOX allowances to be

deducted to account for the unit’s actual heat input

using the following formulas and rounding to the

nearest whole number of NOX allowances as

appropriate, provided that the number of NOX

allowances to be deducted shall be zero if the

number calculated is less than zero:

NOX allowances deducted for actual heat

input for units under subsection 4.1 = (unit’s NOX

allowances allocated for ozone season) ! [(unit’s

actual ozone season heat input X the lessor of 0.15

lb/mmBtu or the unit’s most stringent state or

federal NOX emission limitation) ÷ 2000 lb/ton].

where:

“Unit’s NOX allowances allocated for ozone

season” is the number of NOX allowances

allocated to the unit for the ozone season under

subsection 42.4; and

“Unit’s actual ozone season heat input” is

the heat input (in mmBtu) of the unit during the

ozone season.

42.5.b. The Administrator will transfer

any NOX allowances deducted under subdivision

42.5.a to the allocation set-aside for the ozone

season for which they were allocated.

42.6. After making the deductions for

compliance under subsections 54.2, 54.5 or 54.6

for an ozone season, the Administrator will

determine whether any NOX allowances remain in

the allocation set-aside for the ozone season. The

Secretary will allocate any such NOX allowances

to the NOX Budget units using the following

formula and rounding to the nearest whole number

of NOX allowances as appropriate:

Unit’s share of NOX allowances remaining

in allocation set-aside = (Total NOX allowances

remaining in allocation set-aside) X (Unit’s NOX

allowance allocation) ÷ (state NOX trading budget

excluding allocation set-aside)

where:

“Total NOX allowances remaining in

allocation set-aside” is the total number of NOX

allowances remaining in the allocation set-aside

for the ozone season;

“Unit’s NOX allowance allocation” is the

number of NOX allowances allocated under

subsection 42.2 to the unit for the ozone season to

which the allocation set-aside applies; and

“State NOX trading budget excluding

allocation set-aside” is the state NOX trading

budget under subsection 40.1 for the ozone season

to which the allocation set-aside applies multiplied

by 95 percent, rounded to the nearest whole

number of NOX allowances as appropriate.

42.7. If the Administrator determines that

NOX allowances were allocated under subsections
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42.2 or 42.4 for an ozone season and the recipient

of the allocation is not actually a NOX Budget unit

under subsection 4.1, the Administrator will notify

the NOX authorized account representative and

then will act in accordance with the following

procedures:

42.7.a.1. The Administrator will not

record such NOX allowances for the ozone season

in an account under section 53;

42.7.a.2. If the Administrator already

recorded such NOX allowances for the ozone

season in an account under section 53 and if the

Administrator makes such determination before

making all deductions pursuant to section 54

(except deductions pursuant to subdivision 54.4.b)

for the ozone season, then the Administrator will

deduct from the account NOX allowances equal in

number to and allocated for the same or a prior

ozone season as the NOX allowances allocated to

such recipient for the ozone season. The NOX

authorized account representative shall ensure the

account contains the NOX allowances necessary

for completion of such deduction. If the account

does not contain the necessary NOX allowances,

the Administrator will deduct the required number

of NOX allowances, regardless of the ozone season

for which they were allocated, whenever NOX

allowances are recorded in the account or:

42.7.a.3. If the Administrator already

recorded such NOX allowances for the ozone

season in an account under section 53 and if the

Administrator makes such determination after

making all deductions pursuant to section 54

(except deductions pursuant to subdivision 54.4.b)

for the ozone season, then the Administrator will

apply paragraph 42.7.a.2 to any subsequent ozone

season for which NOX allowances were allocated

to such recipient.

42.7.b. The Administrator will transfer

the NOX allowances that are not recorded, or that

are deducted, pursuant to paragraphs 42.7.a.1,

42.7.a.2 and 42.7.a.3 to the state allocation setaside.

§45-26-43. Compliance Supplement Pool.

43.1. For any NOX Budget unit that reduces its

NOX emission rate in the 2002 or 2003 ozone

season, the owners and operators may request

early reduction credits in accordance with the

following requirements:

43.1.a. Each NOX Budget unit for which

the owners and operators intend to request, or

request, any early reduction credits in accordance

with subdivision 43.1.d shall monitor and report

NOX emissions in accordance with sections 70

through 76 starting in the 2001 ozone season and

for each ozone season for which such early

reduction credits are requested. The unit’s percent

monitor data availability shall not be less than 90

percent during the 2001 ozone season and the unit

must be in full compliance with any applicable

state or federal NOX emission control requirements

during 2001 through 2003;

43.1.b. NOX emission rate and heat input

under subdivisions 43.1.c and 43.1.d shall be

determined in accordance with sections 70 through

76;

43.1.c. Each NOX Budget unit for which

the owners and operators intend to request, or

request, any early reduction credits under

subdivision 43.1.d shall reduce its NOX emission

rate, for each ozone season for which early

reduction credits are requested, to less than both

0.25 lb/mmBtu and 80 percent of the unit’s NOX

emission rate in the 2001 ozone season; and

 43.1.d. The NOX authorized account

representative of a NOX Budget unit that meets the

requirements of subdivisions 43.1.a and 43.1.c

may submit to the Secretary a request for early

reduction credits for the unit based on NOX

emission rate reductions made by the unit in the

ozone season for 2002 or 2003.

43.1.d.1. In the early reduction credit

request, the NOX authorized account

representative may request early reduction credits

for such ozone season in an amount equal to the

unit’s heat input for such ozone season multiplied

by the difference between 0.25 lb/mmBtu and the

unit’s NOX emission rate for such ozone season,

divided by 2000 lb/ton and rounded to the nearest
45CSR26

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whole number of tons.

43.1.d.2. The early reduction credit

request must be submitted in a format specified by

the Secretary by February 1, 2004.

43.2. Reserved.

43.2.a. Reserved.

43.2.b. Reserved.

43.2.c. Reserved.

43.3. The Secretary will review each early

reduction credit request submitted in accordance

with subsection 43.1 and will allocate NOX

allowances to NOX Budget units covered by such

request as follows:

43.3.a. Upon receipt of each early

reduction credit request, the Secretary will make

any necessary adjustments to the request to ensure

that the amount of the early reduction credits

requested meets the requirements of subsection

43.1;

43.3.b. After February 1, 2004, the

Secretary will make available to the public a

statement of the total number of early reduction

credits requested by NOX Budget units;

43.3.c. If the compliance supplement

pool has a number of NOX allowances not less

than the amount of early reduction credits in all

early reduction credit requests under subsection

43.1 for 2002 and 2003 (as adjusted under

subdivision 43.3.a) submitted by February 1,

2004, the Secretary will allocate to each NOX

Budget unit covered by such requests one

allowance for each early reduction credit

requested (as adjusted under subdivision 43.3.a);

43.3.d. If the compliance supplement

pool has a smaller number of NOX allowances

than the amount of early reduction credits in all

early reduction credit requests under subsection

43.1 for 2002 and 2003 (as adjusted under

subdivision 43.3.a) submitted by February 1,

2004, the Secretary will allocate NOX allowances

to each NOX Budget unit covered by such requests

according to the following formula and rounding

to the nearest whole number of NOX allowances as

appropriate:

Unit’s allocation for early reduction credits =

Unit’s adjusted early reduction credits X (state’s

compliance supplement pool ÷ total adjusted early

reduction credits for all units)

Where:

“Unit’s allocation for early reduction credits”

is the number of NOX allowances allocated to the

unit for early reduction credits;

“Unit’s adjusted early reduction credits” is the

amount of early reduction credits requested for the

unit for 2002 and 2003 in early reduction credit

requests under subsection 43.1, as adjusted under

subdivision 43.3.a;

“Compliance supplement pool” is 16,709 tons

of NOX allowances;

“Total adjusted early reduction credits for all

units” is the amount of early reduction credits

requested for all units for 2002 and 2003 in early

reduction credit requests under subsection 43.1, as

adjusted under subdivision 43.3.a;

43.3.e. By April 1, 2004, the Secretary

will determine by order the allocations under

subdivisions 43.3.c or 43.3.d. The Secretary will

make available to the public each determination of

NOX allowance allocations and will provide an

opportunity for submission of objections to the

determination. Objections shall be limited to

addressing whether the determination is in

accordance with subdivisions 43.3.a, 43.3.c or

43.3.d. Based on any such objections, the

Secretary will adjust each determination to the

extent necessary to ensure that it is in accordance

with subdivisions 43.3.a, 43.3.c or 43.3.d;

43.3.f. By May 1, 2004, the

Administrator will record the allocations under

subdivisions 43.3.c or 43.3.d; and

43.3.g. NOX allowances recorded under
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subdivision 43.3.f may be deducted for

compliance under section 54 for the ozone season

in 2004 or 2005. Notwithstanding subsection

55.1, the Administrator will deduct as retired any

NOX allowance that is recorded under subdivision

43.3.f and that is not deducted for compliance

under section 54 for the ozone season in 2004 or

2005.

§45-26-50. NOX Allowance Tracking System

Accounts.

50.1. Nature and function of compliance

accounts and overdraft accounts. -- Consistent

with subsection 51.1, the Administrator will

establish one compliance account for each NOX

Budget unit and one overdraft account for each

source with one or more NOX Budget units.

Allocations of NOX allowances pursuant to

sections 40 through 42 and deductions or transfers

of NOX allowances pursuant to sections 31, 54 and

56 or sections 60 through 62 will be recorded in

the compliance accounts or overdraft accounts in

accordance with sections 50 through 57.

50.2. Nature and function of general accounts.

-- Consistent with subsection 51.2, the

Administrator will establish, upon request, a

general account for any person. Allocations of

NOX allowances pursuant to paragraph 4.2.d.2 or

subdivision 5.3.b and transfers of allowances

pursuant to sections 60 through 62 will be

recorded in the general accounts in accordance

with sections 50 through 57.

§45-26-51. Establishment of Accounts.

51.1. Compliance accounts and overdraft

accounts. -- Upon receipt of a complete account

certificate of representation under section 13, the

Administrator will establish:

51.1.a. A compliance account for each

NOX Budget unit for which the account certificate

of representation was submitted; and

51.1.b. An overdraft account for each

source for which the account certificate of

representation was submitted and that has two or

more NOX Budget units.

51.2. General accounts.

51.2.a. Any person may apply to open a

general account for the purpose of holding and

transferring allowances. 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:

51.2.a.1. Name, mailing address, e-mail

address (if any), telephone number and facsimile

transmission number (if any) of the NOX

authorized account representative and any

alternate NOX authorized account representative;

51.2.a.2. At the option of the NOX

authorized account representative organization

name and type of organization;

51.2.a.3. A list of all persons subject to

a binding agreement for the NOX authorized

account representative or any alternate NOX

authorized account representative to represent

their ownership interest with respect to the NOX

allowances held in the general account;

51.2.a.4. The following certification

statement by the NOX authorized account

representative and any alternate NOX authorized

account representative: “I certify that I was

selected as the NOX authorized account

representative or the NOX alternate authorized

account representative, as applicable, by an

agreement that is binding on all persons who have

an ownership interest with respect to NOX

allowances held in the general account. I certify

that I have all the necessary authority to carry out

my duties and responsibilities under the NOX

Budget Trading Program on behalf of such

persons and that each such person shall be fully

bound by my representations, actions, inactions or

submissions and by any order or decision issued to

me by the Administrator or a court regarding the

general account”;

51.2.a.5. The signature of the NOX

authorized account representative and any

alternate NOX authorized account representative

and the dates signed; and
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51.2.a.6. Unless otherwise required by

the Secretary or the Administrator, documents of

agreement referred to in the account certificate of

representation shall not be submitted to the

Secretary or the Administrator. Neither the

Secretary nor the Administrator shall be under any

obligation to review or evaluate the sufficiency of

such documents, if submitted.

51.2.b. Upon receipt by the Administrator

of a complete application for a general account

under subdivision 51.2.a:

51.2.b.1. The Administrator will

establish a general account for the person or

persons for whom the application is submitted;

51.2.b.2. The NOX authorized account

representative and any alternate NOX authorized

account representative for the general account

shall represent and, by his or her representations,

actions, inactions or submissions, legally bind

each person who has an ownership interest with

respect to NOX allowances held in the general

account in all matters pertaining to the NOX

Budget Trading Program, not withstanding any

agreement between the NOX authorized account

representative or any alternate NOX authorized

account representative and such person. Any such

person shall be bound by any order or decision

issued to the NOX authorized account

representative or any alternate NOX authorized

account representative by the Administrator or a

court regarding the general account;

51.2.b.3. Each submission concerning

the general account shall be submitted, signed and

certified by the NOX authorized account

representative or any alternate NOX authorized

account representative for the persons having an

ownership interest with respect to NOX allowances

held in the general account. Each such submission

shall include the following certification statement

by the NOX authorized account representative or

any alternate NOX authorized account

representative any: “I am authorized to make this

submission on behalf of the persons having an

ownership interest with respect to the NOX

allowances held in the general account. I certify

under penalty of law that I have personally

examined and am familiar with, the statements and

information submitted in this document and all its

attachments. Based on my inquiry of those

individuals with primary responsibility for

obtaining the information, I certify that the

statements and information are to the best of my

knowledge and belief true, accurate and complete.

I am aware that there are significant penalties for

submitting false statements and information or

omitting required statements and information,

including the possibility of fine or imprisonment”;

and

51.2.b.4. 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

51.2.b.3.

51.2.c.1. An application for a general

account may designate one and only one NOX

authorized account representative and one and

only one alternate NOX authorized account

representative who may act on behalf of the NOX

authorized account representative. The agreement

by which the alternate NOX authorized account

representative is selected shall include a procedure

for authorizing the alternate NOX authorized

account representative to act in lieu of the NOX

authorized account representative.

51.2.c.2. Upon receipt by the

Administrator of a complete application for a

general account under subdivision 51.2.a, any

representation, action, inaction or submission by

any alternate NOX authorized account

representative shall be deemed to be a

representation, action, inaction or submission by

the NOX authorized account representative.

51.2.d.1. The NOX authorized account

representative for a general account may be

changed at any time upon receipt by the

Administrator of a superseding complete

application for a general account under

subdivision 51.2.a. Notwithstanding any such

change, all representations, actions, inactions and

submissions by the previous NOX authorized

account representative prior to the time and date

when the Administrator receives the superseding
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application for a general account shall be binding

on the new NOX authorized account representative

and the persons with an ownership interest with

respect to the NOX allowances in the general

account.

51.2.d.2. The alternate NOX authorized

account representative for a general account may

be changed at any time upon receipt by the

Administrator of a superseding complete

application for a general account under

subdivision 51.2.a. Notwithstanding any such

change, all representations, actions, inactions and

submissions by the previous alternate NOX

authorized account representative prior to the time

and date when the Administrator receives the

superseding application for a general account shall

be binding on the new alternate NOX authorized

account representative and the persons with an

ownership interest with respect to the NOX

allowances in the general account.

51.2.d.3.A. In the event a new

person having an ownership interest with respect

to NOX allowances in the general account is not

included in the list of such persons in the account

certificate of representation, such new person shall

be deemed to be subject to and bound by the

account certificate of representation, the

representation, actions, inactions and submissions

of the NOX authorized account representative and

any alternate NOX authorized account

representative of the source or unit and the

decisions orders, actions and inactions of the

Administrator, as if the new person were included

in such list.

51.2.d.3.B. Within 30 days

following any change in the persons having an

ownership interest with respect to NOX allowances

in the general account, including the addition of

persons, the NOX authorized account

representative or any alternate NOX authorized

account representative shall submit a revision to

the application for a general account amending the

list of persons having an ownership interest with

respect to the NOX allowances in the general

account to include the change.

51.2.e.1. Once a complete application

for a general account under subdivision 51.2.a has

been submitted and received, the Administrator

will rely on the application unless and until a

superseding complete application for a general

account under subdivision 51.2.a is received by

the Administrator.

51.2.e.2. Except as provided in

subdivision 51.2.d, no objection or other

communication submitted to the Administrator

concerning the authorization or any representation,

action, inaction or submission of the NOX

authorized account representative or any alternate

NOX authorized account representative for a

general account shall affect any representation,

action, inaction or submission of the NOX

authorized account representative or any alternate

NOX authorized account representative or the

finality of any decision or order by the

Administrator under the NOX Budget Trading

Program.

51.2.e.3. The Administrator will not

adjudicate any private legal dispute concerning the

authorization or any representation, action,

inaction or submission of the NOX authorized

account representative or any alternate NOX

authorized account representative for a general

account, including private legal disputes

concerning the proceeds of NOX allowance

transfers.

51.3. Account identification. -- The

Administrator will assign a unique identifying

number to each account established under

subsections 51.1 or 51.2.

§45-26-52. NOX Allowance Tracking System

Responsibilities of NOX Authorized Account

Representative.

52.1. Following the establishment of a NOX

Allowance Tracking System account, all

submissions to the Administrator pertaining to the

account, including, but not limited to, submissions

concerning the deduction or transfer of NOX

allowances in the account, shall be made only by

the NOX authorized account representative for the

account.
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52.2. Authorized account representative

identification. -- The Administrator will assign a

unique identifying number to each NOX authorized

account representative.

§45-26-53. Recordation of NOX Allowance

Allocations.

53.1. The Administrator will record the NOX

allowances for 2004 for a NOX Budget unit

allocated under sections 40 through 42 in the

unit’s compliance account, except for NOX

allowances under paragraph 4.2.d.2 or subdivision

5.3.b which will be recorded in the general

account specified by the owners and operators of

the unit.

53.2. By May 1, 2003, the Administrator will

record the NOX allowances for 2005 for a NOX

Budget unit allocated under sections 40 through

42 in the unit’s compliance account, except for

NOX allowances under paragraph 4.2.d.2 or

subdivision 5.3.b, which will be recorded in the

general account specified by the owners and

operators of the unit.

53.3. By May 1, 2003, the Administrator will

record the NOX allowances for 2006 for a NOX

Budget unit allocated under sections 40 through

42 in the unit’s compliance account, except for

NOX allowances under paragraph 4.2.d.2 or

subdivision 5.3.b, which will be recorded in the

general account specified by the owners and

operators of the unit.

53.4. By May 1, 2004, the Administrator will

record the NOX allowances for 2007 for a NOX

Budget unit allocated under sections 40 through

42 in the unit’s compliance account, except for

NOX allowances under paragraph 4.2.d.2 or

subdivision 5.3.b, which will be recorded in the

general account specified by the owners and

operators of the unit.

53.5. Each year starting with 2005, after the

Administrator has made all deductions from a

NOX Budget unit's compliance account and the

overdraft account pursuant to section 54 (except

deductions pursuant to subdivision 54.4.b), the

Administrator will record:

53.5.a. NOX allowances, in the

compliance account, as allocated to the unit under

sections 40 through 42 for the third year after the

year of the ozone season for which such

deductions were or could have been made; and

53.5.b. NOX allowances, in the general

account specified by the owners and operators of

the unit, as allocated under paragraph 4.2.d.2 or

subdivision 5.3.b for the third year after the year

of the ozone season for which such deductions are

or could have been made. 

53.6. Serial numbers for allocated NOX

allowances. -- When allocating NOX allowances to

a NOX Budget unit and recording them in an

account, the Administrator will assign each NOX

allowance a unique identification number that will

include digits identifying the year for which the

NOX allowance is allocated.

§45-26-54. Compliance.

54.1. NOX allowance transfer deadline. -- The

NOX allowances are available to be deducted for

compliance with a unit’s NOX budget emissions

limitation for an ozone season in a given year only

if the NOX allowances:

54.1.a. Were allocated for an ozone

season in a prior year or the same year; and

54.1.b. Are held in the unit’s

compliance account or the overdraft account of the

source where the unit is located, as of the NOX

allowance transfer deadline for that ozone season

or are transferred into the compliance account or

overdraft account by a NOX allowance transfer

correctly submitted for recordation under section

60 by the NOX allowance transfer deadline for that

ozone season.

54.2. Deductions for compliance.

54.2.a. Following recordation in

accordance with section 61 of NOX allowance

transfers submitted for recordation in the unit’s

compliance account or the overdraft account of the

source where the unit is located by the NOX

allowance transfer deadline for an ozone season,
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the Administrator will deduct NOX allowances

available under subsection 54.1 to cover the unit’s

NOX emissions (as determined in accordance with

sections 70 through 76) or to account for actual

heat input under subdivision 42.5.a for the ozone

season:

54.2.a.1. From the compliance account;

and

54.2.a.2. Only if no more NOX

allowances available under subsection 54.1 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 NOX

Allowance Tracking System account number and

end with the unit having the compliance account

with the highest NOX Allowance Tracking System

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).

54.2.b. The Administrator will deduct

NOX allowances first under paragraph 54.2.a.1 and

then under paragraph 54.2.a.2:

54.2.b.1. Until the number of NOX

allowances deducted for the ozone season equals

the number of tons of NOX emissions, determined

in accordance with sections 70 through 76 from

the unit for the ozone season for which

compliance is being determined, plus the number

of NOX allowances required for deduction to

account for actual heat input under subdivision

42.5.a for the ozone season; or

54.2.b.2. Until no more NOX allowances

available under subsection 54.1 remain in the

respective account.

54.3.a. Identification of NOX allowances

by serial number. -- The NOX authorized account

representative for each compliance account may

identify by serial number the NOX allowances to

be deducted from the unit’s compliance account

under subsections 54.2, 54.4 or 54.5. Such

identification shall be made in the compliance

certification report submitted in accordance with

section 30.

54.3.b. First-in, first-out. -- The

Administrator will deduct NOX allowances for an

ozone season from the compliance account, in the

absence of an identification or in the case of a

partial identification of NOX allowances by serial

number under subdivision 54.3.a or the overdraft

account on a first-in, first-out (FIFO) accounting

basis in the following order:

54.3.b.1. Those NOX allowances that

were allocated for the ozone season to the unit

under sections 40 through 42;

54.3.b.2. Those NOX allowances that

were allocated for the ozone season to any unit

and transferred and recorded in the account

pursuant to sections 60 through 62, in order of

their date of recordation;

54.3.b.3. Those NOX allowances that

were allocated for a prior ozone season to the unit

under sections 40 through 42; and

54.3.b.4. Those NOX allowances that

were allocated for a prior ozone season to any unit

and transferred and recorded in the account

pursuant to sections 60 through 62, in order of

their date of recordation.

54.4. Deductions for excess emissions.

54.4.a. After making the deductions for

compliance under subsection 54.2, the

Administrator will deduct from the unit’s

compliance account or the overdraft account of the

source where the unit is located a number of NOX

allowances, allocated for an ozone season after the

ozone season in which the unit has excess

emissions, equal to three times the number of the

unit’s excess emissions.

54.4.b. If the compliance account or

overdraft account does not contain sufficient NOX

allowances, the Administrator will deduct the

required number of NOX allowances, regardless of

the ozone season for which they were allocated,
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whenever NOX allowances are recorded in either

account.

54.4.c. Any allowance deduction required

under subsection 54.4 shall not affect the liability

of the owners and operators of the NOX Budget

unit for any fine, penalty or assessment or their

obligation to comply with any other remedy, for

the same violation, as ordered under §22-5-1 et

seq. or the CAA. The following guidelines will be

followed in assessing fines, penalties or other

obligations:

54.4.c.1. For purposes of determining

the number of days of violation, if a NOX Budget

unit has excess emissions for an ozone season,

each day in the ozone season (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; and

54.4.c.2. Each ton of excess emissions

is a separate violation.

54.5. 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

sections 70 through 76:

54.5.a. The NOX authorized account

representative of the units may identify the

percentage of NOX allowances to be deducted

from each such unit’s compliance account to cover

the unit’s share of NOX emissions from the

common stack for an ozone season. Such

identification shall be made in the compliance

certification report submitted in accordance with

section 30; and

54.5.b. Notwithstanding paragraph

54.2.b.1, the Administrator will deduct NOX

allowances for each such unit until the number of

NOX allowances deducted equals the unit’s

identified percentage (under subdivision 54.5.a) of

the number of tons of NOX emissions, as

determined in accordance with sections 70 through

76, from the common stack for the ozone season

for which compliance is being determined or, if no

percentage is identified, an equal percentage for

each such unit plus the number of allowances

required for deduction to account for actual heat

input under subdivision 42.5.a for the ozone

season.

54.6. Deduction of banked allowances. --

Each year starting in 2005 or 2006 if the Secretary

determines the Administrator has approved or

promulgated this later date for purposes of

implementation under 40 CFR Part 96 or 40 CFR

Part 52 in any state with a compliance date of May

31, 2004, after the Administrator has completed

the designation of banked NOX allowances under

subdivision 55.1.b and before May 1 of the year,

the Administrator will determine the extent to

which banked NOX allowances otherwise available

under subsection 54.1 are available for compliance

in the ozone season for the current year, as

follows. The terms “compliance account,”

“overdraft account,” “general account,” “states”

and “trading budgets” in subdivision 54.6.a

through paragraph 54.6.c.2 shall be read to include

respectively: a compliance account, an overdraft

account, a general account, each state or portion of

a state, and the trading budget of each state or

portion of a state under the NOX Budget Trading

Program established, and approved and

administered by the Administrator pursuant to 40

CFR §51.121.

54.6.a. The Administrator will determine

the total number of banked NOX allowances held

in compliance accounts, overdraft accounts, or

general accounts;

54.6.b. If the total number of banked NOX

allowances determined under subdivision 54.6.a 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 budgets for

all states for the ozone season, any banked NOX

allowance may be deducted for compliance in

accordance with subsections 54.1 through 54.5.

54.6.c. If the total number of banked NOX

allowances determined under subdivision 54.6.a to

be held in compliance accounts, overdraft

accounts, or general accounts exceeds 10 percent

of the sum of the trading budgets for all states for
45CSR26

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the ozone season, any banked allowance may be

deducted for compliance in accordance with

subsections 54.1 through 54.5, except as follows:

54.6.c.1. The Administrator will

determine the following ratio: 0.10 multiplied by

the sum of the trading budgets for all states for the

ozone season and divided by the total number of

banked NOX allowances determined under

subdivision 54.6.a to be held in compliance

accounts, overdraft accounts, or general accounts;

and

54.6.c.2. The Administrator will

multiply the number of banked NOX allowances in

each compliance account or overdraft account by

the ratio determined under paragraph 54.6.c.1. 

The resulting product is the number of banked

NOX allowances in the account that may be

deducted for compliance in accordance with

subsections 54.1 through 54.5. Any banked NOX

allowances in excess of the resulting product may

be deducted for compliance in accordance with

subsections 54.1 through 54.5, except that, if such

NOX allowances are used to make a deduction

under subsections 54.2 or 54.5, two (rather than

one) such NOX allowances shall authorize up to

one ton of NOX emissions during the ozone season

and must be deducted for each deduction of one

NOX allowance required under subsections 54.2 or

54.5.

54.7. Recordation of deductions. -- The

Administrator will record in the appropriate

compliance account or overdraft account all

deductions from such an account pursuant to

subsections 54.2, 54.4, 54.5 or 54.6.

§45-26-55. NOX Allowance Banking.

55.1. NOX allowances may be banked for

future use or transfer in a compliance account, an

overdraft account or a general account, as follows:

55.1.a. Any NOX allowance that is held in

a compliance account, an overdraft account or a

general account will remain in such account unless

and until the NOX allowance is deducted or

transferred under sections 31, 54, 56 or sections 60

through 62; and

55.1.b. The Administrator will designate,

as a “banked” NOX allowance, any NOX allowance

that remains in a compliance account, an overdraft

account or a general account after the

Administrator has made all deductions for a given

ozone season from the compliance account or

overdraft account pursuant to section 54 (except

deductions pursuant to subdivision 54.4.b) and

that was allocated for that ozone season or an

ozone season in a prior year.

§45-26-56. Account Error.

56.1. The Administrator may, at his or her

sole discretion and on his or her own motion,

correct any error in any NOX Allowance Tracking

System account. Within 10 business days of

making such correction, the Administrator will

notify the NOX authorized account representative

for the account.

§45-26-57. Closing of General Accounts.

57.1. The NOX authorized account

representative of a general account may instruct

the Administrator to close the account by

submitting a statement requesting deletion of the

account from the NOX Allowance Tracking

System and by correctly submitting for

recordation under section 60 an allowance transfer

of all NOX allowances in the account to one or

more other NOX Allowance Tracking System

accounts.

57.2. If a general account shows no activity

for a period of a year or more and does not contain

any NOX allowances, the Administrator may

notify the NOX authorized account representative

for the account that the account will be closed and

deleted from the NOX Allowance Tracking System

following 20 business days after the notice is sent.

The account will be closed after the 20-day period

unless before the end of the 20-day period the

Administrator receives a correctly submitted

transfer of NOX allowances into the account under

section 60 or a statement submitted by the NOX

authorized account representative demonstrating

to the satisfaction of the Administrator good cause

as to why the account should not be closed.
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§45-26-60. Submission of NOX Allowance

Transfers.

60.1. The NOX authorized account

representatives seeking recordation of a NOX

allowance transfer shall submit the transfer to the

Administrator. To be considered correctly

submitted, the NOX allowance transfer shall

include the following elements in a format

specified by the Administrator:

60.1.a. The numbers identifying both the

transferor and transferee accounts;

60.1.b. A specification by serial number

of each NOX allowance to be transferred; and

60.1.c. The printed name and signature of

the NOX authorized account representative of the

transferor account and the date signed.

§45-26-61. Allowance Transfer Recordation.

61.1. Within 5 business days of receiving a

NOX allowance transfer, except as provided in

subsection 61.2, the Administrator will record a

NOX allowance transfer by moving each NOX

allowance from the transferor account to the

transferee account as specified by the request,

provided that:

61.1.a. The transfer is correctly submitted

under section 60; and

61.1.b. The transferor account includes

each NOX allowance identified by serial number in

the transfer.

61.2. A NOX allowance transfer that is

submitted for recordation following the NOX

allowance transfer deadline and that includes any

NOX allowances allocated for an ozone season

prior to or the same as the ozone season to which

the NOX allowance transfer deadline applies will

not be recorded until after the Administrator

completes the recordation of NOX allowances

under section 53, for the ozone season in the third

year after the NOX allowance transfer deadline.

61.3. Where a NOX allowance transfer

submitted for recordation fails to meet the

requirements of subsection 61.1, the Administrator

will not record such transfer.

§45-26-62. Notification.

62.1. Notification of recordation. -- Within 5

business days of recordation of a NOX allowance

transfer under section 61, the Administrator will

notify each party to the transfer. Notice will be

given to the NOX authorized account

representatives of both the transferor and

transferee accounts.

62.2. Notification of non-recordation. --

Within 10 business days of receipt of a NOX

allowance transfer that fails to meet the

requirements of subsection 61.1, the Administrator

will notify the NOX authorized account

representatives of both accounts subject to the

transfer of:

62.2.a. A decision not to record the

transfer; and

62.2.b. The reasons for such nonrecordation.

62.3. Nothing in this section shall preclude the

submission of a NOX allowance transfer for

recordation following notification of nonrecordation.

§45-26-70. General Monitoring Requirements.

The owners and operators and to the extent

applicable, the NOX authorized account

representative of a NOX Budget unit, shall comply

with the monitoring, recordkeeping and reporting

requirements as provided in sections 70 through

76 and subpart H of 40 CFR Part 75. For

purposes of complying with such requirements,

the definitions in section 2 and in 40 CFR §72.2

shall apply, and the terms “affected unit,”

“designated representative,” and “continuous

emission monitoring system” (or “CEMS”) in 40

CFR Part 75 shall be replaced by the terms “NOX

Budget unit,” “NOX authorized account

representative,” and “continuous emission

monitoring system” (or “CEMS”) respectively, as
45CSR26

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defined section 2. The owner or operator of a unit

that is not a NOX Budget unit but that is monitored

under 40 CFR §75.72(b)(2)(ii) shall comply with

the monitoring, recordkeeping and reporting

requirements for a NOX Budget unit.

70.1. Requirements for installation,

certification and data accounting. -- The owner or

operator of each NOX Budget unit shall meet the

following requirements:

70.1.a. Install all monitoring systems

required under this subpart for monitoring NOX

mass emissions. This includes all systems

required to monitor NOX emission rate, NOX

concentration, heat input rate and stack flow rate,

in accordance with 40 CFR §75.71 and 40 CFR

§75.72;

70.1.b. Install all monitoring systems for

monitoring heat input rate.

70.1.c. Successfully complete all

certification tests required under section 71 and

meet all other requirements of sections 70 through

76 and 40 CFR Part 75 applicable to the

monitoring systems under subdivisions 70.1.a and

70.1.b; and

70.1.d. Record, report and quality-assure

the data from the monitoring systems under

subdivisions 70.1.a and 70.1.b.

70.2. Compliance deadlines. -- The owner or

operator shall meet the certification and other

requirements of subdivisions 70.1.a through 70.1.c

on or before the following dates. The owner or

operator shall record, report and quality-assure the

data from the monitoring systems under

subdivisions 70.1.a and 70.1.b on and after the

following dates:

70.2.a. For the owner or operator of a

NOX Budget unit for which the owner or operator

intends to apply for early reduction credits under

section 43, by May 1, 2001. If the owner or

operator of a NOX Budget unit fails to meet this

deadline, he or she is not eligible to apply for early

reduction credits and is subject to the deadline

under subdivision 70.2.b;

70.2.b. For the owner or operator of a

NOX Budget unit under subsection 4.1 that

commences operation before January 1, 2003 and

that is not subject to or does not meet the deadline

under subdivision 70.2.a, by May 1, 2003;

70.2.c. For the owner or operator of a

NOX Budget unit under subsection 4.1 that

commences operation on or after January 1, 2003

and that reports on an annual basis under section

74.4 by the later of the following dates:

70.2.c.1. May 1, 2003; or

70.2.c.2. 90 days after the date on which

the unit commences commercial operation.

70.2.d. For the owner or operator of a

NOX Budget unit under subsection 4.1 that

commences operation on or after January 1, 2003

and that reports on an ozone season basis under

paragraph 74.4.b.2, by no later than 90 days after

the date on which the unit commences commercial

operation, provided that this date is during an

ozone season. If this date does not occur during

an ozone season, the applicable deadline is May 1

immediately following this date.

70.2.e. Reserved.

70.2.f. Reserved.

70.2.g. For the owner or operator of a

NOX Budget unit that has a new stack or flue for

which construction is completed after the

applicable deadline under subdivisions 70.2.a,

70.2.b, 70.2.c or 70.2.d and that reports on an

annual basis under subsection 74.4, by 90 days

after the date on which emissions first exit to the

atmosphere through the new stack or flue; and

70.2.h. For the owner or operator of a

NOX Budget unit that has a new stack or flue for

which construction is completed after the

applicable deadline under subdivisions 70.2.a,

70.2.b, 70.2.c or 70.2.d and that reports on an

ozone season basis under paragraph 74.4.b.2, by

90 days after the date on which emissions first exit

to the atmosphere through the new stack or flue,

provided that this date is during an ozone season.
45CSR26

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If this date does not occur during the ozone

season, the applicable deadline is May 1

immediately following this date.

70.3. Reporting data prior to initial

certification. -- The owner or operator of a NOX

Budget unit under subdivisions 70.2.c or 70.2.d

shall determine, record and report NOX mass

emissions, heat input rate and any other values

required to determine NOX mass emissions (e.g.,

NOX emission rate and heat input rate, or NOX

concentration and stack flow rate) in accordance

with 40 CFR §75.70(g), from the date and hour

that the unit starts operating until the date and

hour on which the continuous emission monitoring

system, excepted monitoring system under

appendix D or E of 40 CFR Part 75, or excepted

monitoring methodology under 40 CFR §75.19 is

provisionally certified.

70.4. Prohibitions.

70.4.a. No owner or operator of a NOX

Budget unit shall use any alternative monitoring

system, alternative reference method or any other

alternative for the required continuous emission

monitoring system without having obtained prior

written approval in accordance with section 75.

70.4.b. No owner or operator of a NOX

Budget unit shall operate the unit so as to

discharge, or allow to be discharged, NOX

emissions to the atmosphere without accounting

for all such emissions in accordance with the

applicable provisions of sections 70 through 76

and 40 CFR Part 75, except as provided in 40 CFR

§75.74.

70.4.c. No owner or operator of a NOX

Budget unit shall disrupt the continuous emission

monitoring system, any portion thereof, or any

other approved emission monitoring method and

thereby avoid monitoring and recording NOX mass

emissions discharged into the atmosphere, except

for periods of recertification or periods when

calibration, quality assurance testing or

maintenance is performed in accordance with the

applicable provisions of sections 70 through 76

and 40 CFR Part 75 or except as provided in 40

CFR §75.74.

70.4.d. No owner or operator of a NOX

Budget unit shall retire or permanently discontinue

use of the continuous emission monitoring system,

any component thereof, or any other approved

emission monitoring system under sections 70

through 76, except under any one of the following

circumstances:

70.4.d.1. During the period that the unit

is covered by an exemption under subdivision

4.2.a or section 5 that is in effect;

70.4.d.2. The owner or operator is

monitoring emissions from the unit with another

certified monitoring system approved, in

accordance with the applicable provisions of

sections 70 through 76 and 40 CFR Part 75, by the

Secretary for use at that unit that provides

emission data for the same pollutant or parameter

as the retired or discontinued monitoring system;

or

70.4.d.3. The NOX authorized account

representative submits notification of the date of

certification testing of a replacement monitoring

system for the retired or discontinued monitoring

system in accordance with subdivision 71.2.b.

§45-26-71. Initial Certification and

Recertification Procedures.

71.1. The owner or operator of a NOX Budget

unit that is subject to an Acid Rain emissions

limitation shall comply with the initial

certification and recertification procedures of 40

CFR Part 75, except that:

71.1.a. If, prior to January 1, 1998, the

Administrator approved a petition under 40 CFR

§75.17(a) or (b) for apportioning the NOX

emission rate measured in a common stack or a

petition under 40 CFR §75.66 for an alternative to

a requirement in 40 CFR §75.17, the NOX

authorized account representative shall resubmit

the petition to the Administrator under subsection

75.1 to determine if the approval applies under the

NOX Budget Trading Program; and

71.1.b. For any additional CEMS

required under the common stack provisions in 40
45CSR26

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CFR §75.72 or for any NOX concentration CEMS

used under the provisions of 40 CFR §75.71(a)(2),

the owner or operator shall meet the requirements

of subsection 71.2.

71.2. The owner or operator of a NOX Budget

unit that is not subject to an Acid Rain emissions

limitation shall comply with the following initial

certification and recertification procedures. The

owner or operator of such a unit that qualifies to

use the low mass emissions excepted monitoring

methodology under 40 CFR §75.19 or that

qualifies to use an alternative monitoring system

under subpart E of 40 CFR Part 75 shall comply

with the following procedures, as modified by

subsections 71.3 or 71.4. The owner or operator

of a NOX Budget unit that is subject to an Acid

Rain emissions limitation and that requires

additional CEMS under the common stack

provisions in 40 CFR §75.72 or uses a NOX

concentration CEMS under 40 CFR §75.71(a)(2)

shall comply with the following procedures:

71.2.a. Requirements for initial

certification. -- The owner or operator shall ensure

that each monitoring system required by subpart H

of 40 CFR Part 75 (which includes the automated

data acquisition and handling system) successfully

completes all of the initial certification testing

required under 40 CFR §75.20 by the applicable

deadline in subsection 70.2. In addition,

whenever the owner or operator installs a

monitoring system in order to meet the

requirements of this rule in a location where no

such monitoring system was previously installed,

initial certification in accordance with 40 CFR

§75.20 is required;

71.2.b. Requirements for recertification.

– Whenever the owner or operator makes a

replacement, modification or change in a certified

monitoring system that may significantly affect

the ability of the system to accurately measure or

record NOX mass emissions or heat input rate or to

meet the requirements of 40 CFR §75.21 or

appendix B to 40 CFR Part 75, the owner or

operator shall recertify the monitoring system in

accordance with 40 CFR §75.20(b). 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 40 CFR §75.20(b).

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; and

71.2.c. Certification approval process for

initial certification and recertification.

71.2.c.1. Notification of certification. --

The NOX authorized account representative shall

submit to the Administrator, EPA Region III and

the Secretary written notice of the dates of

certification in accordance with section 73.

71.2.c.2. Certification application. --

The NOX authorized account representative shall

submit to the Administrator, EPA Region III and

the Secretary a certification application for each

monitoring system required under subpart H of 40

CFR Part 75. A complete certification application

shall include the information specified in subpart

H of 40 CFR Part 75.

71.2.c.3. Except for units using the low

mass emission excepted methodology under 40

CFR §75.19, the provisional certification date for

a monitor shall be determined in accordance with

40 CFR §75.20(a)(3). A provisionally certified

monitor may be used under the NOX Budget

Trading Program for a period not to exceed 120

days after receipt by the Secretary of the complete

certification application for the monitoring system

or component thereof under paragraph 71.2.c.2.

Data measured and recorded by the provisionally

certified monitoring system or component thereof,

in accordance with the requirements of 40 CFR

Part 75, will be considered valid quality-assured

data (retroactive to the date and time of

provisional certification), provided that the

Secretary does not invalidate the provisional

certification by issuing a notice of disapproval

within 120 days of receipt of the complete

certification application by the Secretary.
45CSR26

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71.2.c.4. Certification application

formal approval process. -- The Secretary 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

71.2.c.2. In the event the Secretary does not issue

such a notice within such 120-day period, each

monitoring system that meets the applicable

performance requirements of 40 CFR Part 75 and

is included in the certification application will be

deemed certified for use under the NOX Budget

Trading Program.

71.2.c.4.A. Approval notice. -- If

the certification application is complete and shows

that each monitoring system meets the applicable

performance requirements of 40 CFR Part 75, then

the Secretary will issue a written notice of

approval of the certification application within 120

days of receipt.

71.2.c.4.B. Incomplete application

notice. -- A certification application will be

considered complete when all of the applicable

information required to be submitted under

paragraph 71.2.c.2 has been received by the

Secretary. If the certification application is not

complete, then the Secretary will issue a written

notice of incompleteness that sets a reasonable

date by which the NOX authorized account

representative must submit the additional

information required to complete the certification

application. If the NOX authorized account

representative does not comply with the notice of

incompleteness by the specified date, then the

Secretary may issue a notice of disapproval under

subparagraph 71.2.c.4.C. The 120-day review

period shall not begin prior to receipt of a

complete certification application.

71.2.c.4.C. Disapproval notice. -- If

the certification application shows that any

monitoring system or component thereof does not

meet the performance requirements of sections 70

through 76, or if the certification application is

incomplete and the requirement for disapproval

under subparagraph 71.2.c.4.B has been met, then

the Secretary 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

Secretary and the data measured and recorded by

each uncertified monitoring system or component

thereof shall not be considered valid

quality-assured data beginning with the date and

hour of provisional certification (as defined under

40 CFR §75.20(a)(3)). The owner or operator

shall follow the procedures for loss of certification

in paragraph 71.2.c.5 for each monitoring system

or component thereof that is disapproved for

initial certification.

71.2.c.4.D. Audit decertification. --

The Secretary may issue a notice of disapproval of

the certification status of a monitor in accordance

with subsection 72.2.

71.2.c.5. Procedures for loss of

certification. -- If the Secretary issues a notice of

disapproval of a certification application under

subparagraph 71.2.c.4.C or a notice of disapproval

of certification status under subparagraph

71.2.c.4.D, then:

71.2.c.5.A. The owner or operator

shall substitute the following values, for each hour

of unit operation during the period of invalid data

specified under 40 CFR §75.20(a)(4)(iii), 40 CFR

§75.20(h)(4) or 40 CFR §75.21(e) and continuing

until the date and hour specified under 40 CFR

§75.20(a)(5)(i):

71.2.c.5.A.1. For units that the

owner or operator intends to monitor or monitors

for NOX emission rate and heat input rate or

intends to determine or determines NOX mass

emissions using the low mass emission excepted

methodology under 40 CFR §75.19, the maximum

potential NOX emission rate and the maximum

potential hourly heat input of the unit; and

71.2.c.5.A.2. For units that the

owner or operator intends to monitor or monitors

for NOX mass emissions using a NOX pollutant

concentration monitor and a flow monitor, the

maximum potential concentration of NOX and the

maximum potential flow rate of the unit under

section 2 of appendix A of 40 CFR Part 75.
45CSR26

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71.2.c.5.B. The NOX authorized

account representative shall submit a notification

of certification retest dates and a new certification

application in accordance with paragraphs 71.2.c.1

and 71.2.c.2; and

71.2.c.5.C. The owner or operator

shall repeat all certification tests or other

requirements that were failed by the monitoring

system, as indicated in the Secretary’s notice of

disapproval, no later than 30 unit operating days

after the date of issuance of the notice of

disapproval.

71.3. Initial certification and recertification

procedures for low mass emission units using the

excepted methodologies under 40 CFR §75.19. --

The owner or operator of a gas-fired or oil-fired

unit using the low mass emissions excepted

methodology under 40 CFR §75.19 and not

subject to an Acid Rain emissions limitation shall

meet the applicable general operating

requirements of 40 CFR §75.10 and the applicable

requirements of 40 CFR §75.19. The owner or

operator of such a unit shall also meet the

applicable certification and recertification

procedures of subsection 71.2, except that the

excepted methodology shall be deemed

provisionally certified for use under the NOX

Budget Trading Program as of the following dates:

71.3.a. For a unit that does not have

monitoring equipment initially certified or

recertified for the NOX Budget Trading Program

as of the date on which the NOX authorized

account representative submits the certification

application under 40 CFR §75.19 for the unit,

starting on the date of such submission until the

completion of the period for the Secretary’s

review;

71.3.b. For a unit that has monitoring

equipment initially certified or recertified for the

NOX Budget Trading Program as of the date on

which the NOX authorized account representative

submits the certification application under 40 CFR

§75.19 for the unit and that reports data on an

annual basis under subsection 74.4, starting

January 1 of the year after the year of such

submission until the completion of the period for

the Secretary’s review; and

71.3.c. For a unit that has monitoring

equipment initially certified or recertified for the

NOX Budget Trading Program as of the date on

which the NOX Authorized Account

Representative submits the certification

application under 40 CFR §75.19 for the unit and

that reports on a control season basis under

subsection 74.4, starting May 1 of the ozone

season after the year of such submission until the

completion of the period for the Secretary’s

review.

71.4. Certification/recertification procedures

for alternative monitoring systems. -- The NOX

authorized account representative of each unit not

subject to an Acid Rain emissions limitation for

which the owner or operator intends to use an

alternative monitoring system approved by the

Administrator under subpart E of 40 CFR Part 75

shall comply with the applicable certification

procedures of subsection 71.2 before using the

system under the NOX Budget Trading Program.

The NOX authorized account representative shall

also comply with the applicable recertification

procedures of subsection 71.2 and 40 CFR

§75.20(f).

§45-26-72. Out of Control Periods.

72.1. Whenever any monitoring system fails

to meet the quality assurance or data validation

requirements of 40 CFR Part 75, data shall be

substituted using the applicable procedures in

subpart D, appendix D, or appendix E of 40 CFR

Part 75.

72.2. Audit decertification. -- Whenever both

an audit of a monitoring system and a review of

the initial certification or recertification

application reveal that any system or component

should not have been certified or recertified

because it did not meet a particular performance

specification or other requirement under section

71 or the applicable provisions of 40 CFR Part 75,

both at the time of the initial certification or

recertification application submission and at the

time of the audit, the Secretary will issue a notice

of disapproval of the certification status of such
45CSR26

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system or component. For the purposes of this

subsection, an audit shall be either a field audit or

an audit of any information submitted to the

Secretary or the Administrator. By issuing the

notice of disapproval, the Secretary revokes

prospectively the certification status of the system

or component. The data measured and recorded

by the system or component 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 or component.

§45-26-73. Notifications.

73.1. The NOX authorized account

representative for a NOX Budget unit shall submit

written notice to the Administrator, EPA Region

III and the Secretary in accordance with 40 CFR

§75.61.

73.2. For any unit that does not have an Acid

Rain emissions limitation, the Secretary may

waive the requirement to notify the Administrator

and EPA Region III in subsection 73.1.

§45-26-74. Recordkeeping and Reporting.

74.1. General provisions.

74.1.a. The NOX authorized account

representative shall comply with all recordkeeping

and reporting requirements in this section and with

the requirements of subdivision 10.5.a.

74.1.b. If the NOX authorized account

representative for a NOX Budget unit subject to an

Acid Rain emission limitation who signed and

certified any submission that is made under

subpart F or G of 40 CFR Part 75 and that

includes data and information required under

sections 70 through 76 or subpart H of 40 CFR

Part 75 is not the same person as the designated

representative or the alternative designated

representative for the unit under 40 CFR Part 72,

then the submission must also be signed by the

designated representative or the alternative

designated representative.

74.2. Monitoring Plans.

74.2.a. The owner or operator of a unit

subject to an Acid Rain emissions limitation shall

comply with requirements of 40 CFR §75.62,

except that the monitoring plan shall also include

all of the information required by subpart H of 40

CFR Part 75.

74.2.b. The owner or operator of a unit

that is not subject to an Acid Rain emissions

limitation shall comply with requirements of 40

CFR §75.62, except that the monitoring plan is

only required to include the information required

by subpart H of 40 CFR Part 75.

74.3. Certification applications. -- The NOX

authorized account representative shall submit an

application to the Administrator, EPA Region III

and the Secretary within 45 days after completing

all initial certification or recertification tests

required under section 71 including the

information required under subpart H of 40 CFR

Part 75.

74.4. Quarterly reports. -- The NOX authorized

account representative shall submit quarterly

reports, as follows: 

74.4.a. If a unit is subject to an Acid Rain

emission limitation or if the owner or operator of

the NOX Budget unit chooses to meet the annual

reporting requirements of sections 70 through 76,

the NOX authorized account representative shall

submit a quarterly report for each calendar quarter

beginning with:

74.4.a.1. For a unit for which the owner

or operator intends to apply or applies for the early

reduction credits under section 43, the calendar

quarter that includes the date of initial provisional

certification under paragraph 71.2.c.3 or

subsection 71.3. Data shall be recorded and

reported from the date and hour corresponding to

the date and hour of provisional certification; or

74.4.a.2. For a unit that commences

operation on or before May 1, 2003 and is not

subject to paragraph 74.4.a.1, the earlier of the

calender quarter that includes the date of initial
45CSR26

39

provisional certification under paragraph 71.2.c.3

or subsection 71.3 or, if the certification tests are

not completed by May 1, 2003, the calendar

quarter covering May 1, 2003 through June 30,

2003. Data shall be recorded and reported from

the earlier of the date and hour corresponding to

the date and hour of provisional certification or the

first hour on May 1, 2003; or

74.4.a.3. For a unit that commences

operation after May 1, 2003, the calendar quarter

in which the unit commences operation. Data

shall be recorded and reported from the date and

hour corresponding to when the unit commences

operation;

74.4.b. If a NOX Budget unit is not

subject to an Acid Rain emission limitation, then

the NOX authorized account representative shall

either:

74.4.b.1. Meet all of the requirements of

40 CFR Part 75 related to monitoring and

reporting NOX mass emissions during the entire

year and meet the deadlines specified in

subdivision 74.4.a; or

74.4.b.2. Submit quarterly reports

covering the period May 1 through September 30

of each year and including the data described in 40

CFR §75.74(c)(6). The NOX authorized account

representative shall submit such quarterly reports,

beginning with:

74.4.b.2.A. For a unit for which the

owner or operator intends to apply or applies for

early reduction credits under section 43, the

calendar quarter that includes the date of initial

provisional certification under paragraph 71.2.c.3

or subsection 71.3. Data shall be recorded and

reported from the date and hour corresponding to

the date and hour of provisional certification; or

74.4.b.2.B. For a unit that

commences operation on or before May 1, 2003

and that is not subject to paragraph 74.4.b.1, the

calendar quarter covering May 1 through June 30,

2003. Data shall be recorded and reported from

the earlier of the date and hour corresponding to

the date and hour of initial provisional

certification under paragraph 71.2.c.3 or

subsection 71.3 or the first hour of May 1, 2003;

or

74.4.b.2.C. For a unit that

commences operation after May 1, 2003 and

during an ozone season, the calendar quarter in

which the unit commences operation. Data shall

be reported from the date and hour corresponding

to when the unit commences operation; or

74.4.b.2.D. For a unit that

commences operation after May 1, 2003 and not

during an ozone season, the calendar quarter

covering the first ozone season after the unit

commences operation. Data shall be recorded and

reported from the earlier of the date and hour

corresponding to the date and hour of initial

provisional certification under paragraph 71.2.c.3

or subsection 71.3 or the first hour of May 1 of the

first ozone season after the unit commences

operation;

74.4.c. The NOX authorized account

representative shall submit each quarterly report to

the Administrator within 30 days following the

end of the calendar quarter covered by the report.

Quarterly reports shall be submitted in the manner

specified in subpart H of 40 CFR Part 75 and 40

CFR §75.64.

74.4.c.1. For units subject to an Acid

Rain emissions limitation, quarterly reports shall

include all of the data and information required in

subpart H of 40 CFR Part 75 for each NOX Budget

unit (or group of units using a common stack) and

the data and information required in subpart G of

40 CFR Part 75. 

74.4.c.2. 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 40 CFR Part

75 for each NOX Budget unit (or group of units

using a common stack); and 

74.4.d. Compliance certification. -- The

NOX authorized account representative shall

submit to the Administrator a compliance

certification in support of each quarterly report
45CSR26

40

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:

74.4.d.1. The monitoring data submitted

were recorded in accordance with the applicable

requirements of sections 70 through 76 and 40

CFR Part 75, including the quality assurance

procedures and specifications;

74.4.d.2. For a unit with add-on NOX

emission controls and for all hours where data are

substituted in accordance with 40 CFR

§75.34(a)(1), the add-on emission controls were

operating within the range of parameters listed in

the quality assurance/quality control program

under appendix B of 40 CFR Part 75 and the

substitute values do not systematically

underestimate NOX emissions; and

74.4.d.3. For a unit that is reporting on

an ozone season basis under paragraph 74.4.b.2,

the NOX emission rate and NOX concentration

values substituted for missing data under subpart

D of 40 CFR Part 75 are calculated using only

values from an ozone season and do not

systematically underestimate NOX emissions.

§45-26-75. Petitions.

75.1. The NOX authorized account

representative of a NOX Budget unit that is subject

to an Acid Rain emissions limitation may submit

a petition under 40 CFR §75.66 to the

Administrator requesting approval to apply an

alternative to any requirement of sections 70

through 76.

75.1.a. Application of an alternative to

any requirement of sections 70 through 76 is in

accordance with sections 70 through 76 only to

the extent that the petition is approved by the

Administrator, in consultation with the Secretary.

75.1.b. Notwithstanding subdivision

75.1.a of this section, if the petition requests

approval to apply an alternative to a requirement

concerning any additional CEMS required under

the common stack provisions of 40 CFR §75.72,

the petition is governed by subsection 75.2.

75.2. The NOX authorized account

representative of a NOX Budget unit that is not

subject to an Acid Rain emissions limitation may

submit a petition under 40 CFR §75.66 to the

Secretary and the Administrator requesting

approval to apply an alternative to any

requirement of sections 70 through 76.

75.2.a. The NOX authorized account

representative of a NOX Budget unit that is subject

to an Acid Rain emissions limitation may submit

a petition under 40 CFR §75.66 to the Secretary

and the Administrator requesting approval to

apply an alternative to a requirement concerning

any additional CEMS required under the common

stack provisions of 40 CFR §75.72 or a NOX

concentration CEMS used under 40 CFR

§75.71(a)(2).

75.2.b. Application of an alternative to

any requirement of sections 70 through 76 is in

accordance with sections 70 through 76 only to

the extent the petition under subsection 75.2 is

approved by both the Secretary and the

Administrator.

§45-26-76. Additional Requirements to

Provide Heat Input Data.

76.1. The owner or operator of a NOX Budget

unit that monitors and reports NOX mass emissions

using a NOX concentration system and a flow

system shall also monitor and report heat input

rate at the unit level using the procedures set forth

in 40 CFR Part 75.
DEPARTMENT OF ENVIRONMENTAL PROTECTION

DIVISION OF AIR QUALITY

BRIEFING DOCUMENT

Rule Title: 45CSR26 - “NOX Budget Trading Program as a Means of Control and

Reduction of Nitrogen Oxides from Electric Generating Units”

A. AUTHORITY: W.Va. Code §22-5-4

B. SUMMARY OF RULE:

The Department of Environmental Protection is proposing to repeal NOX SIP Call

rule 45CSR26. This rule contains ozone season NOX reduction requirements which apply to

electric generating units which have an electric generating capacity greater than 250

megawatts.

C. STATEMENT OF CIRCUMSTANCES WHICH REQUIRE RULE:

This rule is being repealed pursuant to a requirement under the federal Clean Air

Interstate Rule (CAIR), as the CAIR ozone season NOX reduction program under 45CSR40

will subsume the NOX SIP Call program as of May 1, 2009. However, on July 11, 2008, the

D.C. Court of Appeals rendered a decision to vacate CAIR. The DEP acknowledges the

intimate relationship between 45CSR1, 45CSR26 and the seasonal NOx component of the

CAIR. The DEP intends to withdraw the repeals of 45CSR1 and 45CSR26 if the relevant

requirements of CAIR cannot be salvaged in a timely manner. However, because of the

extension of the time to file petitions for rehearing or rehearing en banc, a mandate to vacate

the Clean Air Interstate Rule (CAIR) has not yet been ordered by the U.S. District Court of

Appeals. Therefore the vacatur is not in effect at this time. There remains considerable

uncertainty regarding the CAIR vacatur and its substantial ramifications. This issue has

attracted national attention and could result in potential congressional action. DEP believes

it prudent to wait until a more definitive indication of CAIR’s fate is recognized. Depending

on future information regarding the vacatur of CAIR, the department may subsequently

withdraw the proposed repeal of 45CSR1 in accordance with WV Code §29A-3-14.

D. FEDERAL COUNTERPART REGULATIONS - INCORPORATION BY

REFERENCE/DETERMINATION OF STRINGENCY:

Because repeal of the rule is a federal requirement under CAIR, no determination of

stringency is required.
Briefing Document

45CSR26

Page 2

E. CONSTITUTIONAL TAKINGS DETERMINATION:

In accordance with W.Va. Code §§22-1A-1 and 3(c), the Secretary has determined

that the repeal of this rule will not result in taking of private property within the meaning of

the Constitutions of West Virginia and the United States of America.

F. CONSULTATION WITH THE ENVIRONMENTAL PROTECTION

ADVISORY COUNCIL:

At its June 24, 2008 meeting, the Environmental Protection Advisory Council

reviewed and discussed this rule. (See attached minutes for Council’s discussion).
APPENDIX B 

FISCAL NOTE FOR PROPOSED RULES 

Rule Title: 45CSR26 - NOx Budget Trading Program as a Means of Control and 

Reduction of Nitrogen Oxides from Electric Generating Units 

Type of Rule: X Legislative Interpretive Procedural 

Agency: Division of Air Quality 

Address: 601 57th Street SE 

Charleston, WV 25304 ..-I 'c">? . 1- ": 

' 

Phone Number: 926-0499 ext. 1237 <** Email: tmowrerfi,wvdep.org 

Fiscal Note Summary 

Summarize in a clear and concise manner what impact this measure 

will have on costs and revenues of state government. 

The Department of Environmental Protection, Division of Air Quality, is proposing to 

repeal 45CSR26, as the NOx Budget Trading Program will be subsumed by the Clean 

Air Interstate Rule under 45CSR40 on May 1, 2009. The proposed repeal of this rule 

should cause no additional impact on costs and revenues of state government. 

Fiscal Note Detail 

Show over-all effect in Item 1 and 2 and, in Item 3, give an explanation of 

Breakdown by fiscal year, including long-range effect. 

FISCAL YEAR 

Fiscal Year 

(Upon Full Implementation) 

O 

0 

0 

0 

0 

2010 

IncreaseDecrease 

(use "-I1) 

0 

Effect of Proposal 

1. Estimated Total Cost 

Personal Services 

2009 

IncreaseDecrease 

(use "-") 

$0 

0 

Other 

2. Estimated Total Revenues 

Current Expenses 

Repairs & Alterations 

Assets 

0 

0 

0 

0 

0 

A pp - - -- - - 

0 

0 

0 

0 

- 

0 

- 

0 0 
Rule Title: 45CSR26 - NOx Budget Trading Program as a Means of Control and 

Reduction of ~iiogen Oxides from Electric Generating Units 

3. Explanation of above estimates (including long-range effect): 

Please include any increase or decrease in fees in your estimated total revenues. 

The proposed repeal of this rule will have no effect on the costs to the Division of Air 

Quality. Refer to above explanation. 

MEMORANDUM 

Please identify any areas of vagueness, technical defects, reasons the proposed 

rule would not have a fiscal impact, andlor any special issues not captured elsewhere on 

this form. 
WEST VIRGINIA I -- Do Not Mark In This Box 

SECRETARY OF STATE e.3 !-- - * it.. ILL, b'b '!i* - -3 : , 1;: 

Form #1 

--------------------------- 

ADMINISTRATIVE 

NOTICE 

Betty 

OF 

Ireland 

A 

LAW 

PUBLIC 

DIVISION 

HEARING ON A PROPOSED RULE 

- - 

AGENCY: WV Department of Environmental Protection, Division of Air Quality TITLE NUMBER: 45 

RULE TYPE: Legislative CITE AUTHORITY: 

AMENDMENT TO AN EXISTING RULE: YESLEI NO Ecl--J 

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 45CSR26 

TITLE OF RULE BEING AMENDED:& & AL - x et a i 

Nitrogen Oxides from Electric Generating Units 

IF NO, SERIES NUMBER OF RULE BENG PROPOSED: 

TITLE OF RULE BEING PROPOSED: 

DATE OF PUBLIC HEARING: Monday, August 1 1,2008 TIME: 6:00 p.m. 

LOCATION OF PUBLIC HEARING: WV Department of Environmental Protection 

Coovers Rock Conference Room 

601 57th Street, S.E. 

DATE WRITTEN COMMENT PERIOD ENDS: August "7 *Oo8 TIME: At close of hearing 

WRITTEN COMMENTS MAY BE MAILED TO: 

The Department requests that persons wishing to make WV Devartment of Environmental Protection 

comments at the hearing make an effort to &8&6&i@8 Ru 1 t3 - hi! a k i fl g 601 57th Street, S.E. 

comments in order to facilitate the review of these comments. Charleston. WV 25304 

The Issues to be heard shall be l~mited to the proposed qlie: I - 1 4jt!fj 

ATTACH A BRIEF SUMMARY OF YOUR P T68k&b Committse 
~:r:{i~~-!~~\rr: ~TI~T-

~_\... r , ,_" .lll -v. V II![

F #3

- ..~..[ rr-' ! ' ;~:'I \ j:r.""I\, !' A

_ ~m _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ vii"',,! J ll[,)} 'ilhl'r' 1,-",

NOTICE OF AGENCY APPROVAL OF A PROPOSED JULE

AND I

FILING WITH THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE

AGENCY: WV Department of Environmental Protection, Division of Air Quality ITITLE NUMBER:

I

-

CITE AUTHORITY: W_' V_a_C_o_d_e , §_2_2-_5-_4 ---+ _

I

WEST VIRGINIA

SECRETARY OF STATE

BETTY IRELAND

ADMINISTRATIVE LAW DIVISION

AMENDMENT TO AN EXISTING RULE: YES~ NO __

IF YES, SERIES NUMBER OF RULE BEING AMENDED: 2_6 __

2008 AUG 29 Ad 1/: 00

45

TITLE OF RULE BEING AMENDED: REPEAL - NOx Budget Trading PrograJ;ll as a Means of Control and

Reduction of Nitrogen Oxides from Electric Generating Units

, I

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: --+- _

I

-------------------------------r--------------

~:~~E~v::e:~~~:~~::~:L::;~~

THE SECRETARY OF STATE AND THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE FOR

THEIR REVIEW.

Legislative Rule-Making

4 JG 2 9 2008

Review Committee
WEST VIRGINIA

SECRETARY OF STATE

NATALIE E. TENNANT

ADMINISTRATIVE LAW DIVISION

Do Not Mark In This Box

------- Form #6 --L-_-----l _

o ir'l: \M}.:(l'; \J>n'G'i"j,!I'" 10..)1.... 1 V l.-.\.. I r L .t t I~

S CRETARY OF STATE

NOTICE OF FINAL FILING AND ADOPTION OF A LEGISLATIV RULE AUTHORIZED

BY THE WEST VIRGINIA LEGISLATURE

AGENCY: WV Department of Environmental Protection, Division of Air Quality

AMENDMENT TO AN EXISTING RULE: YES l NO_

45

26

IF NO, SERIES NUMBER OF RULE BEING PROPOSED: _

TITLE OF RULE BEING PROPOSED: i-- _

- I

THE ABOVE RULE HAS BEEN AUTHORIZED BY THE WEST VIRGINIA

AUTHORIZATION IS CITED IN (house or senate bill number) ------f-!:=....;=-----

SECTION S_e_ct_io_n-"'§~§_64_-_3-_1 ..(k•_...'_) , PASSED ON ---.=If-~~;;;';;"':;;'~---

THIS RULE IS FILED WITH THE SECRETARY OF STATE.

FOLLOWING DATE: June 1,2009

BECOMES EFFECTNE ON THE

Randy C. Huffma ,Cabinet Secretary
WEST VIRGINIA LEGISLATURE

Legislative Rule-Making Review Committee

Senator Joseph Minard, Cochair

Delegate Bonnie Brown, Cochair

Debra A. Graham, Chief Counsel

Felisha NiSutherland, Administrative Assistant

Rita A. Pauley, Associate Counsel

Brian Skinner, Associate Counsel

Charles Roskovensky, Associate Counsel

Jay Lazell, Associate Counsel

February 10, 2009

NOTICE OF ACTION TAKEN BY THE LEGISLATIVE RULE-MAKING REVIEW COMMITTEE

TO: Betty Ireland, Secretary of State, State Register

TO: John A. Benedict, Director

DEP - Air Quality

601 - 57th Street, SE

Charleston, WV 25304

FROM: Legislative Rule-Making Review Committee

Proposed Rule: NOx Budget Trading Program as a Means of Control and

Reduction of Nitrogen Oxides from Electric Generating Units,

45CSR26

The Legislative Rule-Making Review Committee Recommends that the West Virginia

Legislature:

1. Authorize the agency to promulgate the Legislative rule:

(A) as originally filed

(B) as modified by the agency

4. Authorize the agerlcy-. to" pr omuLqa t.e part oaf the Legisl~ti't .re r uLe :

a statement of reasons·for such recommendation is attached.

3. Authorize the agency to promulgate the Legislative rule with

certain amendments; amendments and a statement of reasons for

such recommendation is attached.

4. Authorize the agency to promulgate the Legislative rule as

modified with certain amendments; amendments and a statement

of reasons for such recommendation is attached.

5. Recommends that the Legislature rule be withdrawn; a statement

of reasons for such recommendation is attached.

Building 1, Room MB-49

Phone: (304) 347-4840

1900 Kanawha Boulevard, East Charleston, WV 25305

Fax: (304) 347-4901 email:felishas@mail.wvflet.edu
1 ENROLLED

2 COMMITTEE SUBSTITUTE

3 FOR

4 Senate Bill No. 153

5 (SENATORS MINARD, FANNING, PREZIOSO,

6 UNGER, BOLEY AND FACEMYER, original sponsors)

7 __________

8 [Passed April 8, 2009; in effect from passage.]

9 __________

10

11

12 AN ACT to amend and reenact article 3, chapter 64 of the Code of

13 West Virginia, 1931, as amended, relating generally to the

14 promulgation of administrative rules by the various executive

15 or administrative agencies and the procedures relating

16 thereto; continuing rules previously promulgated by state

17 agencies and boards; legislative mandate or authorization for

18 the promulgation of certain legislative rules; authorizing

19 certain of the agencies to promulgate certain legislative

20 rules in the form that the rules were filed in the State

21 Register; authorizing certain of the agencies to promulgate

22 certain legislative rule with various modifications presented

23 to and recommended by the Legislative Rule-Making Review

24 Committee; repealing certain legislative rules; authorizing

25 the Department of Environmental Protection to promulgate a
1 legislative rule relating to standards of performance for new

2 stationary sources; authorizing the Department of

3 Environmental Protection to promulgate a legislative rule

4 relating to hazardous waste management systems; authorizing

5 the Department of Environmental Protection to promulgate a

6 legislative rule relating to the assessment of civil

7 administrative penalties; authorizing the Department of

8 Environmental Protection to promulgate a legislative rule

9 relating to the hazardous waste management fee; authorizing

10 the Department of Environmental Protection to promulgate a

11 legislative rule relating to surface mining reclamation;

12 authorizing the Department of Environmental Protection to

13 repeal a legislative rule relating to the control and

14 reduction of nitrogen oxides from nonelectric-generating units

15 as a means of mitigate transport of ozone precursors;

16 authorizing the Department of Environmental Protection to

17 promulgate a legislative rule relating to ambient air quality

18 standards; authorizing the Department of Environmental

19 Protection to promulgate a legislative rule relating to

20 permits for construction, modification, relocation and

21 operation of stationary sources of air pollutants,

22 notification requirements, administrative updates, temporary

23 permits, general permits, permission to commence construction

24 and procedures for evaluation; authorizing the Department of

25 Environmental Protection to promulgate a legislative rule
1 relating to permits for construction and major modification of

2 major stationary sources of air pollution for the prevention

3 of significant deterioration; authorizing the Department of

4 Environmental Protection to promulgate a legislative rule

5 relating to the control of air pollution from hazardous waste

6 treatment, storage and disposal facilities; authorizing the

7 Department of Environmental Protection to repeal a legislative

8 rule relating to the Nox budget trading program as a means of

9 control and reduction of nitrogen oxides from electric10 generating units; authorizing the Department of Environmental

11 Protection to promulgate a legislative rule relating to

12 emission standards for hazardous air pollutants; authorizing

13 the Department of Environmental Protection to promulgate a

14 legislative rule relating to a mercury budget training program

15 to reduce mercury emissions; authorizing the Department of

16 Environmental Protection to promulgate a legislative rule

17 relating to the WV/NPDES rules for coal mining facilities;

18 authorizing the Department of Environmental Protection to

19 promulgate a legislative rule relating to the State Water

20 Pollution Control Revolving Fund; authorizing the Department

21 of Environmental Protection to promulgate a legislative rule

22 relating to environmental laboratories’ certification and

23 standards of performance; authorizing the Department of

24 Environmental Protection to promulgate a legislative rule

25 relating to dam safety; and authorizing the Department of
1 Environmental Protection to promulgate a legislative rule

2 relating to the assessment of civil administrative penalties;

3 authorizing the Department of Environmental Protection to

4 promulgate a legislative rule relating to voluntary

5 remediation and redevelopment.

6 Be it enacted by the Legislature of West Virginia:

7 That article 3, chapter 64 of the Code of West Virginia, 1931,

8 as amended, be amended and reenacted to read as follows:

9 ARTICLE 3. AUTHORIZATION FOR DEPARTMENT OF ENVIRONMENTAL

10 PROTECTION TO PROMULGATE LEGISLATIVE RULES.

11 §64-3-1. Department of Environmental Protection.

12 (a) The legislative rule filed in the State Register on August

13 28, 2008, authorized under the authority of section four, article

14 five, chapter twenty-two of this code, relating to the Department

15 of Environmental Protection (standards of performance for new

16 stationary sources, 45 CSR 16), is authorized.

17 (b) The legislative rule filed in the State Register on August

18 29, 2008, authorized under the authority of section six, article

19 eighteen, chapter twenty-two of this code, modified by the

20 Department of Environmental Protection to meet the objections of

21 the legislative rule-making review committee and refiled in the

22 State Register on October 24, 2008, relating to the Department of

23 Environmental Protection (hazardous waste management systems, 33

24 CSR 20), is authorized.

25 (c) The legislative rule filed in the State Register on August
1 28, 2008, authorized under the authority of section fifteen,

2 article fifteen, chapter twenty-two of this code, modified by the

3 Department of Environmental Protection to meet the objections of

4 the legislative rule-making review committee and refiled in the

5 State Register on November 21, 2008, relating to the Department of

6 Environmental Protection (assessment of civil administrative

7 penalties, 33 CSR 22), is authorized.

8 (d) The legislative rule filed in the State Register on August

9 26, 2008, authorized under the authority of section twenty-two,

10 article eighteen, chapter twenty-two of this code, modified by the

11 Department of Environmental Protection to meet the objections of

12 the legislative rule-making review committee and refiled in the

13 State Register on October 24, 2008, relating to the Department of

14 Environmental Protection (hazardous waste management fee, 33 CSR

15 24), is authorized.

16 (e) The legislative rule filed in the State Register on August

17 29, 2008, authorized under the authority of section four, article

18 three, chapter twenty-two of this code, modified by the Department

19 of Environmental Protection to meet the objections of the

20 legislative rule-making review committee and refiled in the State

21 Register on February 17, 2009, relating to the Department of

22 Environmental Protection (surface mining reclamation, 38 CSR 2), is

23 authorized.

24 (f) The legislative rule filed in the State Register on August

25 29, 2008, authorized under the authority of section four, article
1 five, chapter twenty-two of this code, relating to the Department

2 of Environmental Protection (control and reduction of nitrogen

3 oxides from nonelectric-generating units as a means of mitigate

4 transport of ozone precursors, 45 CSR 1), is authorized.

5 (g) The legislative rule filed in the State Register on August

6 29, 2008, authorized under the authority of section four, article

7 five, chapter twenty-two of this code, modified by the Department

8 of Environmental Protection to meet the objections of the

9 legislative rule-making review committee and refiled in the State

10 Register on November 21, 2008, relating to the Department of

11 Environmental Protection (ambient air quality standards, 45 CSR 8),

12 is authorized.

13 (h) The legislative rule filed in the State Register on August

14 29, 2008, authorized under the authority of section four, article

15 five, chapter twenty-two of this code, relating to the Department

16 of Environmental Protection (permits for construction,

17 modification, relocation and operation of stationary sources of air

18 pollutants, notification requirements, administrative updates,

19 temporary permits, general permits, permission to commence

20 construction and procedures for evaluation, 45 CSR 13), is

21 authorized.

22 (i) The legislative rule filed in the State Register on August

23 29, 2008, authorized under the authority of section four, article

24 five, chapter twenty-two of this code, modified by the Department

25 of Environmental Protection to meet the objections of the
1 legislative rule-making review committee and refiled in the State

2 Register on January 16, 2009, relating to the Department of

3 Environmental Protection (permits for construction and major

4 modification of major stationary sources of air pollution for the

5 prevention of significant deterioration, 45 CSR 14), is authorized.

6 (j) The legislative rule filed in the State Register on August

7 29, 2008, authorized under the authority of section four, article

8 five, chapter twenty-two of this code, relating to the Department

9 of Environmental Protection (control of air pollution from

10 hazardous waste treatment, storage and disposal facilities, 45 CSR

11 25), is authorized.

12 (k) The legislative rule filed in the State Register on August

13 29, 2008, authorized under the authority of section four, article

14 five, chapter twenty-two of this code, relating to the Department

15 of Environmental Protection (Nox budget trading program as a means

16 of control and reduction of nitrogen oxides from electric17 generating units, 45 CSR 26), is authorized.

18 (l) The legislative rule filed in the State Register on August

19 29, 2008, authorized under the authority of section four, article

20 five, chapter twenty-two of this code, relating to the Department

21 of Environmental Protection (emission standards for hazardous air

22 pollutants, 45 CSR 34), is authorized.

23 (m) The legislative rule filed in the State Register on August

24 29, 2008, authorized under the authority of section four, article

25 five, chapter twenty-two of this code, relating to the Department
1 of Environmental Protection (mercury budget training program to

2 reduce mercury emissions, 45 CSR 37), is authorized.

3 (n) The legislative rule filed in the State Register on August

4 28, 2008, authorized under the authority of section four, article

5 eleven, chapter twenty-two of this code, modified by the Department

6 of Environmental Protection to meet the objections of the

7 legislative rule-making review committee and refiled in the State

8 Register on February 17, 2009, relating to the Department of

9 Environmental Protection (WV/NPDES rules for coal mining

10 facilities, 47 CSR 30), is authorized.

11 (o) The legislative rule filed in the State Register on August

12 28, 2008, authorized under the authority of section three, article

13 two, chapter twenty-two-c of this code, relating to the Department

14 of Environmental Protection (state water pollution control

15 revolving fund, 47 CSR 31), is authorized.

16 (p) The legislative rule filed in the State Register on August

17 28, 2008, authorized under the authority of section fifteen,

18 article one, chapter twenty-two of this code, modified by the

19 Department of Environmental Protection to meet the objections of

20 the legislative rule-making review committee and refiled in the

21 State Register on December 12, 2008, relating to the Department of

22 Environmental Protection (environmental laboratories certification

23 and standards of performance, 47 CSR 32), is authorized.

24 (q) The legislative rule filed in the State Register on August

25 28, 2008, authorized under the authority of section six, article
1 eighteen, chapter twenty-two of this code, modified by the

2 Department of Environmental Protection to meet the objections of

3 the legislative rule-making review committee and refiled in the

4 State Register on January 22, 2009, relating to the Department of

5 Environmental Protection (dam safety, 47 CSR 34), is authorized.

6 (r) The legislative rule filed in the State Register on August

7 28, 2008, authorized under the authority of section ten, article

8 twelve, chapter twenty-two of this code, modified by the Department

9 of Environmental Protection to meet the objections of the

10 legislative rule-making review committee and refiled in the State

11 Register on November 21, 2008, relating to the Department of

12 Environmental Protection (assessment of civil administrative

13 penalties, 47 CSR 56), is authorized.

14 (s) The legislative rule filed in the State Register on August

15 25, 2008, authorized under the authority of section three, article

16 twenty-two, chapter twenty-two of this code, relating to the

17 Department of Environmental Protection (voluntary remediation and

18 redevelopment, 60 CSR 3), is authorized.