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Electronic Code of Federal Regulations

e-CFR data is current as of December 3, 2019

Title 40Chapter ISubchapter CPart 97 → Subpart A


Title 40: Protection of Environment
PART 97—FEDERAL NOX BUDGET TRADING PROGRAM, CAIR NOX AND SO2 TRADING PROGRAMS, CSAPR NOX AND SO2 TRADING PROGRAMS, AND TEXAS SO2 TRADING PROGRAM


Subpart A—NOX Budget Trading Program General Provisions


Contents
§97.1   Purpose.
§97.2   Definitions.
§97.3   Measurements, abbreviations, and acronyms.
§97.4   Applicability.
§97.5   Retired unit exemption.
§97.6   Standard requirements.
§97.7   Computation of time.

§97.1   Purpose.

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

§97.2   Definitions.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Fossil fuel fired means, with regard to a unit:

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

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

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

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

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

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

Generator means a device that produces electricity.

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

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

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

(1) For the life of the unit;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Owner means any of the following persons:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) In person;

(2) By United States Postal Service; or

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

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

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

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

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

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

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

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

§97.3   Measurements, abbreviations, and acronyms.

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

Btu-British thermal unit.

CO2-carbon dioxide.

hr-hour.

kW-kilowatt electrical.

kWh-kilowatt hour.

lb-pounds.

mmBtu-million Btu.

MWe-megawatt electrical.

NOX-nitrogen oxides.

O2-oxygen.

ton-2000 pounds.

§97.4   Applicability.

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

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

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

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

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

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

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

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

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

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

(2) Producing electricity for sale.

(ii) For cogeneration units—

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

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

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

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

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

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

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

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

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

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

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

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

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

(ii) For cogeneration units—

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§97.5   Retired unit exemption.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§97.6   Standard requirements.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

§97.7   Computation of time.

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

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

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

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