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Subpart 237-9: Individual Unit Opt-Ins

(Statutory authority: Environmental Conservation Law, §§ 1-0101, 3-0301, 19-0103, 19-0105, 19-0301, 19-0303, 19-0305, 19-0311)

[Filed 3/28/05. Effective 30 days after filing.]

[This is page 1 of 1 of this Subpart. A complete list of Subparts in this regulation appears in the Chapter 3 contents page. A list of sections in this Subpart appears below.]

For administrative information about this posting, contact: Division of Air Resources. The Bureau of Air Quality Planning at (518) 402-8396 is the contact for technical questions pertaining to this rule.

Contents:

Sec.

§237-9.1 Applicability

A unit that is not a NOx budget unit under section 237-1.4 of this Part, vents all of its emissions to a stack, and is operating, may qualify, under this Subpart, to become a NOx budget opt-in unit.

§237-9.2 General

Except as otherwise provided in this Part, a NOx budget opt-in unit shall be treated as a NOx budget unit for purposes of applying Subparts 237-1 through 237-8 of this Part.

§237-9.3 NOx authorized account representative

A unit for which an application for a NOx budget opt-in permit is submitted and not denied or withdrawn, or a NOx budget opt-in unit, located at the same source as one or more NOx budget units, shall have the same NOx authorized account representative as such NOx budget units.

§237-9.4 Applying for NOx budget opt-in permit

In order to apply for a NOx budget opt-in permit, the NOx authorized account representative of a unit qualified under section 237-9.1 of this Subpart may submit to the department at any time, except as provided under section 237-9.7(g) of this Subpart:

(a) a complete NOx budget permit application under section 237-3.3 of this Part;

(b) a monitoring plan submitted in accordance with Subpart 237-8 of this Part; and

(c) a complete account certificate of representation under section 237-2.4 of this Part, if no NOx authorized account representative has been previously designated for the unit.

§237-9.5 Opt-in process

The department will issue or deny a NOx budget opt-in permit for a unit for which an initial application for a NOx budget opt-in permit under section 237-9.4 of this Subpart is submitted, in accordance with section 237-3.1 of this Part and the following:

(a) Interim review of monitoring plan. The department will determine, on an interim basis, the sufficiency of the monitoring plan accompanying the application for a NOx budget opt-in permit under section 237-9.4 of this Subpart. A monitoring plan is sufficient, for purposes of interim review, if the plan appears to contain information demonstrating that the NOx emissions rate and heat input of the unit are monitored and reported in accordance with Subpart 237-8 of this Part. A determination of sufficiency shall not be construed as acceptance or approval of the unit's monitoring plan.

(b) If the department determines that the unit's monitoring plan is sufficient under subdivision (a) of this section and after completion of monitoring system certification under Subpart 237-8 of this Part, the NOx emissions rate and the heat input of the unit shall be monitored and reported in accordance with Subpart 237-8 of this Part for one full control period during which percent monitor data availability is not less than 90 percent and during which the unit is in full compliance with any applicable State or Federal emissions or emissions-related requirements. Solely for purposes of applying the requirements in the prior sentence, the unit shall be treated as a NOx budget unit prior to issuance of a NOx budget opt-in permit covering the unit.

(c) Based on the information monitored and reported under subdivision (b) of this section, the department will calculate the unit's baseline heat input, which will equal the unit's total heat input (in mmBtu) for the control period, and the unit's baseline NOx emissions rate, which will equal the unit's total NOx mass emissions (in lb) for the control period divided by the unit's baseline heat input.

(d) After calculating the baseline heat input and the baseline NOx emissions rate for the unit under subdivision (c) of this section, the department will serve a NOx budget opt-in permit on the NOx authorized account representative of the unit.

(e) Issuance of NOx budget opt-in permit. The department will issue the NOx budget opt-in permit in accordance with section 237-3.1 of this Part.

(f) Withdrawal of application for NOx budget opt-in permit. A NOx authorized account representative of a unit may withdraw its application for a NOx budget opt-in permit under section 237-9.4 of this Subpart at any time prior to the issuance of the final NOx budget opt-in permit. Once the application for a NOx budget opt-in permit is withdrawn, a NOx authorized account representative wanting to reapply must submit a new application for a NOx budget permit under section 237-9.4 of this Subpart.

(g) Effective date. The effective date of the NOx budget opt-in permit shall be October 1st of the first control period starting after the issuance of the initial NOx budget opt-in permit by the department. The unit shall be a NOx budget opt-in unit and a NOx budget unit as of the effective date of the initial NOx budget opt-in permit.

§237-9.6 NOx budget opt-in permit contents

Each NOx budget opt-in permit will contain all elements required for a complete NOx budget opt-in permit application under section 237-3.3 of this Part as approved or adjusted by the department.

§237-9.7 Withdrawal from ADR NOx Budget Trading Program

(a) Requesting withdrawal. To withdraw from the ADR NOx Budget Trading Program, the NOx authorized account representative of a NOx budget opt-in unit shall submit to the department a request to withdraw effective as of a specified date prior to October 1st or after April 30th. The submission shall be made no later than 90 days prior to the requested effective date of withdrawal.

(b) Conditions for withdrawal. Before a NOx budget opt-in unit covered by a request under subdivision (a) of this section may withdraw from the ADR NOx Budget Trading Program and the NOx budget opt-in permit may be terminated under subdivision (e) of this section, the following conditions must be met:

(1) For the control period immediately before the withdrawal is to be effective, the NOx authorized account representative must submit or must have submitted to the department an annual compliance certification report in accordance with section 237-4.1 of this Part.

(2) If the NOx budget opt-in unit has excess emissions for the control period immediately before the withdrawal is to be effective, the department or its agent will deduct or has deducted from the NOx budget opt-in unit's compliance account, or the overdraft account of the NOx budget source where the NOx budget opt-in unit is located, the full amount required under section 237-6.5(d) of this Part for the control period.

(3) After the requirements for withdrawal under paragraphs (1) and (2) of this subdivision are met, the department or its agent will deduct from the NOx budget opt-in unit's compliance account, or the overdraft account of the NOx budget source where the NOx budget opt-in unit is located, NOx allowances equal in number to and allocated for the same or a prior control period as any NOx allowances allocated to that source under section 237-9.9 of this Subpart for any control period for which the withdrawal is to be effective. The department or its agent will close the NOx budget opt-in unit's compliance account and will establish, and transfer any remaining NOx allowances to, a new general account for the owners and operators of the NOx budget opt-in unit. The NOx authorized account representative for the NOx budget opt-in unit shall become the NOx authorized account representative for the general account.

(c) A NOx budget opt-in unit that withdraws from the ADR NOx Budget Trading Program shall comply with all requirements under the ADR NOx Budget Trading Program concerning all years for which such NOx budget opt-in unit was a NOx budget opt-in unit, even if such requirements arise or must be complied with after the withdrawal takes effect.

(d) Notification.

(1) After the requirements for withdrawal under subdivisions (a) and (b) of this section are met (including deduction of the full amount of NOx allowances required), the department will issue a notification to the NOx authorized account representative of the NOx budget opt-in unit of the acceptance of the withdrawal of the NOx budget opt-in unit as of a specified effective date that is after such requirements have been met and that is prior to October 1st or after April 30th.

(2) If the requirements for withdrawal under subdivisions (a) and (b) of this section are not met, the department will issue a notification to the NOx authorized account representative of the NOx budget opt-in unit that the NOx budget opt-in unit's request to withdraw is denied. If the NOx budget opt-in unit's request to withdraw is denied, the NOx budget opt-in unit shall remain subject to the requirements for a NOx budget opt-in unit.

(e) Permit revision. After the department issues a notification under paragraph (d)(1) of this section that the requirements for withdrawal have been met, the department will revise the permit issued pursuant to Part 201 of this Tittle covering the NOx budget opt-in unit to terminate the NOx budget opt-in permit as of the effective date specified under paragraph (d)(1) of this section. A NOx budget opt-in unit shall continue to be a NOx budget opt-in unit until the effective date of the termination.

(f) Reapplication upon failure to meet conditions of withdrawal. If the department denies the NOx budget opt-in unit's request to withdraw, the NOx authorized account representative may submit another request to withdraw in accordance with subdivisions (a) and (b) of this section.

(g) Ability to return to the ADR NOx Budget Trading Program. Once a NOx budget opt-in unit withdraws from the ADR NOx Budget Trading Program and its NOx budget opt-in permit is terminated under this section, the NOx authority account representative may not submit another application for a NOx budget opt-in permit under section 237-9.4 of this Subpart for the unit prior to the date that is four years after the date on which the terminated NOx budget opt-in permit became effective.

§237-9.8 Change in regulatory status

(a) Notification. When a NOx budget opt-in unit becomes a NOx budget unit under section 237-1.4 of this Part, the NOx authorized account representative shall notify in writing the department of such change in the NOx budget opt-in unit's regulatory status, within 30 days of such change.

(b) Actions of the department or its agent.

(1) (i) When the NOx budget opt-in unit becomes a NOx budget unit under section 237-1.4 of this Part, the department will revise the NOx budget opt-in unit's NOx budget opt-in permit to meet the requirements of a NOx budget permit under Subpart 237-3 of this Part as of an effective date that is the date on which such NOx budget opt-in unit becomes a NOx budget unit under section 237-1.4 of this Part.

(ii) (a) The department or its agent will deduct from the compliance account for the NOx budget unit under subparagraph (i) of this paragraph, or the overdraft account of the NOx budget source where the unit is located, NOx allowances equal in number to and allocated for the same or a prior control period as:

(1) any NOx allowances allocated to the NOx budget unit (as a NOx budget opt-in unit) under section 237-9.9 of this Subpart for any control period after the last control period during which the unit's NOx budget opt-in permit was effective; and

(2) if the effective date of the NOx budget permit revision under subparagraph (i) of this paragraph is during a control period, the NOx allowances allocated to the NOx budget unit (as a NOx budget opt-in unit) under section 237-9.9 of this Subpart for the control period multiplied by the number of days, in the control period, starting with the effective date of the permit revision under subparagraph (i) of this paragraph, divided by the total number of days in the control period and rounded to the nearest whole number of allowances as appropriate.

(b) The NOx authorized account representative shall ensure that the compliance account of the NOx budget unit under subparagraph (i) of this paragraph, or the overdraft account of the NOx budget source where the unit is located, contains the NOx allowances necessary for completion of the deduction under clause (a) of this subparagraph. If the compliance account or overdraft account does not contain sufficient NOx allowances, the department or its agent will deduct the required number of NOx allowances, regardless of the control period for which they were allocated, whenever NOx allowances are recorded in either account.

(iii) (a) For every control period during which the NOx budget permit revised under subparagraph (i) of this paragraph is in effect, the NOx budget unit under subparagraph (i) of this paragraph will be treated, solely for purposes of NOx allowance allocations under section 237-5.3 of this Part, as a unit that commenced operation on the effective date of the NOx budget permit revision under subparagraph (i) of this paragraph and will be allocated NOx allowances under section 237-5.3 of this Part. The unit's deadline for meeting monitoring requirements in accordance with Subpart 237-8 of this Part shall not be changed by the change in the unit's regulatory status or by the revision of the NOx budget permit under subparagraph (i) of this paragraph.

(b) Notwithstanding clause (a) of this subparagraph, if the effective date of the NOx budget permit revision under subparagraph (i) of this paragraph is during a control period, the following number of NOx allowances will be allocated to the NOx budget unit under subparagraph (i) of this paragraph under section 237-5.3 of this Part for the control period: the number of NOx allowances otherwise allocated to the NOx budget unit under section 237-5.3 of this Part for the control period multiplied by the number of days in the control period starting with the effective date of the permit revision under subparagraph (i) of this paragraph, divided by the total number of days in the control period rounded to the nearest whole number of allowances as appropriate.

(2) (i) If the NOx budget opt-in permit of a NOx budget opt-in unit is revoked by the department or is allowed to expire by the source, the department or its agent will deduct from the NOx budget opt-in unit's compliance account, or the overdraft account of the NOx budget source where the NOx budget opt-in unit is located, NOx allowances equal in number to and allocated for the same or a prior control period as any NOx allowances allocated to the NOx budget opt-in unit under section 237-9.9 of this Subpart for any control period after the last control period for which the NOx budget opt-in permit is effective. The NOx authorized account representative shall ensure that the NOx budget opt-in unit's compliance account or the overdraft account of the NOx budget source where the NOx budget opt-in unit is located includes the NOx allowances necessary for completion of such deduction. If the compliance account or overdraft account does not contain sufficient NOx allowances, the department or its agent will deduct the required number of NOx allowances, regardless of the control period for which they were allocated, whenever NOx allowances are recorded in either account.

(ii) After the deduction under subparagraph (i) of this paragraph is completed, the department or its agent will close the NOx budget opt-in unit's compliance account. If any NOx allowances remain in the compliance account after completion of such deduction and any deduction under section 237-6.5 of this Part, the department or its agent will close the NOx budget opt-in unit's compliance account and will establish, and transfer any remaining NOx allowances to, a new general account for the owners and operators of the NOx budget opt-in unit. The NOx authorized account representative for the NOx budget opt-in unit shall become the NOx authorized account representative for the general account.

§237-9.9 NOx allowance allocations to opt-in units

(a) NOx allowance allocation.

(1) By May 31st immediately before the first control period for which the NOx budget opt-in permit is effective, the department will allocate NOx allowances to the NOx budget opt-in unit for the control period in accordance with subdivision (b) of this section.

(2) By no later than May 31st, after the first control period for which the NOx budget opt-in permit is in effect, and May 31st of each year thereafter, the department will allocate NOx allowances to the NOx budget opt-in unit for the next control period in accordance with subdivision (b) of this section.

(b) For each control period for which the NOx budget opt-in unit has an approved NOx budget opt-in permit, the NOx budget opt-in unit will be allocated NOx allowances in accordance with the following procedures:

(1) The heat input (in mmBtu) used for calculating NOx allowance allocations will be the lesser of:

(i) the NOx budget opt-in unit's baseline heat input determined pursuant to section 237-9.5(c) of this Subpart; or

(ii) the NOx budget opt-in unit's heat input, as determined in accordance with Subpart 237-8 of this Part, for the control period in the year prior to the year of the control period for which the NOx allocations are being calculated.

(2) The department will allocate NOx allowances to the NOx budget opt-in unit in an amount equaling the heat input (in mmBtu) determined under paragraph (1) of this subdivision multiplied by the lesser of:

(i) the NOx budget opt-in unit's baseline NOx emissions rate (in lb/mmBtu) determined pursuant to section 237-9.5(c) of this Subpart; or

(ii) the most stringent State or Federal NOx emissions limitation applicable to the NOx budget opt-in unit during the control period.