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Subpart 237-1: ADR NOx Budget Trading Program

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

[Filed 4/6/10. 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.

§237-1.1 Purpose

This Part establishes the ADR NOx Budget Trading Program which is designed to reduce acid deposition in New York State by limiting emissions of NOx from fossil fuel-fired electricity generating units during the non-ozone season. Emissions of NOx and SO2 react with other substances in the atmosphere to create weak acids which fall to the earth in the form of rain, snow, fog, or dry particles. This acid deposition severely damages many of the State's marine and forest ecosystems and causes deterioration of many manmade structures. Implementation of the provisions of this Part and Part 204 of this Title (addressing emissions of NOx during the non-ozone season and ozone season, respectively) as well as Part 238 of this Title (addressing year-round emissions of SO2) is intended to reduce acid deposition caused by emissions of NOx and SO2 affected units. Implementation of this Part will also have immediate positive impacts on public health due to the reduction in the formation of the secondary particulate matter including, most importantly, any particulate matter with a mass median diameter of less than 2.5 microns.

§237-1.2 Definitions

(a) To the extent that they are not inconsistent with the specific definitions in subdivision (b) of this section, the general definitions of Part 200 of this Title apply to this Part.

(b) For the purposes of this Part, the following specific definitions apply:

(1) Account number. The identification number given by the department or its agent to each NOx allowance tracking system account.

(2) ADR. Acid deposition reduction.

(3) Allocate or allocation. The determination by the department of the number of NOx allowances to be initially credited to a NOx budget unit or an allocation set-aside.

(4) Annual average heat rate. A measure of an electricity generating unit's thermal efficiency, expressed in Btu's per net megawatt-hr, computed by dividing the heat input (based on total higher heating value heat content of the fuel burned) for electricity generation by the resulting net generation during a calendar year. For co-generation facilities, the heat input for electricity generation is calculated by the sum of the heat input for combustion turbines, steam boilers (excluding backup boilers) and supplemental firing minus the net heat input of useful thermal energy provided for purposes other than electricity generation.

(5) Backup fuel. A fuel other than the primary fuel.

(6) Boiler. An enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.

(7) Combined cycle system. 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.

(8) Combustion turbine. An enclosed fossil or other fuel-fired device that is comprised of a compressor (if applicable), 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.

(9) Commence operation. To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation.

(10) Common stack. A single flue through which emissions from two or more units are exhausted.

(11) Compliance account. A NOx allowance tracking system account, established by the department or its agent for a NOx budget unit under Subpart 237-6 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.

(12) Control period. The period beginning October 1st of a year and ending on April 30th of the following year, inclusive. The period ending on April 30, 2010 will be the final control period for the ADR NOx Budget Trading Program.

(13) Control period potential to emit or CPPTE. The maximum capacity of a NOx budget unit to emit NOx under its physical and operational design during a control period. Any physical or operational limitation on the capacity of a NOx budget unit to emit NOx, including air pollution control equipment and/or a restriction on the hours of operation, or on the type or amount of material combusted shall be treated as part of the design if the limitation is enforceable by the department.

The CPPTE can be no greater than the number to be determined by the following:

CPPTE < [(7/12ths ABUhr x BUER) + ((5,088 - 7/12ths ABUhr) x PER)] x MRHHI

when PER and BUER are in lb/mmBtu; or,

CPPTE < (7/12ths ABUhr x BUER) + ((5,088 - 7/12ths ABUhr) x PER)

when PER and BUER are in lb/hr,

where:

ABUhr is number of hours it takes annually to combust the quantity of the backup fuel allowed under the unit's permit which, if used as the only fuel for the unit, would be the number of hours in determining the emission rate potential for the unit.

BUER is the lowest emission rate applicable to the use of the backup fuel (in lb/mmBtu or lb/hr based on inlet temperature of 47.5° F) allowed under the unit's permit which, if used as the only fuel for the unit, would be the emission rate in determining the emission rate potential for the unit.

MRHHI is the maximum rated hourly heat input for the unit based upon an inlet air temperature of 47.5° F for those units without temperature control.

PER is the lowest emission rate applicable to the use of the primary fuel (in lb/mmBtu or lb/hr based on inlet temperature of 47.5° F) allowed under the unit's permit.

(14) End-use energy efficiency project. A project implemented at the customer level that uses a reduced amount of electricity, measured in kilowatt-hrs to maintain or increase the level of energy service, including product output and comfort level. Examples of such a project include, without limitation, installing new equipment or systems, modifying existing equipment or systems, or improving operation and maintenance procedures.

(15) Excess emissions. Any tonnage of NOx emitted by a NOx budget unit during a control period that exceeds the NOx budget emissions limitation for the unit.

(16) Fossil fuel. Natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.

(17) Fossil fuel-fired. With regard to a unit: the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or 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.

(18) General account. A NOx allowance tracking system account, established under Subpart 237-6 of this Part, that is not a compliance account or an overdraft account.

(19) Generator. A device that produces electricity.

(20) Gross generation. The electrical output (in MWe) at the terminals of the generator.

(21) Heat input. The product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) and the fuel feed rate into a combustion device (in mass of fuel/time), as measured, recorded, and reported to the department by the NOx authorized account representative and as determined by the department in accordance with Subpart 237-8 of this Part, and does not include the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

(22) Higher heating value heat content. Total gross calorific value of the fuel, or the total heat (in Btu/specified unit of fuel) produced when the fuel is completely combusted under standardized conditions, including the heat lost in the vaporization of water contained in the fuel.

(23) In-plant energy efficiency project. A project undertaken at a NOx budget source that increases the overall energy efficiency of the facility. Examples of such a project include, without limitation, improvements in thermal efficiency, and more efficient production of electricity.

(24) Life-of-the-unit, firm power contractual arrangement. 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:

(i) for the life of the unit;

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

(iii) 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.

(25) Maximum rated hourly heat input. The 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.

(26) Most stringent State or Federal NOx emissions limitation. With regard to a NOx budget opt-in unit, 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.

(27) Nameplate capacity. The maximum electrical 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.

(28) Net generation. All electrical output supplied to the electric power grid or gross generation minus the electrical output used on-site by the facility (in MWe). For co-generation facilities, all electrical output supplied to the electric power grid, the host site and other industrial and commercial customers, but excluding electrical output used by the co-generation facility and fuel handling and processing equipment.

(29) NOx allowance. A limited authorization by the department under the ADR NOx Budget Trading Program to emit up to one ton of NOx during the control period. No provision of this regulation shall be construed to limit the authority of the department to terminate or limit such authorization. This limited authorization does not constitute a property right.

(30) NOx allowance deduction or deduct NOx allowances. The permanent withdrawal of NOx allowances by the department or its agent 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 Subpart 237-8 of this Part, or for the forfeit or retirement of NOx allowances as provided by this Part.

(31) NOx allowances held or hold NOx allowances. The NOx allowances recorded by the department or its agent, or submitted to the department or its agent for recordation, in accordance with Subparts 237-6 and 237-7 of this Part, in a NOx allowance tracking system account.

(32) NOx allowance tracking system. The system by which the department or its agent records allocations, deductions, and transfers of NOx allowances under the ADR NOx Budget Trading Program.

(33) NOx allowance tracking system account. An account in the NOx allowance tracking system established by the department or its agent for purposes of recording the allocation, holding, transferring, or deducting of NOx allowances.

(34) NOx allowance transfer deadline. Midnight of September 30th or, if September 30th 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.

(35) NOx authorized account representative. 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 237-2 of this Part, to represent and legally bind each owner and operator in matters pertaining to the ADR NOx Budget Trading Program or, for a general account, the natural person who is authorized, in accordance with Subpart 237-6 of this Part, to transfer or otherwise dispose of NOx allowances held in the general account.

(36) NOx budget emissions limitation. For a NOx budget unit, the tonnage equivalent of the NOx allowances available for compliance deduction for the unit for a control period.

(37) NOx budget opt-in permit. A NOx budget permit covering a NOx budget opt-in unit.

(38) NOx budget opt-in unit. A unit that has been elected to become a NOx budget unit and whose NOx budget opt-in permit has been issued and is in effect under Subpart 237-9 of this Part.

(39) NOx budget permit. The portion of the legally binding permit issued by the department pursuant to Part 201 of this Title to a NOx budget source or NOx budget unit which specifies the ADR NOx Budget Trading Program requirements applicable to the 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.

(40) NOx budget source. A source that includes one or more NOx budget units.

(41) NOx budget unit. A unit that is subject to ADR NOx Budget Trading Program requirements under section 237-1.4 of this Subpart or section 237-9.1 of this Part.

(42) Operating. With regard to a unit under section 237-9.1 of this Part, having documented heat input for more than 876 hours in the six months immediately preceding the submission of an application for a NOx budget opt-in permit under section 237-9.4(a) of this Part. The unit's documented heat input will be determined in accordance with 40 CFR part 75 if the unit was otherwise subject to the requirements of 40 CFR part 75 during that six-month period or will be based on the best available data reported to the department for the unit if the unit was not otherwise subject to the requirements of 40 CFR part 75 during that six-month period.

(43) Operator. Any person who operates, controls, or supervises a NOx budget unit, a NOx budget source, or unit for which an application for a NOx budget opt-in permit under section 237-9.4 of this Part 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.

(44) Opt-in. To be elected to become a NOx budget unit under the ADR NOx Budget Trading Program through a final, effective NOx budget opt-in permit under Subpart 237-9 of this Part.

(45) Overdraft account. The NOx allowance tracking system account, established by the department or its agent under Subpart 237-6 of this Part, for each NOx budget source where there are two or more NOx budget units.

(46) Owner. Any of the following persons:

(i) 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 section 237-9.4 of this Part is submitted and not denied or withdrawn; or

(ii) 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 section 237-9.4 of this Part is submitted and not denied or withdrawn; or

(iii) 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 section 237-9.4 of this Part 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 section 237-9.4 of this Part is submitted and not denied or withdrawn; or

(iv) 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.

(47) Primary fuel. Of the different fuels used, or projected to be used, the fuel to which the highest proportion of the control period heat input is attributable.

(48) Receive or receipt of. When referring to the department or its agent, 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 department or its agent in the regular course of business.

(49) Recordation, record, or recorded. With regard to NOx allowances, the movement of NOx allowances by the department or its agent from one NOx allowance tracking system account to another, for purposes of allocation, transfer, or deduction.

(50) Renewable energy project. Implementation of a power generation technology that produces electricity from wind energy, solar thermal energy, photovoltaics, methane waste, or sustainably managed biomass; but not the combustion or pyrolysis of solid waste.

(51) Serial number. When referring to NOx allowances, the unique identification number assigned to each NOx allowance by the department or its agent under section 237-6.4(c) of this Part.

(52) Shutdown. The permanent removal from service of a NOx budget unit as evidenced by either a permit condition or provision prohibiting the NOx budget unit from further operation, the surrender of the unit's permit, or the complete deletion of mention of the unit from the permit of a source of which it had formerly been a part with no authorization for operation of the unit appearing in any other permit.

(53) Source. 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 act. A source, including a source with multiple units, shall be considered a single facility.

(54) Submit or serve. To send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:

(i) in person;

(ii) by United States Postal Service; or

(iii) 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.

(55) Thermal efficiency. The ratio of energy output (in Btu) to energy input (in Btu) based on the higher heating value heat content of the fuel.

(56) Ton or tonnage. 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 237-8 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.

(57) Unit. A fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.

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

(59) Upwind unit. A unit that, any time on or after January 1, 1995, serves a generator with a nameplate capacity equal to or greater than 25 MWe and sells any amount of electricity and which is located in the District of Columbia or any of the following states: Delaware, Indiana, Kentucky, Maryland, Michigan, New Jersey, Ohio, Pennsylvania, Virginia, and West Virginia.

§237-1.3 Measurements, abbreviations, and acronyms

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

(a) Btu-British thermal unit;

(b) CO2-Carbon dioxide;

(c) hr-hour;

(d) lb-pounds;

(e) mmBtu-million Btu;

(f) MWe-megawatt electrical;

(g) NOx-nitrogen oxides;

(h) ppm-parts per million;

(i) SO2-sulfur dioxide.

§237-1.4 Applicability

(a) Any unit that, any time on or after January 1, 1999, serves a generator with a nameplate capacity equal to or greater than 25 MWe and sells any amount of electricity 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.

(b) Limited exemption for units with emissions restricted by certain permit conditions.

(1) Applicability. Notwithstanding subdivision (a) of this section, all units under subdivision (a) of this section that are part of a single source and are subject to the source's permit which includes a NOx emissions limitation restricting NOx emissions from the source during a control period to 25 tons or less and that includes the special provisions in paragraph (3) of this subdivision shall be exempt from the requirements of this Part, except for the provisions of this section, sections 237-1.2, 237-1.3, and 237-1.7 of this Subpart and, if applicable because of the allocation of NOx allowances during the pre-exemption time period, Subparts 237-5, 237-6 and 237-7 of this Part.

(2) Effective date. The exemption under paragraph (1) of this subdivision shall become effective as follows:

(i) the exemption shall become effective on the date on which the NOx emissions limitation and the special provisions in the permit required under paragraph (1) of this subdivision become final; or

(ii) if the NOx emissions limitation and the special provisions in the permit required under paragraph (1) of this subdivision become final during a control period and after the first date on which the source operates during such control period, then the exemption shall become effective on October 1st of such control period, provided that such NOx emissions limitation and the special provisions apply to the source as of such first date of operation. If such NOx emissions limitation and special provisions do not apply to the source as of such first date of operation, then the exemption under paragraph (1) of this subdivision shall become effective on May 1st of the year during which such NOx emissions limitation and special provisions become final.

(3) Special provisions.

(i) A source exempt under paragraph (1) of this subdivision shall comply with the restriction on source NOx emissions described in paragraph (1) of this subdivision during each control period.

(ii) A source exempt under paragraph (1) of this subdivision shall determine source NOx emissions by summing the NOx emissions from the individual units at the source. Unit NOx emissions shall be calculated by multiplying the unit's maximum rated hourly heat input by the highest default NOx emission rate otherwise applicable to the unit under 40 CFR 75.19 and the number of hours of operation.

(iii) For a period of five years from the date the records are created, the owners and operators of a source exempt under paragraph (1) of this subdivision shall retain at the source records demonstrating that the conditions of the permit under paragraph (1) of this subdivision were met. The five-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the department. The owners and operators bear the burden of proof that the source met the restriction on source NOx emissions.

(iv) The owners and operators and, to the extent applicable, the NOx authorized account representative of a source exempt under paragraph (1) of this subdivision shall comply with all the requirements of this Part 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.

(v) On the earlier of the following dates, every unit under subdivision (a) of this section which is part of a source exempt under paragraph (1) of this subdivision shall lose its exemption:

(a) the date on which the restriction on source NOx emissions described in paragraph (1) of this subdivision is removed from the source's permit or otherwise becomes no longer applicable to any control period that commences on or after October 1, 2004; or

(b) the first date on which the source fails to comply, or with regard to which the owners and operators fail to meet their burden of proving that the source is complying, with the restriction on source NOx emissions described in paragraph (1) of this subdivision during any control period that commences on or after October 1, 2004.

(vi) Every unit under subdivision (a) of this section which is part of a source that loses its exemption in accordance with subparagraph (v) of this paragraph shall be subject to the requirements of this Part. For the purpose of applying permitting requirements under Subpart 237-3 of this Part, allocating allowances under Subpart 237-5 of this Part, and applying monitoring requirements under Subpart 237-8 of this Part, each unit shall be treated as commencing operation on the date the source loses its exemption.

(c) Limited exemption for units with electrical output to the electric grid restricted by permit conditions.

(1) Applicability. Notwithstanding subdivision (a) of this section, a unit under subdivision (a) of this section that has a permit containing a condition restricting the supply of the unit's electrical output to the electric grid during a control period to less than or equal to 10 percent of the gross generation of the unit, and which complies with the special provisions in paragraph (3) of this subdivision shall be exempt from the requirements of this Part, except for the provisions of this section, sections 237-1.2, 237-1.3, and 237-1.7 of this Subpart and, if applicable because of the allocation of NOx allowances during the pre-exemption time period, Subparts 237-5, 237-6 and 237-7 of this Part.

(2) Effective date. The exemption under paragraph (1) of this subdivision shall become effective as of the October 1st that is on or after the date on which the restriction on the percentage of gross generation that may be supplied to the electric grid and the special provisions in the permit required under paragraph (1) of this subdivision become final.

(3) Special provisions.

(i) A unit exempt under paragraph (1) of this subdivision shall comply with the restriction on percentage of gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision during each control period.

(ii) A unit exempt under paragraph (1) of this subdivision shall report the amount of gross generation and the amount of gross generation supplied to the electric grid during the control period by the following June 1st.

(iii) For a period of five years from the date the records are created, the owners and operators of a unit exempt under paragraph (1) of this subdivision shall retain, at the source that includes the unit, records demonstrating that the conditions of the permit under paragraph (1) of this subdivision were met, including the restriction on the percentage of gross generation that may be supplied to the electric grid. The five-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the department. The owners and operators bear the burden of proof that the unit met the restriction on the percentage of gross generation that may be supplied to the electric grid.

(iv) The owners and operators and, to the extent applicable, the NOx authorized account representative of a unit exempt under paragraph (1) of this subdivision shall comply with all the requirements of this Part 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.

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

(a) the date on which the restriction on the percentage of gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision is removed from the unit's permit or otherwise becomes no longer applicable to any control period that commences on or after October 1, 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 the percentage of gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision during any control period that commences on or after October 1, 2004.

(vi) A unit that loses its exemption in accordance with subparagraph (v) of this paragraph shall be subject to the requirements of this Part. For the purpose of applying permitting requirements under Subpart 237-3 of this Part, allocating allowances under Subpart 237-5 of this Part, and applying monitoring requirements under Subpart 237-8 of this Part, the unit shall be treated as commencing operation on the date the unit loses its exemption.

§237-1.5 Shutdown or change in physical characteristics of a NOx budget unit

(a) Any NOx budget unit that is shutdown will no longer be deemed a NOx budget unit and shall no longer be subject to the provisions of this Part applicable to NOx budget units on the day on which the procedures set forth in paragraph (c)(1) of this section are completed.

(b) Any NOx budget unit, other than a NOx budget opt-in unit, that has permanently changed its physical characteristics so that it no longer fits the physical description of a NOx budget unit under section 237-1.4(a) of this Subpart (for example, a NOx budget unit completes a physical plant change which reduces its nameplate capacity to below 25 MWe) will no longer be deemed a NOx budget unit and shall no longer be subject to the provisions of this Part applicable to NOx budget units on the day on which the procedures set forth in paragraph (c)(2) of this section are completed.

(c) (1) The NOx authorized account representative submits a statement to the department (in a format prescribed by the department) attesting to the fact that the unit is shutdown.

(2) The NOx authorized account representative submits a statement to the department (in a format prescribed by the department) attesting to the fact that the physical characteristics of the unit have been permanently changed so that it no longer fits the physical description of a NOx budget unit under section 237-1.4(a) of this Subpart. This statement must be accompanied by adequate information which details the changes to the physical characteristics of the unit. The department, will then determine whether the statement is valid. Upon the department's determination that the statement is valid, the procedures of this paragraph are completed.

(d) Any NOx budget unit which ceases to be deemed a NOx budget unit pursuant to this section is not eligible for an allocation or distribution of NOx allowances pursuant to Subpart 237-5 of this Part following the completion of the procedures set forth in paragraph (c)(1) or (2) of this section.

§237-1.6 Standard requirements

(a) Permit requirements.

(1) The NOx authorized account representative of each NOx budget unit shall:

(i) submit to the department a complete NOx budget permit application under section 237-3.3 of this Part in accordance with the deadlines specified in section 237-3.2 of this Part; and

(ii) submit in a timely manner any supplemental information that the department 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 unit shall have a NOx budget permit and operate the unit in compliance with such NOx budget permit.

(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 237-8 of this Part.

(2) The emissions measurements recorded and reported in accordance with Subpart 237-8 of this Part shall be used to determine compliance by the unit with the NOx budget emissions limitation under subdivision (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 section 236-6.5 of this Part, 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 237-8 of this Part.

(2) Each ton of NOx emitted in excess of the NOx budget emissions limitation shall constitute a separate violation of this Part and applicable State law.

(3) A NOx budget unit shall be subject to the requirements under paragraph (1) of this subdivision starting on the later, of October 1, 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 237-5, 237-6, 237-7, and 237-9 of this Part.

(5) Except for future control period NOx allowances which may be deducted pursuant to section 237-6.5(f) of this Part, a NOx allowance shall not be deducted, in order to comply with the requirements under paragraph (1) of this subdivision, 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 department under the ADR NOx Budget Trading Program is a limited authorization to emit one ton of NOx in accordance with the ADR NOx Budget Trading Program. No provision of the ADR NOx Budget Trading Program, the NOx budget permit application, or the NOx budget permit or any provision of law shall be construed to limit the authority of the State to terminate or limit such authorization.

(7) A NOx allowance allocated by the department under the ADR NOx Budget Trading Program does not constitute a property right.

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

(1) forfeit the NOx allowances required for deduction under section 237-6.5(d)(1) of this Part; and

(2) pay any fine, penalty, or assessment or comply with any other remedy imposed under section 237-6.5(d)(3) of this Part.

(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 five years from the date the document is created. This period may be extended for cause, at any time prior to the end of five years, in writing by the department.

(i) 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 237-2.4 of this Part; provided that the certificate and documents shall be retained on site at the source beyond such five-year period until such documents are superseded because of the submission of a new account certificate of representation changing the NOx authorized account representative.

(ii) All emissions monitoring information, in accordance with Subpart 237-8 of this Part.

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

(iv) Copies of all documents used to complete a NOx budget permit application and any other submission under the ADR NOx Budget Trading Program or to demonstrate compliance with the requirements of the ADR 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 ADR NOx Budget Trading Program, including those under Subpart 237-4, 237-8, or 237-9 of this Part.

(f) Liability.

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

(2) Any provision of the ADR 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.

(3) Any provision of the ADR 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 Subpart 237-8 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 ADR NOx Budget Trading Program, a NOx budget permit application, or a NOx budget permit, 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 provisions of applicable State and Federal law and regulations. The department retains authority to impose specific permit conditions on any NOx budget source that limit permissible emissions and the number of allowances that may be used for compliance. Any such permit condition may be based on the adverse environmental impact that the source is shown to have on any sensitive receptor area due to the source's proximity to the receptor area.

§237-1.7 Computation of time

(a) Unless otherwise stated, any time period scheduled, under the ADR 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 ADR 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 ADR 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.