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Subpart 242-1: CO2 Budget Trading Program General Provisions

(Statutory authority: Environmental Conservation Law, §§ Environmental Conservation Law, §§ 1-0101, 1-0303, 3-0301, 11-0303, 11-0305, 11-0535, 13-0105, 15-0109, 15-1903, 16-0111, 17-0303, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305, 24-0103, 25-0102, 34-0108, 49-0309, 71-2103, 71-2105; Energy Law, §§ 3-101, 3-103; Public Authorities Law, §§ 1850, 1851, 1854, 1855)

[Filed 11/27/13. Effective 1/1/14.]

[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.

§242-1.1 Purpose

This Part establishes the New York State component of the CO2 Budget Trading Program, which is designed to stabilize and then reduce anthropogenic emissions of CO2, a greenhouse gas, from CO2 budget sources in an economically efficient manner.

§242-1.2 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 CO2 allowance tracking system account.

(2) Acid rain emissions limitation. As defined in 40 CFR 72.2 (see Table 1, section 200.9 of this Title), a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program under title IV of the Clean Air Act.

(3) Acid Rain Program. A multi-state sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the administrator under title IV of the CAA and 40 CFR parts 72 through 78 (see Table 1, section 200.9 of this Title).

(4) Administrator. Administrator means the administrator of the United States Environmental Protection Agency or the administrator's authorized representative.

(5) Allocate or allocation. The determination by the department of the number of CO2 allowances to be recorded in the compliance account of a CO2 budget unit, an allocation set-aside account, the energy efficiency and clean energy technology account, or the general account of the sponsor of an approved CO2 emissions offset project.

(6) Allocation year. A calendar year for which the department allocates or awards CO2 allowances pursuant to Subparts 242-5 and 242-10 of this Part. The allocation year of each CO2 allowance is reflected in the unique identification number given to the allowance pursuant to section 242-6.4(b) of this Part.

(7) Allowance auction or auction. An auction in which the New York State Research and Development Authority (NYSERDA) or its agent offers CO2 allowances for sale.

(8) Alternate CO2 authorized account representative. For a CO2 budget source and each CO2 budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source, in accordance with Subpart 242-2 of this Part, to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program or, for a general account, the natural person who is authorized, under Subpart 242-6 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the CAIR NOx Ozone Season Trading Program, CAIR NOx Annual Trading Program, or CAIR SO2 Trading Program then, for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the alternate CAIR designated representative under such programs. If the CO2 budget source is also subject to the Acid Rain Program, then for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the alternate designated representative under the Acid Rain Program.

(9) Attribute. A characteristic, claim, credit, benefit, emissions reduction, offset, allowance, allocation, howsoever characterized, denominated, measured or entitled, associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.

(10) Attribute credit. An attribute credit represents the attributes related to one megawatt-hour of electricity generation.

(11) Automated data acquisition and handling system or DAHS. That component of the continuous emissions monitoring system, or other emissions monitoring system approved for use under Subpart 242-8 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 242-8 of this Part.

(12) Award. The determination by the department of the number of CO2 offset allowances to be recorded in the general account of a project sponsor pursuant to section 242-10.7 of this Part. Award is a type of allocation.

(13) 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.

(14) CAIR NOx Annual Trading Program. A multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with 40 CFR part 96 subparts AA through II and 40 CFR 51.123(o)(1) or (2) or established by the administrator in accordance with subparts AA through II of 40 CFR part 97 and 40 CFR 51.123(p) and 52.35 (see Table 1, section 200.9 of this Title), as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

(15) CAIR NOx Ozone Season Trading Program. A multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the administrator in accordance with subparts AAAA through IIII of 40 CFR part 96 and 40 CFR 51.123(aa)(1) or (2) (and [bb][1]), (bb)(2), or (dd) or established by the administrator in accordance with subparts AAAA through IIII of 40 CFR part 97 and 40 CFR 51.123(ee) and 52.35 (see Table 1, section 200.9 of this Title), as a means of mitigating interstate transport of ozone and nitrogen oxides.

(16) CAIR SO2 Trading Program. A multi-state sulfur dioxide air pollution control and emission reduction program approved and administered by the administrator in accordance with subparts AAA through III of 40 CFR part 96 and 40 CFR 51.124(o)(1) or (2) or established by the administrator in accordance with subparts AAA through III of 40 CFR part 97 and 40 CFR 51.124(r) and 52.36 (see Table 1, section 200.9 of this Title), as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

(17) CO2 allowance. A limited authorization by the department or a participating state under the CO2 Budget Trading Program to emit up to one ton of CO2, subject to all applicable limitations contained in this Part. No provision of this regulation shall be construed to limit the authority of the department or a participating state to terminate or limit such authorization to emit. This limited authorization does not constitute a property right.

(18) CO2 allowance deduction or deduct CO2 allowances. The permanent withdrawal of CO2 allowances by the Department or its agent from a CO2 allowance tracking system compliance account to account for the number of tons of CO2 emitted from a CO2 budget source for a control period or an interim control period, determined in accordance with Subpart 242-8 of this Part, or for the forfeit or retirement of CO2 allowances as provided by this Part.

(19) CO2 allowances held or hold CO2 allowances. The CO2 allowances recorded by the department or its agent, or submitted to the department or its agent for recordation, in accordance with Subparts 242-6 and 242-7 of this Part, in a CO2 allowance tracking system account.

(20) CO2 allowance tracking system. The system by which the department or its agent records allocations, deductions, and transfers of CO2 allowances under the CO2 Budget Trading Program. The tracking system may also be used to track CO2 emissions offset projects, CO2 allowance prices and emissions from affected sources, and to determine the New York CO2 Budget Trading Program adjusted budget in accordance with section 242-5.2.

(21) CO2 allowance tracking system account. An account in the CO2 allowance tracking system established by the department or its agent for purposes of recording the allocation, holding, transferring, or deducting of CO2 allowances.

(22) CO2 allowance transfer deadline. Midnight of the March 1st occurring after the end of the relevant control period and each relevant interim control period or, if that March 1st is not a business day, midnight of the first business day thereafter and is the deadline by which CO2 allowances must be submitted for recordation in a CO2 budget source's compliance account in order for the source to meet the CO2 requirements of section 242-1.5(c) of this Subpart for the control period and each interim control period immediately preceding such deadline.

(23) CO2 authorized account representative. For a CO2 budget source and each CO2 budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source, in accordance with Subpart 242-2 of this Part, to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program or, for a general account, the natural person who is authorized, under Subpart 242-6 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the CAIR NOx Ozone Season Trading Program, CAIR NOx Annual Trading Program, or CAIR SO2 Trading Program then, for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the CAIR designated representative under such programs. If the CO2 budget source is also subject to the Acid Rain Program, then for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the designated representative under the Acid Rain Program.

(24) CO2 budget emissions limitation. For a CO2 budget source, the tonnage equivalent, in CO2 emissions in a control period or an interim control period, of the CO2 allowances available for compliance deduction for the source for a control period or an interim control period.

(25) CO2 budget permit. The portion of the legally binding permit issued by the department pursuant to Parts 201 and 621 of this Title to a CO2 budget source or CO2 budget unit which specifies all applicable CO2 Budget Trading Program requirements.

(26) CO2 budget source. A source that includes one or more CO2 budget units.

(27) CO2 Budget Trading Program. A multi-state CO2 air pollution control and emissions reduction program established pursuant to this Part and corresponding regulations in other states as a means of reducing emissions of CO2 from CO2 budget sources.

(28) CO2 Budget Trading Program adjusted budget. The New York CO2 Budget Trading Program adjusted budget is determined in accordance with section 242-5.2 and is the annual amount of CO2 tons available in New York for allocation in a given allocation year, in accordance with the CO2 Budget Trading Program. CO2 offset allowances allocated to project sponsors and CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the New York CO2 Budget Trading Program adjusted budget.

(29) CO2 Budget Trading Program base budget. The New York CO2 Budget Trading Program base budget is specified in section 242-5.1 of this Part. CO2 offset allowances allocated to project sponsors and CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the CO2 Budget Trading Program base budget.

(30) CO2 budget unit. A unit that is subject to the CO2 Budget Trading Program requirements under section 242-1.4 of this Subpart.

(31) CO2 cost containment reserve allowance or CO2 CCR allowance. A CO2 allowance that is offered for sale at an auction by NYSERDA or its agent for the purpose of containing the cost of CO2 Allowances. CO2 CCR allowances offered for sale at an auction are separate from and additional to CO2 allowances allocated from the CO2 Budget Trading Program base and adjusted budgets. CO2 CCR allowances are subject to all applicable limitations contained in this Part.

(32) CO2 equivalent. The quantity of a given greenhouse gas multiplied by its global warming potential (GWP).

(33) CO2 offset allowance. A CO2 allowance that is awarded to the sponsor of a CO2 emissions offset project pursuant to section 242-10.7 of this Part and is subject to the relevant compliance deduction limitations of section 242-6.5(a)(3) of this Part.

(34) 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.

(35) 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.

(36) Commence commercial operation. 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. For a unit that is a CO2 budget unit under section 242-1.4 of this Subpart 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. For a unit that is not a CO2 budget unit under section 242-1.4 of this Subpart on the date the unit commences commercial operation, the date the unit becomes a CO2 budget unit under section 242-1.4 of this Subpart shall be the unit's date of commencement of commercial operation.

(37) Commence operation. To begin any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. For a unit that is a CO2 budget unit under section 242-1.4 of this Subpart 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. For a unit that is not a CO2 budget unit under section 242-1.4 of this Subpart on the date of commencement of operation, the date the unit becomes a CO2 budget unit under section 242-1.4 of this Subpart shall be the unit's date of commencement of operation.

(38) Compliance account. A CO2 allowance tracking system account, established by the department or its agent for a CO2 budget source under Subpart 242-6 of this Part, in which are held CO2 allowances available for use by the source for a control period and each interim control period for the purpose of meeting the CO2 requirements of section 242-1.5(c) of this Subpart.

(39) Continuous emissions monitoring system or CEMS. The equipment required under Subpart 242-8 of this Part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated DAHS), a permanent record of stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR part 75 (see Table 1, section 200.9 of this Title) and Subpart 242-8 of this Part. The following systems are types of continuous emissions monitoring systems required under Subpart 242-8 of this Part.

(i) a flow monitoring system, consisting of a stack flow rate monitor and an automated data acquisition and handling system and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour (scfh);

(ii) a nitrogen oxides emissions rate (or NOx-diluent) monitoring system, consisting of a NOx pollutant concentration monitor, a diluent gas (CO2 or O2) monitor, and an automated data acquisition and handling system and providing a permanent, continuous record of NOx concentration, in parts per million (ppm), diluent gas concentration, in percent CO2 or O2; and NOx emissions rate, in pounds per million British thermal units (lb/MMBtu);

(iii) a moisture monitoring system, as defined in 40 CFR 75.11(b)(2) (see Table 1, section 200.9 of this Title) and providing a permanent, continuous record of the stack gas moisture content, in percent H2O;

(iv) a carbon dioxide monitoring system, consisting of a CO2 pollutant concentration monitor (or an oxygen monitor plus suitable mathematical equations from which the CO2 concentration is derived) and an automated data acquisition and handling system and providing a permanent, continuous record of CO2 emissions, in percent CO2; and

(v) an oxygen monitoring system, consisting of an O2 concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of O2, in percent O2.

(40) Control period. The control period is a three-calendar-year time period. The first control period was from January 1, 2009 to December 31, 2011, inclusive. Each subsequent sequential three-calendar-year period is a separate control period. The first two calendar years of each control period are each defined as an interim control period, beginning on January 1, 2015.

(41) Cost containment reserve trigger price, or CCR trigger price. The CCR trigger price is the minimum price at which CO2 CCR allowances are offered for sale by NYSERDA or its agent at an auction. The CCR trigger price shall be $4.00 per CO2 allowance for calendar year 2014, $6.00 per CO2 allowance in calendar year 2015, $8.00 per CO2 allowance in calendar year 2016, and $10.00 per CO2 allowance in calendar year 2017. Each calendar year thereafter, the CCR trigger price shall be 1.025 multiplied by the CCR trigger price from the previous calendar year, rounded to the nearest whole cent.

(42) Eligible biomass. Eligible biomass includes sustainably harvested woody and herbaceous fuel sources that are available on a renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricultural food and feed crop residues, and forest and mill residue. Eligible biomass may also include biogas derived from such fuel sources and animal wastes and other clean organic wastes not mixed with other solid waste. Liquid biofuels do not qualify as eligible biomass. Sustainably harvested as it applies to woody and herbaceous fuel sources will be determined by the department.

(43) Energy efficiency and clean energy technology account. A general account established and administered by the NYSERDA.

(44) Excess emissions. Any tonnage of CO2 emitted by a CO2 budget source during a control period that exceeds the CO2 budget emissions limitation for the source.

(45) Excess interim emissions. Any tonnage of CO2 emitted by a CO2 budget source during an interim control period multiplied by 0.50 that exceeds the CO2 budget emissions limitation for the source.

(46) First control period interim adjustment for banked allowances. An adjustment applied to the New York CO2 Budget Trading Program base budget for allocation years 2014 through 2020 to address the surplus allocation year 2009, 2010 and 2011 allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states.

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

(48) Fossil fuel-fired. One of the following:

(i) with regard to a unit that commenced operation prior to January 1, 2005, 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; or

(ii) with regard to a unit that commences operation on or after January 1, 2005, 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 five percent of the annual heat input on a Btu basis during any year.

(49) General account. A CO2 allowance tracking system account, established under Subpart 242-6 of this Part, that is not a compliance account.

(50) Global warming potential (GWP). A measure of the radiative efficiency (heat-absorbing ability) of a particular gas relative to that of carbon dioxide (CO2) after taking into account the decay rate of each gas (the amount removed from the atmosphere over a given number of years) relative to that of CO2. Global warming potentials used in this Part are consistent with the values used in the Intergovernmental Panel on Climate Change, Fourth Assessment Report, the Physical Science Basis (Working Group I), chapter 2, pages 212 and 213, 2007 (see Table 1, section 200.9 of this Title).

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

(52) Interim control period. An interim control period is a one-calendar-year time period, during each of the first and second calendar years of each three year control period. The first interim control period starts on January 1, 2015 and ends on December 31, 2015, inclusive. The second interim control period starts on January 1, 2016 and ends on December 31, 2016, inclusive. Each successive three year control period will have two interim control periods, comprised of each of the first two calendar years of that control period.

(53) Life-of-the-unit contractual arrangement. A unit participation power sales agreement under which a customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and/or associated energy from any specified unit pursuant to a contract:

(i) for the life of the unit;

(ii) for a cumulative term of no less than 25 years, including contracts that permit an election for early termination; or

(iii) for a period equal to or greater than 20 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.

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

(55) Maximum potential hourly heat input. An hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use appendix D of 40 CFR part 75 (see Table 1, section 200.9 of this Title) to report heat input, this value should be calculated, in accordance with 40 CFR part 75 (see Table 1, section 200.9 of this Title), using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with 40 CFR part 75 (see Table 1, section 200.9 of this Title), using the maximum potential flow rate and either the maximum carbon dioxide concentration (in percent CO2) or the minimum oxygen concentration (in percent O2).

(56) Minimum reserve price (MRP). The minimum reserve price in calendar year 2014 shall be $2.00. Each calendar year thereafter the minimum reserve price shall be 1.025 multiplied by the minimum reserve price from the previous calendar year, rounded to the nearest whole cent.

(57) Monitoring system. Any monitoring system that meets the requirements of Subpart 242-8 of this Part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.

(58) 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.

(59) Net electrical output. 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.

(60) Non-CO2 budget unit. A unit that does not meet the applicability criteria of section 242-1.4 of this Subpart.

(61) Operator. Any person who operates, controls, or supervises a CO2 budget unit or a CO2 budget source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

(62) Owner. Any of the following persons:

(i) any holder of any portion of the legal or equitable title in a CO2 budget unit; or

(ii) any holder of a leasehold interest in a CO2 budget unit, other than 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 CO2 budget unit; or

(iii) any purchaser of power from a CO2 budget unit under a life-of-the-unit contractual arrangement in which the purchaser controls the dispatch of the unit; or

(iv) with respect to any general account, any person who has an ownership interest with respect to the CO2 allowances held in the general account and who is subject to the binding agreement for the CO2 authorized account representative to represent that person's ownership interest with respect to the CO2 allowances.

(63) Participating state. A state that has established a corresponding regulation as part of the CO2 Budget Trading Program.

(64) Primary fuel. Of the different fuels used, the fuel to which the highest proportion of the heat input is attributable.

(65) 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.

(66) Recordation, record, or recorded. With regard to CO2 allowances, the movement of CO2 allowances by the department or its agent from one CO2 allowance tracking system account to another, for purposes of allocation, transfer, or deduction.

(67) Reserve Price. The minimum acceptable price for each CO2 allowance in a specific auction. The reserve price at an auction is either the minimum reserve price or the CCR trigger price as specified in subdivision 242-5.3(b).

(68) Second control period interim adjustment for banked allowances. An adjustment applied to the New York CO2 Budget Trading Program base budget for allocation years 2015 through 2020 to address the surplus allocation year 2012 and 2013 allowances held in general and compliance accounts, including compliance accounts established pursuant to the CO2 Budget Trading Program, but not including accounts opened by participating states, that are in addition to the aggregate quantity of 2012 and 2013 emissions from all CO2 budget sources in all the participating states.

(69) Serial number. When referring to CO2 allowances, the unique identification number assigned to each CO2 allowance by the department or its agent under section 242-6.4(b) of this Part.

(70) Source. Any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any air pollutant. A source, including a source with multiple units, shall be considered a single facility.

(71) State. A state, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.

(72) 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.

(73) Ton or tonnage. Any "short ton", or 2,000 pounds. For the purpose of determining compliance with the CO2 requirements of section 242-1.5(c) of this Subpart, total tons for a control period and each interim 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 242-8 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. A short ton is equal to 0.9072 metric tons.

(74) Total net output. The total net megawatt hours, calculated utilizing the following formula:

Total net output = (EO + (TO/3.413)

Where:

"EO" is the total net electrical output from the CO2 budget unit;

"TO" is the total useful thermal energy from the CO2 budget unit in MMBtu;

"3.413" is the factor used to convert useful thermal energy from MMBtu to MWh, 3.413 MMBtu = 1 MWh.

(75) Undistributed CO2 allowance. CO2 allowances originally allocated to a set-aside account pursuant to section 242-5.3 that were not distributed.

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

(77) Unit operating day. A calendar day in which a unit combusts any fuel.

(78) Unsold allowance. A CO2 allowance that has been made available for sale in an auction, but not sold.

(79) Voluntary renewable energy purchase. A purchase of electricity from renewable energy generation or renewable energy attribute credits by a retail electricity customer on a voluntary basis. Renewable energy includes electricity generated from a source built on or after January 1, 2003 that is contained in the revised list of eligible electric generation technologies in the New York State Public Service Commission's Order on Customer-Sited Tier Implementation issued and effective June 28, 2006, attached as appendix B in the New York State Public Service Commission's Order Regarding Retail Renewable Portfolio Standard, issued and effective September 24, 2004, except for electricity generated from a CO2 budget source that co-fires eligible biomass as a compliance mechanism and for which the CO2 authorized account representative requests the retirement of CO2 allowances pursuant to subdivision 242-5.3(c) of this Part. The renewable energy generation or renewable energy attribute credits related to such purchases may not be used by the generator or purchaser to meet any regulatory mandate, such as a renewable portfolio standard.

§242-1.3 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-pound.

(e) mmBtu-million Btu.

(f) MWe-megawatt electrical.

(g) MWh-megawatt hours.

§242-1.4 Applicability

(a) Units. Any unit that, at any time on or after January 1, 2005, serves an electricity generator with a nameplate capacity equal to or greater than 25 MWe shall be a CO2 budget unit, and any source that includes one or more such units shall be a CO2 budget source, subject to the requirements of this Part.

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

(1) Applicability. Notwithstanding subdivision (a) of this section, any unit that, on or before December 1, 2008, applied for an enforceable permit condition restricting the supply of the unit's annual electrical output to the electric grid to less than or equal to 10 percent of the annual gross generation of the unit, and that from and after January 1, 2009 complies with the 10 percent restriction and the provisions in paragraph (3) of this subdiviion, shall be exempt from the requirements of this Part, except for the provisions of this section, sections 242-1.2, 242-1.3, and 242-1.6 of this Subpart.

(2) Effective date. The exemption under paragraph (1) of this subdivision shall become effective as of January 1, 2009 and remain in effect unless and until the unit loses its exemption under subparagraph (3)(v) of this subdivision.

(3) Compliance.

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

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

(iii) For a period of 10 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. The 10-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 annual gross generation that may be supplied to the electric grid.

(iv) The owners and operators and, to the extent applicable, the CO2 authorized account representative of a unit exempt under paragraph (1) of this subdivision shall comply with all the requirements of this Part concerning all time 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 annual 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 in any year that commences on or after January 1, 2009; or

(b) the first date on which the unit fails to comply, or on which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in paragraph (1) of this subdivision during any year that commences on or after January 1, 2009.

(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 242-3 of this Part, allocating allowances under Subpart 242-5 of this Part, and applying monitoring requirements under Subpart 242-8 of this Part, the unit shall be treated as commencing operation on the date the unit loses its exemption.

(4) Reduction in CO2 Budget Trading Program base budget. In the event that a unit applies for and receives a permit condition that renders the unit exempt under this subdivision, then the department shall reduce the CO2 Budget Trading Program base budget to remove the number of tons equal to the unit's average annual emissions from the previous three calendar years.

§242-1.5 Standard requirements

(a) Permit requirements.

(1) Each CO2 budget source is required to modify its permit pursuant to Parts 201 and 621 of this Title to include all applicable requirements of the CO2 Budget Trading Program.

(2) The owners and operators of each CO2 budget source required to have an operating permit pursuant to Part 201 of this Title and each CO2 budget unit required to have an operating permit pursuant to Part 201 of this Title for the source shall have a CO2 budget permit and operate the CO2 budget source and the CO2 budget unit at the source in compliance with such CO2 budget permit.

(b) Monitoring requirements.

(1) The owners and operators and, to the extent applicable, the CO2 authorized account representative of each CO2 budget source and each CO2 budget unit at the source shall comply with the monitoring requirements of Subpart 242-8 of this Part.

(2) The emissions measurements recorded and reported in accordance with Subpart 242-8 of this Part shall be used to determine compliance by the unit with the CO2 requirements under subdivision (c) of this section.

(c) CO2 requirements.

(1) The owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold CO2 allowances available for compliance deductions under section 242-6.5 of this Part, as of the CO2 allowance transfer deadline, in the source's compliance account in an amount not less than the total CO2 emissions for the control period from all CO2 budget units at the source, less the CO2 allowances deducted to meet the requirements of paragraph 242-1.5(c)(2) with respect to the previous two interim control periods, as determined in accordance with Subparts 242-6 and 242-8 of this Part.

(2) The owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold CO2 allowances available for compliance deductions under section 242-6.5, as of the CO2 allowance transfer deadline, in the source's compliance account in an amount not less than the total CO2 emissions for the interim control period from all CO2 budget units at the source multiplied by 0.50, as determined in accordance with Subparts 242-6 and 242-8.

(3) Each ton of CO2 emitted in excess of the CO2 budget emissions limitation for a control period shall constitute a separate violation of this Part and applicable State law.

(4) Each ton of excess interim emissions shall constitute a separate violation of this Part and applicable state law.

(5) A CO2 budget unit shall be subject to the requirements under paragraph (1) of this subdivision starting on the later, of January 1, 2009 or the date on which the unit commences operation.

(6) CO2 allowances shall be held in, deducted from, or transferred among CO2 allowance tracking system accounts in accordance with Subparts 242-5, 242-6, and 242-7, and section 242-10.7 of this Part.

(7) A CO2 allowance shall not be deducted, in order to comply with the requirements under paragraph (1) or (2) of this subdivision, for a control period or interim control period that ends prior to the allocation year for which the CO2 allowance was allocated. A CO2 offset allowance shall not be deducted, in order to comply with the requirements under paragraph (1) or (2) of this subdivision, beyond the applicable percent limitations set out in section 242-6.5(a)(3) of this Part.

(8) A CO2 allowance under the CO2 Budget Trading Program is a limited authorization by the department or a participating state to emit one ton of CO2 in accordance with the CO2 Budget Trading Program. No provision of the CO2 Budget Trading Program, the CO2 budget permit application, or the CO2 budget permit or any provision of law shall be construed to limit the authority of the department or a participating state to terminate or limit such authorization.

(9) A CO2 allowance under the CO2 Budget Trading Program does not constitute a property right.

(d) Excess emissions requirements. The owners and operators of a CO2 budget source that has excess emissions in any control period, or excess interim emissions for any interim control period, shall:

(1) forfeit the CO2 allowances required for deduction under section 242-6.5(d)(1) of this Part, provided CO2 offset allowances may not be used to cover any part of such excess emissions; and

(2) pay any fine, penalty, or assessment or comply with any other remedy imposed under section 242-6.5(d)(2) of this Part.

(e) Recordkeeping and reporting requirements.

(1) Unless otherwise provided, the owners and operators of the CO2 budget source and each CO2 budget unit at the source shall keep on site at the source each of the following documents for a period of 10 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 10 years, in writing by the department.

(i) The account certificate of representation for the CO2 authorized account representative for the source and each CO2 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 242-2.4 of this Part, provided that the certificate and documents shall be retained on site at the source beyond such 10-year period until such documents are superseded because of the submission of a new account certificate of representation.

(ii) All emissions monitoring information, in accordance with Subpart 242-8 of this Part and 40 CFR 75.57 (see Table 1, section 200.9 of this Title).

(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the CO2 Budget Trading Program.

(iv) Copies of all documents used to complete a CO2 budget permit application and any other submission under the CO2 Budget Trading Program or to demonstrate compliance with the requirements of the CO2 Budget Trading Program.

(2) The CO2 authorized account representative of a CO2 budget source and each CO2 budget unit at the source shall submit the reports and compliance certifications required under the CO2 Budget Trading Program, including those under Subpart 242-4 of this Part.

(f) Liability.

(1) No permit revision shall excuse any violation of the requirements of the CO2 Budget Trading Program that occurs prior to the date that the revision takes effect.

(2) Any provision of the CO2 Budget Trading Program that applies to a CO2 budget source (including a provision applicable to the CO2 authorized account representative of a CO2 budget source) shall also apply to the owners and operators of such source and of the CO2 budget units at the source.

(3) Any provision of the CO2 Budget Trading Program that applies to a CO2 budget unit (including a provision applicable to the CO2 authorized account representative of a CO2 budget unit) shall also apply to the owners and operators of such unit.

(g) Effect on other authorities.

(1) No provision of the CO2 Budget Trading Program, a CO2 budget permit application, or a CO2 budget permit, shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the CO2 authorized account representative of a CO2 budget source or CO2 budget unit from compliance with any other provisions of applicable State and Federal law and regulations.

§242-1.6 Computation of time

(a) Unless otherwise stated, any time period scheduled, under the CO2 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 CO2 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 CO2 Budget Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.

§242-1.7 Severability

If any provision of this Part, or its application to any particular person or circumstances, is held invalid, the remainder of this Part, and the application thereof to other persons or circumstances, shall not be affected thereby.