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Subpart 242-2: Authorized Account Representative for CO2 Budget Sources

(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.

§242-2.1 Authorization and responsibilities of the CO2 authorized account representative

(a) Except as provided under section 242-2.2 of this Part, each CO2 budget source, including all CO2 budget units at the source, shall have one and only one CO2 authorized account representative, with regard to all matters under the CO2 Budget Trading Program concerning the source or any CO2 budget unit at the source.

(b) The CO2 authorized account representative of the CO2 budget source shall be selected by an agreement binding on the owners and operators of the source and all CO2 budget units at the source.

(c) Upon receipt by the department or its agent of a complete account certificate of representation under section 242-2.4 of this Subpart, the CO2 authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CO2 budget source represented and each CO2 budget unit at the source in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CO2 authorized account representative by the department or a court regarding the source or unit.

(d) No CO2 budget permit shall be issued, and no CO2 allowance tracking system account shall be established for a CO2 budget source, until the department or its agent has received a complete account certificate of representation under section 242-2.4 of this Subpart for a CO2 authorized account representative of the source and the CO2 budget units at the source.

(e) Each submission under the CO2 Budget Trading Program shall be submitted, signed, and certified by the CO2 authorized account representative for each CO2 budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CO2 authorized account representative: "I am authorized to make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."

(f) The department or its agent will accept or act on a submission made on behalf of owners or operators of a CO2 budget source or a CO2 budget unit only if the submission has been made, signed, and certified in accordance with subdivision (e) of this section.

§242-2.2 Alternate CO2 authorized account representative

(a) An account certificate of representation may designate one and only one alternate CO2 authorized account representative who may act on behalf of the CO2 authorized account representative. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account representative to act in lieu of the CO2 authorized account representative.

(b) Upon receipt by the department or its agent of a complete account certificate of representation under section 242-2.4 of this Subpart, any representation, action, inaction, or submission by the alternate CO2 authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CO2 authorized account representative.

(c) Except in this section and sections 242-2.1(a), 242-2.3, 242-2.4 of this Subpart and section 242-6.2 of this Part, whenever the term "CO2 authorized account representative" is used in this Part, the term shall be construed to include the alternate CO2 authorized account representative.

§242-2.3 Changing the CO2 authorized account representative and the alternate CO2 authorized account representative; changes in the owners and operators

(a) Changing the CO2 authorized account representative. The CO2 authorized account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under section 242-2.4 of this Subpart. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or alternate CO2 authorized account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new CO2 authorized account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.

(b) Changing the alternate CO2 authorized account representative. The alternate CO2 authorized account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under section 242-2.4 of this Subpart. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or alternate CO2 authorized account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new alternate CO2 authorized account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.

(c) Changes in the owners and operators.

(1) In the event a new owner or operator of a CO2 budget source or a CO2 budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the CO2 authorized account representative and any alternate CO2 authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the department, as if the new owner or operator were included in such list.

(2) Within 30 days following any change in the owners and operators of a CO2 budget source or a CO2 budget unit, including the addition of a new owner or operator, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a revision to the account certificate of representation amending the list of owners and operators to include the change.

§242-2.4 Account certificate of representation

(a) A complete account certificate of representation for a CO2 authorized account representative or an alternate CO2 authorized account representative shall include the following elements in a format prescribed by the department or its agent:

(1) identification of the CO2 budget source and each CO2 budget unit at the source for which the account certificate of representation is submitted;

(2) the name, address, e-mail address, and telephone number of the CO2 authorized account representative and any alternate CO2 authorized account representative;

(3) a list of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source;

(4) the following certification statement by the CO2 authorized account representative and any alternate CO2 authorized account representative: "I certify that I was selected as the CO2 authorized account representative or alternate CO2 authorized account representative, as applicable, by an agreement binding on the owners and operators of the CO2 budget source and each CO2 budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the department or a court regarding the source or unit."; and

(5) the signature of the CO2 authorized account representative and any alternate CO2 authorized account representative and the dates signed.

(b) Unless otherwise required by the department or its agent, documents of agreement referred to in the account certificate of representation shall not be submitted to the department or its agent. Neither the department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

§242-2.5 Objections concerning the CO2 authorized account representative

(a) Once a complete account certificate of representation under section 242-2.4 of this Subpart has been submitted and received, the department and its agent will rely on the account certificate of representation unless and until the department or its agent receives a superseding complete account certificate of representation under section 242-2.4 of this Subpart.

(b) Except as provided in section 242-2.3(a) or (b) of this Subpart, no objection or other communication submitted to the department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative shall affect any representation, action, inaction, or submission of the CO2 authorized account representative or the finality of any decision or order by the department or its agent under the CO2 Budget Trading Program.

(c) Neither the department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CO2 authorized account representative, including private legal disputes concerning the proceeds of CO2 allowance transfers.

§242-2.6 Delegation by CO2 authorized account representative and alternate CO2 authorized account representative

(a) A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent under this Part.

(b) An alternate CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent under this Part.

(c) In order to delegate authority to make an electronic submission to the department or its agent in accordance with subdivisions (a) and (b) of this section, the CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, must submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:

(1) the name, address, e-mail address, and telephone number of such CO2 authorized account representative or alternate CO2 authorized account representative;

(2) the name, address, e-mail address, and telephone number of each such natural person, herein referred to as the "electronic submission agent";

(3) for each such natural person, a list of the type of electronic submissions under subdivision (a) or (b) of this section for which authority is delegated to him or her; and

(4) the following certification statements by such CO2 authorized account representative or alternate CO2 authorized account representative:

(i) "I agree that any electronic submission to the department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under subdivision (d) of this section shall be deemed to be an electronic submission by me."

(ii) "Until this notice of delegation is superseded by another notice of delegation under subdivision (d) of this section, I agree to maintain an e-mail account and to notify the department or its agent immediately of any change in my e-mail address unless all delegation authority by me under Section 242-2.6 is terminated."

(d) A notice of delegation submitted under subdivision (c) of this section shall be effective, with regard to the CO2 authorized account representative or alternate CO2 authorized account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.

(e) Any electronic submission covered by the certification in subparagraph (c)(4)(i) of this section and made in accordance with a notice of delegation effective under subdivision (d) of this section shall be deemed to be an electronic submission by the CO2 authorized account representative or alternate CO2 authorized account representative submitting such notice of delegation.