Express Terms Part 243, CAIR NOx Ozone Season Trading Program

Subpart 243-1 CAIR NOx Ozone Season Trading Program General Provisions

243-1.1 Purpose.
243-1.2 Definitions.
243-1.3 Measurements, abbreviations, and acronyms.
243-1.4 Applicability.
243-1.5 Retired unit exemption.
243-1.6 Standard requirements.
243-1.7 Computation of time.
243-1.8 Appeal procedures.

Subpart 243-2 CAIR Designated Representative for CAIR NOx Ozone Season Sources

243-2.1 Authorization and responsibilities of CAIR designated representative
243-2.2 Alternate CAIR designated representative
243-2.3 Changing CAIR designated representative and alternate CAIR designated representative; changes in owners and operators
243-2.4 Certificate of representation
243-2.5 Objections concerning CAIR designated representative.
243-2.6 Delegation by CAIR designated representative and alternate CAIR designated representative.

Subpart 243-3 Permits

243-3.1 General CAIR NOx Ozone Season Trading Program permit requirements.
243-3.2 Submission of CAIR permit applications.
243-3.3 Information requirements for CAIR permit applications.
243-3.4 CAIR permit conditions.
243-3.5 CAIR permit revisions.

Subpart 243-4 Reserved

Subpart 243-5 CAIR NOx Ozone Season Allowance Allocations

243-5.1 CAIR NOx Ozone Season trading program budgets.
243-5.2 Timing requirements for CAIR NOx Ozone Season allowance allocations.
243-5.3 CAIR NOx Ozone Season allowance allocations.

Subpart 243-6 CAIR NOx Ozone Season Allowance Tracking System

243-6.1 Reserved.
243-6.2 Establishment of accounts.
243-6.3 Responsibilities of CAIR authorized account representative.
243-6.4 Recordation of CAIR NOx Ozone Season allowance allocations.
243-6.5 Compliance with CAIR NOx emissions limitation.
243-6.6 Banking.
243-6.7 Account error.
243-6.8 Closing of general accounts.

Subpart 243-7 CAIR NOx Ozone Season Allowance Transfers

243-7.1 Submission of CAIR NOx Ozone Season allowance transfers.
243-7.2 EPA recordation.
243-7.3 Notification.

Subpart 243-8 Monitoring and Reporting

243-8.1 General requirements.
243-8.2 Initial certification and recertification procedures.
243-8.3 Out of control periods.
243-8.4 Notifications.
243-8.5 Recordkeeping and reporting.
243-8.6 Petitions.

Subpart 243-9 CAIR NOx Ozone Season Opt-in Units

243-9.1 Applicability.
243-9.2 General.
243-9.3 CAIR designated representative.
243-9.4 Applying for CAIR opt-in permit.
243-9.5 Opt-in process.
243-9.6 CAIR opt-in permit contents.
243-9.7 Withdrawal from CAIR NOx Ozone Season Trading Program.
243-9.8 Change in regulatory status.
243-9.9 NOx allowance allocations to CAIR NOx Ozone Season opt-in units.

Subpart 243-1 CAIR NOx Ozone Season Trading Program General Provisions

243-1.1 Purpose.

This part establishes the New York State component of the Clean Air Interstate Rule (CAIR) NOx Ozone Season Trading Program, which is designed to mitigate interstate transport of ozone and nitrogen oxides, an ozone precursor. The department authorizes the Administrator to assist the department in implementing the CAIR NOx Ozone Season Trading Program by performing the functions set forth for the Administrator in this Part.

243-1.2 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 Administrator to each CAIR NOx Ozone Season Allowance Tracking System account.

(2) 'Acid Rain emissions limitation.' A limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program.

(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 Act and 40 CFR Parts 72 through 78.

(4) 'Allocate or allocation.' With regard to CAIR NOx Ozone Season allowances, the determination by a permitting authority or the Administrator of the amount of such CAIR NOx Ozone Season allowances to be initially credited to a CAIR NOx Ozone Season unit, the new CAIR NOx Ozone Season unit set-aside, or other entity.

(5) 'Allowance transfer deadline.' For a control period, midnight of November 30 (if it is a business day), or midnight of the first business day thereafter (if November 30 is not a business day), immediately following the control period and is the deadline by which a CAIR NOx Ozone Season allowance transfer must be submitted for recordation in a CAIR NOx Ozone Season source's compliance account in order to be used to meet the source's CAIR NOx Ozone Season emissions limitation for such control period in accordance with section 243-6.5.

(6) 'Alternate CAIR designated representative.' For a CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Subparts 243-2 and 243-9, to act on behalf of the CAIR designated representative in matters pertaining to the CAIR NOx Ozone Season Trading Program. If the CAIR NOx Ozone Season source is also a CAIR NOx source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR NOx Annual Trading Program. If the CAIR NOx Ozone Season source is also a CAIR SO2 source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR SO2 Trading Program. If the CAIR NOx Ozone Season source is also subject to the Acid Rain Program, then this natural person shall be the same person as the alternate designated representative under the Acid Rain Program. If the CAIR NOx Ozone Season source is subject to the Mercury Reduction Program for Coal-Fired Electric Utility Steam Generating Units (6 NYCRR Part 246), then this natural person shall be the same person as the owner or operator required to submit monitoring and compliance data pursuant to Part 246

(7) 'Automated data acquisition and handling system or DAHS.' The component of the continuous emission monitoring system, or other emissions monitoring system approved for use under Subpart 243-8, 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 243-8.

(8) '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.

(9) 'Bottoming-cycle cogeneration unit.' A cogeneration unit in which the energy input to the unit is first used to produce useful thermal energy and at least some of the reject heat from the useful thermal energy application or process is then used for electricity production.
(10) 'CAIR authorized account representative.' With regard to a general account, a responsible natural person who is authorized, in accordance with Subparts 243-2, 243-6 and 243-9, to transfer and otherwise dispose of CAIR NOx Ozone Season allowances held in the general account and, with regard to a compliance account, the CAIR designated representative of the source.

(11) 'CAIR designated representative.' For a CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit at the source, the natural person who is authorized by the owners and operators of the source and all such units at the source, in accordance with Subparts 243-2 and 243-9, to represent and legally bind each owner and operator in matters pertaining to the CAIR NOx Ozone Season Trading Program. If the CAIR NOx Ozone Season source is also a CAIR NOx source, then this natural person shall be the same person as the CAIR designated representative under the CAIR NOx Annual Trading Program. If the CAIR NOx Ozone Season source is also a CAIR SO2 source, then this natural person shall be the same person as the CAIR designated representative under the CAIR SO2 Trading Program. If the CAIR NOx Ozone Season source is also subject to the Acid Rain Program, then this natural person shall be the same person as the designated representative under the Acid Rain Program. If the CAIR NOx Ozone Season source is subject to the Mercury Reduction Program for Coal-Fired Electric Utility Steam Generating Units (6 NYCRR Part 246), then this natural person shall be the same person as the owner or operator required to submit monitoring and compliance data pursuant to Part 246.

(12) 'CAIR NOx Annual Trading Program.' A multi-state nitrogen oxides air pollution control and emission reduction program, established pursuant to Part 244 of this Title and corresponding regulations in other States promulgated in accordance with 40 CFR 51.123(o)(1) or (2), along with any Federal Implementation Plan imposed by the Administrator in accordance with 40 CFR 97.101-188, 40 CFR 51.123(p), and 40 CFR 52.35 as a means of mitigating interstate transport of fine particulates and nitrogen oxides.

(13) 'CAIR NOx Ozone Season allowance.' A limited authorization issued by a permitting authority or the Administrator under provisions of a State implementation plan that are approved under 40 CFR Part 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee), or under Subpart EEEE of 40 CFR Part 97 or 40 CFR 97.388, to emit one ton of nitrogen oxides during a control period of the specified calendar year for which the authorization is allocated or of any calendar year thereafter under the CAIR NOx Ozone Season Trading Program or a limited authorization issued by a permitting authority for a control period during 2003 through 2008 under the NOx Budget Trading Program in accordance with 40 CFR Part 51.121(p) to emit one ton of nitrogen oxides during a control period, provided that the provision in 40 CFR Part 51.121(b)(2)(ii)(E) shall not be used in applying this definition and the limited authorization shall not have been used to meet the allowance-holding requirement under the NOx Budget Trading Program. An authorization to emit nitrogen oxides that is not issued under provisions of a State Implementation Plan approved under 40 CFR Part 51.123(aa)(1) or (2) (and (bb)(1)), (bb)(2), (dd), or (ee), or subpart EEEE of 40 CFR Part 97 or 40 CFR 97.388 or under the NOx Budget Trading Program as described in the prior sentence shall not be a CAIR NOx Ozone Season allowance.

(14) 'CAIR NOx Ozone Season allowance deduction or deduct CAIR NOx Ozone Season allowances.' The permanent withdrawal of CAIR NOx Ozone Season allowances by the Administrator from a compliance account, e.g., in order to account for a specified number of tons of total nitrogen oxides emissions from all CAIR NOx Ozone Season units at a CAIR NOx Ozone Season source for a control period, determined in accordance with Subpart 243-8, or to account for excess emissions.

(15) 'CAIR NOx Ozone Season Allowance Tracking System.' The system by which the Administrator records allocations, deductions, and transfers of CAIR NOx Ozone Season allowances under the CAIR NOx Ozone Season Trading Program. Such allowances will be allocated, held, deducted, or transferred only as whole allowances.

(16) 'CAIR NOx Ozone Season Allowance Tracking System account.' An account in the CAIR NOx Ozone Season Allowance Tracking System established by the Administrator for purposes of recording the allocation, holding, transferring, or deducting of CAIR NOx Ozone Season allowances.

(17) 'CAIR NOx Ozone Season allowances held or hold CAIR NOx Ozone Season allowances.' The CAIR NOx Ozone Season allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with Subparts 243-6, 243-7, and 243-9, in a CAIR NOx Ozone Season Allowance Tracking System account.

(18) 'CAIR NOx Ozone Season emissions limitation.' For a CAIR NOx Ozone Season source, the tonnage equivalent, in NOx emissions in a control period, of the CAIR NOx Ozone Season allowances available for deduction for the source under sections 243-6.5(a) and (b) for the control period.

(19) 'CAIR NOx Ozone Season Trading Program.' A multi-state nitrogen oxides air pollution control and emission reduction program established pursuant to this Part and corresponding regulations in other States promulgated in accordance with 40 CFR 51.123(aa)(1) or (2)(and(bb)(1)), (bb)(2), or (dd) along with any Federal Implementation Plan imposed by the Administrator in accordance 40 CFR 97.301-388, 40 CFR 51.123(ee), and 40 CFR 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.

(20) 'CAIR NOx Ozone Season source.' A source that includes one or more CAIR NOx Ozone Season units.

(21) 'CAIR NOx Ozone Season unit.' A unit that is subject to the CAIR NOx Ozone Season Trading Program under section 243-1.4 and, except for purposes of section 243-1.5 and Subpart 243-5, a CAIR NOx Ozone Season opt-in unit under Subpart 243-9.

(22) 'CAIR NOx source.' A source that is subject to the CAIR NOx Annual Trading Program.

(23) 'CAIR permit.' The portion of the legally binding and federally enforceable written permit, issued by the department under Subpart 243-3 and Parts 201 and 621 of this Title, including any permit revisions, specifying the CAIR NOx Ozone Season Trading Program requirements applicable to a CAIR NOx Ozone Season source, to each CAIR NOx Ozone Season unit at the source, and to the owners and operators and the CAIR designated representative of the source and each such unit.

(24) 'CAIR SO2 source.' A source that is subject to the CAIR SO2 Trading Program.

(25) 'CAIR SO2 Trading Program.' A multi-state sulfur dioxide air pollution control and emission reduction program established pursuant to Part 245 of this Title and corresponding regulations in other States promulgated in accordance with 40 CFR 51.124(o)(1) or (2) along with any Federal Implementation Plan imposed by the Administrator in accordance 40 CFR 97.201-288 and 40 CFR Part 51.124(r) and 52.36, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.

(26) 'Coal.' Any solid fuel classified as anthracite, bituminous, subbituminous, or lignite.

(27) 'Coal-derived fuel.' Any fuel (whether in a solid, liquid, or gaseous state) produced by the mechanical, thermal, or chemical processing of coal.

(28) 'Coal-fired.' Combusting any amount of coal or coal-derived fuel, alone, or in combination with any amount of any other fuel, during any year.

(29) 'Cogeneration unit.' A stationary, fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine:

(i) Having equipment used to produce electricity and useful thermal energy for industrial, commercial, heating, or cooling purposes through the sequential use of energy; and

(ii) Producing during the 12-month period starting on the date the unit first produces electricity and during any calendar year after the calendar year in which the unit first produces electricity -

('a') For a topping-cycle cogeneration unit,

('1') Useful thermal energy not less than five percent of total energy output; and

('2') Useful power that, when added to one-half of useful thermal energy produced, is not less then 42.5 percent of total energy input, if useful thermal energy produced is 15 percent or more of total energy output, or not less than 45 percent of total energy input, if useful thermal energy produced is less than 15 percent of total energy output.

('b') For a bottoming-cycle cogeneration unit, useful power not less than 45 percent of total energy input.

(30) 'Combustion turbine.'

(i) An enclosed device comprising a compressor, a combustor, and a turbine and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine; and

(ii) If the enclosed device under subparagraph (i) of this paragraph is combined cycle, any associated duct burner, heat recovery steam generator and steam turbine.

(31) 'Commence commercial operation.' With regard to a unit:

(i) To have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation, except as provided in sections 243-1.5 and 243-9.5(h).

('a') For a unit that is a CAIR NOx Ozone Season unit under section 243-1.4 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in subparagraph (i) of this paragraph and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

('b') For a unit that is a CAIR NOx Ozone Season unit under section 243-1.4 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in subparagraph (i) of this paragraph and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of commercial operation as defined in subparagraph (i) or (ii) of this paragraph as appropriate.

(ii) Notwithstanding subparagraph (i) of this paragraph and except as provided in section 243-1.5, for a unit that is not a CAIR NOx Ozone Season unit under section 243-1.4 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in subparagraph (i) of this paragraph, the unit's date for commencement of commercial operation shall be the date on which the unit becomes a CAIR NOx Ozone Season unit under section 243-1.4.

('a') For a unit with a date for commencement of commercial operation as defined in subparagraph (ii) of this paragraph and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

('b') For a unit with a date for commencement of commercial operation as defined in subparagraph (ii) of this paragraph and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of commercial operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of
commercial operation as defined in subparagraph (i) or (ii) of this paragraph as appropriate.

(iii) Notwithstanding paragraphs (i) and (ii) of this definition, for a unit not serving a generator producing electricity for sale, the unit's date of commencement of operation shall also be the unit's date of commencement of commercial operation.

(32) 'Commence operation.'

(i) (a)To have begun any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber, except as provided in section 243-9.5(h).

(b) For a unit that undergoes a physical change (other than replacement of the unit by a unit at the same source) after the date the unit commences operation as defined in subparagraph (i) of this paragraph, such date shall remain the date of commencement of operation of the unit, which shall continue to be
treated as the same unit.

(c) For a unit that is replaced by a unit at the same source (e.g., repowered) after the date the unit commences operation as defined in subparagraph (i) of this paragraph, such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in subparagraph (i), (ii), or (iii) of this paragraph as appropriate, except as provided in section 243-9.5(h).

(ii) Notwithstanding subparagraph (i) of this paragraph, and solely for purposes of Subpart 243-8, for a unit that is not a CAIR NOx Ozone Season unit under sections 243-1.4(a)(1)(iii), (a)(2), or (a)(3) on the later of November 15, 1990 or the date the unit commences operation as defined in subparagraph (i) of this paragraph and that subsequently becomes such a CAIR NOx Ozone Season unit, the unit's date for commencement of operation shall be the date on which the unit becomes a CAIR NOx Ozone Season unit under sections 243-1.4(a)(1)(iii), (a)(2), or (a)(3).

(a) For a unit with a date of commencement of operation as defined in subparagraph (ii) of this paragraph and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of operation of the unit, which shall continue to be treated as the same unit.

(b) For a unit with a date for commencement of operation as defined in subparagraph (ii) of this paragraph and that is subsequently replaced by a unit at the same source (e.g., repowered), such date shall remain the replaced unit's date of commencement of operation, and the replacement unit shall be treated as a separate unit with a separate date for commencement of operation as defined in subparagraph (i) or (ii) of this paragraph as appropriate.

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

(34) 'Compliance account.' A CAIR NOx Ozone Season Allowance Tracking System account, established by the Administrator for a CAIR NOx Ozone Season source under Subpart 243-6 or 243-9, in which any CAIR NOx Ozone Season allowance allocations for the CAIR NOx Ozone Season units at the source are initially recorded and in which are held any CAIR NOx Ozone Season allowances available for use for a control period in order to meet the source's CAIR NOx Ozone Season emissions limitation in accordance with section 243-6.5.

(35) 'Continuous emission monitoring system or CEMS.' The equipment required under Subpart 243-8 to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated data acquisition and handling system (DAHS)), a permanent record of nitrogen oxides emissions, 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. The following systems are the principal types of continuous emission monitoring systems required under Subpart 243-8:

(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 concentration monitoring system, consisting of a NOx pollutant concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of NOx emissions, in parts per million (ppm);

(iii) a nitrogen oxides emission rate (or NOx -diluent) monitoring system, consisting of a NOx pollutant concentration monitor, a diluent gas (CO2 or O2) monitor, and an automated 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 emission rate, in pounds per million British thermal units (lb/mmBtu);

(iv) a moisture monitoring system, as defined in 40 CFR 75.11(b)(2) and providing a permanent, continuous record of the stack gas moisture content, in percent H2O;

(v) 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

(vi) 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.

(36) 'Control period or ozone season.' The period beginning May 1 of a calendar year, except as provided in section 243-1.6(c)(2), and ending on September 30 of the same year, inclusive.

(37) 'Control period potential to emit or CPPTE.' The maximum capacity of a CAIR NOx Ozone Season unit to emit NOx under its physical and operational design during a control period. Any physical or operational limitation on the capacity of a CAIR NOx Ozone Season 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.

(i) For electricity generating units and non-electricity generating units, the CPPTE can be no greater than the number to be determined by the following:

CPPTE ≤ [(5/12ths ABUhr × BUER) + (3,672 - 5/12ths ABUhr) × PER)] × MRHHI when PER and BUER are in lb/mmBtu; or,

CPPTE ≤ [(5/12ths ABUhr × BUER) + (3,672 - 5/12ths ABUhr) × PER)] × 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.

(ii) For Portland cement kiln units, the CPPTE can be no greater than the number to be determined by the following:

CPPTE ≤ 3,672 × ER

where:

"ER" is the lowest applicable emission rate (in lb/hr) allowed under the unit's permit

(38) 'Electric generating unit.' Any stationary, fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the startup of the unit's combustion chamber, a generator with a nameplate capacity of equal to or greater than 15 MWe producing electricity for sale.

(39) 'Emissions.' Air pollutants exhausted from a unit or source into the atmosphere, as measured, recorded, and reported to the Administrator by the CAIR designated representative and as determined by the Administrator in accordance with Subpart 245-8.

(40) 'Energy efficiency and renewable energy technology account'. A general account that may be opened by the New York State Energy Research and Development Authority (NYSERDA) from which allowances will be sold or distributed in order to provide funds to be used to support programs that encourage and foster energy efficiency measures and renewable energy technologies and cover the reasonable costs associated with the administration and evaluation of these programs by NYSERDA.

(41) 'Excess emissions.' Any ton of nitrogen oxides emitted by the CAIR NOx Ozone Season units at a CAIR NOx Ozone Season source during a control period that exceeds the CAIR NOx Ozone Season emissions limitation for the source.

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

(43) 'Fossil fuel-fired.'

(i) With regard to a unit, except a unit subject to this Part pursuant to section 243-1.4(a)(1)(iii) or section 243-1.4(a)(3), combusting any amount of fossil fuel in any calendar year.

(ii) With regard to a unit subject to this Part pursuant to section 243-1.4(a)(1)(iii), combusting 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.

(44) 'General account.' A CAIR NOx Ozone Season Allowance Tracking System account, established under Subpart 243-6, that is not a compliance account.

(45) 'Generator.' A device that produces electricity.

(46) 'Heat input.' With regard to a specific period of time, the product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1,000,000 Btu/mmBtu and multiplied by the fuel feed rate into a combustion device (in lb of fuel/time), as measured, recorded, and reported to the Administrator by the CAIR designated representative and determined by the Administrator in accordance with Subpart 243-8, and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

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

(48) '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 generated by 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 no less 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.

(49) 'Maximum design heat input.' The maximum amount of fuel per hour (in Btu/hr) that a unit is capable of combusting on a steady state basis as of the initial installation of the unit as specified by the manufacturer of the unit.

(50) 'Maximum rated hourly heat input. A unit-specific maximum hourly heat input (in mmBtu) which is the higher of the manufacturer's maximum rated hourly heat input or the highest observed hourly heat input.

(51) 'Monitoring system.' Any monitoring system that meets the requirements of Subpart 243-8, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under 40 CFR Part 75.

(52) 'Most stringent State or Federal NOx emissions limitation.' With regard to a unit, the lowest NOx emissions limitation (in terms of lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.

(53) 'Nameplate capacity.' Starting from the initial installation of a generator, the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings) as of such installation as specified by the manufacturer of the generator or, starting from the completion of any subsequent physical change in the generator resulting in an increase in the maximum electrical generating output (in MWe) that the generator is capable of producing on a steady state basis and during continuous operation (when not restricted by seasonal or other deratings), such increased maximum amount as of such completion as specified by the person conducting the physical change.

(54) 'Non-electric generating unit.' A unit that is a fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system that is not a Portland cement kiln or electric generating unit.

(55) 'Operator.' Any person who operates, controls, or supervises a CAIR NOx Ozone Season unit or a CAIR NOx Ozone Season source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.

(56) 'Owner.' Any of the following persons:

(i) with regard to a CAIR NOx Ozone Season source or a CAIR NOx Ozone Season unit at a source, respectively:

(a) any holder of any portion of the legal or equitable title in a CAIR NOx Ozone Season unit at the source or the CAIR NOx Ozone Season unit;

(b) any holder of a leasehold interest in a CAIR NOx Ozone Season unit at the source or the CAIR NOx Ozone Season unit; or

(c) any purchaser of power from a CAIR NOx Ozone Season unit at the source or the CAIR NOx Ozone Season unit under a life-of-the-unit, firm power contractual arrangement; provided that, 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) on the revenues or income from such CAIR NOx Ozone Season unit; or

(ii) with regard to any general account, any person who has an ownership interest with respect to the CAIR NOx Ozone Season allowances held in the general account and who is subject to the binding agreement for the CAIR authorized account representative to represent the person's ownership interest with respect to CAIR NOx Ozone Season allowances.

(57) 'Permitting Authority.' The department or, for other states, the State air pollution control agency, local agency, other State agency, or other agency authorized by the Administrator to issue or revise permits to meet the requirements of the CAIR NOx Ozone Season Trading Program as implemented in other States or, if no such agency has been so authorized, the Administrator.

(58) 'Portland cement kiln.' A system, including any solid, gaseous or liquid fuel combustion equipment, used to calcine and fuse raw materials, including limestone and clay, to produce portland cement clinker.

(59) 'Potential electrical output capacity.' 33 percent of a unit's maximum design heat input, divided by 3,413 Btu/kWh, divided by 1,000 kWh/MWh, and multiplied by 8,760 hr/yr.

(60) 'Receive or receipt of.' When referring to the department or the Administrator, to come into possession of a document, information, or correspondence (whether sent in hard copy or by authorized electronic transmission), as indicated in an official log, or by a notation made on the document, information, or correspondence, by the department or the Administrator in the regular course of business.

(61) 'Recordation, record, or recorded.' With regard to CAIR NOx Ozone Season allowances, the movement of CAIR NOx Ozone Season allowances by the Administrator into or between CAIR NOx Ozone Season Allowance Tracking System accounts, for purposes of allocation, transfer, or deduction.

(62) 'Reference method.' Any direct test method of sampling and analyzing for an air pollutant as specified in 40 CFR 75.22.

(63) 'Replacement, replace, or replaced.' With regard to a unit, the demolishing of a unit, or the permanent shutdown and permanent disabling of a unit, and the construction of another unit (the replacement unit) to be used instead of the demolished or shutdown unit (the replaced unit).

(64) 'Repowered.' With regard to a unit, replacement of a coal-fired boiler with one of the following coal-fired technologies at the same source as the coal-fired boiler:

(i) atmospheric or pressurized fluidized bed combustion;

(ii) integrated gasification combined cycle;

(iii) magnetohydrodynamics;

(iv) direct and indirect coal-fired turbines;

(v) integrated gasification fuel cells; or

(vi) as determined by the Administrator in consultation with the Secretary of Energy, a derivative of one or more of the technologies under subparagraphs (i) though (v) of this paragraph and any other coal-fired technology capable of controlling multiple combustion emissions simultaneously with improved boiler or generation efficiency and with significantly greater waste reduction relative to the performance of technology in widespread commercial use as of January 1, 2005.

(65) 'Sequential use of energy':

(i) For a topping-cycle cogeneration unit, the use of reject heat from electricity production in a useful thermal energy application or process.

(ii) For a bottoming-cycle cogeneration unit, the use of reject heat from useful thermal energy application or process in electricity production.

(66) 'Serial number.' For a CAIR NOx Ozone Season allowance, the unique identification number assigned to each CAIR NOx Ozone Season allowance by the Administrator.

(67) 'Solid waste incineration unit.' A stationary, fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine that is a "solid waste incineration unit" as defined in section 129(g)(1) of the Act.

(68) 'Source.' All buildings, structures, or installations located in one or more contiguous or adjacent properties under common control of the same person or persons. For purposes of section 502(c) of the Act, a "source," including a "source" with multiple units, shall be considered a single "facility".

(69) 'State.' One of the States or the District of Columbia that adopts the CAIR NOx Ozone Season Trading Program pursuant to 40 CFR 51.123(aa)(1) or (2), (bb), or (dd).

(70) '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" or "service" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.

(71) 'Ton.' 2,000 pounds. For the purpose of determining compliance with the CAIR NOx Ozone Season emissions limitation, total tons of nitrogen oxides emissions for a control period shall be calculated as the sum of all recorded hourly emissions (or the mass equivalent of the recorded hourly emission rates) in accordance with Subpart 243-8, but with any remaining fraction of a ton equal to or greater than 0.50 tons deemed to equal one ton and any remaining fraction of a ton less than 0.50 tons deemed to equal zero tons.

(72) 'Topping-cycle cogeneration unit.' A cogeneration unit in which the energy input to the unit is first used to produce useful power, including electricity, and at least some of the reject heat from the electricity production is then used to provide useful thermal energy.

(73) 'Total energy input.' With regard to a cogeneration unit, total energy of all forms supplied to the cogeneration unit, excluding energy produced by the cogeneration unit itself.

(74) 'Total energy output.' With regard to a cogeneration unit, the sum of useful power and useful thermal energy produced by the cogeneration unit.

(75) 'Unit.' A stationary, fossil fuel-fired boiler or combustion turbine, other stationary, fossil-fuel-fired combustion device, or portland cement kiln.

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

(77) 'Unit operating hour or hour of unit operation.' An hour in which a unit combusts any fuel.

(78) 'Useful power.' With regard to a cogeneration unit, electricity or mechanical energy made available for use, excluding any such energy used in the power production process (which process includes, but is not limited to, any on-site processing or treatment of fuel combusted at the unit and any on-site emission controls).

(79) 'Useful thermal energy.' With regard to a cogeneration unit, thermal energy that is:

(i) made available to an industrial or commercial process (not a power production process), excluding any heat contained in condensate return or makeup water;

(ii) used in a heating application (e.g., space heating or domestic hot water heating); or

(iii) used in a space cooling application (i.e., thermal energy used by an absorption chiller).

(80) 'Utility power distribution system.' The portion of an electricity grid owned or operated by a utility and dedicated to delivering electricity to customers.

243-1.3 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.

(d) 'hr'-hour or hours.

(e) 'kW'-kilowatt electrical.

(f) 'kWh'-kilowatt hour.

(g) 'lb'-pound or pounds.

(h) 'mmBtu'-million Btu.

(i) 'MWe'-megawatt electrical.

(j) 'MWh'-megawatt hour.

(k) 'NOx -nitrogen oxides.

(l) 'O2'-oxygen.

(m) 'ppm'-parts per million.

(n) 'scfh'-standard cubic feet per hour.

(o) 'SO2'-sulfur dioxide.

(p) 'yr'-year or years.

243-1.4 Applicability.

(a) Except as provided in subdivision (b) of this section, the following units shall be CAIR NOx Ozone Season units, and any source that includes one or more such units shall be a CAIR NOx Ozone Season source, subject to the requirements of this Part:

(1) 'Electric generating units.'

(i) Any stationary, fossil fuel-fired boiler or stationary, fossil fuel-fired combustion turbine serving at any time, since the later of November 15, 1990 or the startup of the unit's combustion chamber, a generator with a nameplate capacity of equal to or greater than 25 MWe producing electricity for sale.

(ii) If a stationary boiler or stationary combustion turbine that is not a CAIR NOx Ozone Season unit under subparagraph (i) of this paragraph begins to combust fossil fuel or to serve a generator with nameplate capacity of more than 25 MWe producing electricity for sale, the unit shall become a CAIR NOx Ozone Season unit as provided in subparagraph (i) of this paragraph on the first date on which it both combusts fossil fuel and serves such generator.

(iii) Any unit that is not a CAIR NOx Ozone Season unit under subparagraphs (i) or (ii) of this paragraph and that, any time on or after January 1, 1995, serves a generator with a nameplate capacity equal to or greater than 15 MWe and sells any amount of electricity.

(2) 'Portland cement kiln units.' Any unit that is a Portland cement kiln having a maximum design heat input equal to or greater than 250 mmBtu/hr.

(3) 'Non-electricity generating units.' Any unit other than an electricity generating unit or a portland cement kiln unit under paragraph (1) or (2) of this subdivision, respectively, which has a maximum design heat input equal to or greater than 250 mmBtu/hr. In addition, the unit identified by ORIS Code 0540880NO1PB is deemed to be a non-electricity generating unit.

(b) Units that meet the requirements set forth in subparagraph (1)(i), (2)(i), or (2)(ii) of this subdivision shall not be CAIR NOx Ozone Season units:

(1) (i) Any unit that is a CAIR NOx Ozone Season unit under subparagraphs (a)(1)(i) and (a)(1)(ii) of this section:

('a') qualifying as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and continuing to qualify as a cogeneration unit; and

('b') not serving at any time, since the later of November 15, 1990 or the startup of the unit's combustion chamber, a generator with nameplate capacity of more than 25 MWe supplying in any calendar year more than one-third of the unit's potential electric output capacity or 219,000 MWh, whichever is greater, to any utility power distribution system for sale.

(ii) If a unit qualifies as a cogeneration unit during the 12-month period starting on the date the unit first produces electricity and meets the requirements of subparagraph (1)(i) of this subdivision for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOx Ozone Season unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a cogeneration unit or January 1 after the first calendar year during which the unit no longer meets the requirements of clause (1)(i)('b') of this subdivision.

(2) (i) Any unit that is a CAIR NOx Ozone Season unit under subparagraphs (a)(1)(i) and (a)(1)(ii) of this section commencing operation before January 1, 1985:

('a') qualifying as a solid waste incineration unit; and

('b') with an average annual fuel consumption of non-fossil fuel for 1985-1987 exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any three consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(ii) Any unit that is a CAIR NOx Ozone Season unit under paragraph (a)(1) of this section commencing operation on or after January 1, 1985:

('a') qualifying as a solid waste incineration unit; and

('b') with an average annual fuel consumption of non-fossil fuel for the first three calendar years of operation exceeding 80 percent (on a Btu basis) and an average annual fuel consumption of non-fossil fuel for any three consecutive calendar years after 1990 exceeding 80 percent (on a Btu basis).

(iii) If a unit qualifies as a solid waste incineration unit and meets the requirements of subparagraph (2)(i) or (ii) of this subdivision for at least three consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOx Ozone Season unit starting on the earlier of January 1 after the first calendar year during which the unit first no longer qualifies as a solid waste incineration unit or January 1 after the first three consecutive calendar years after 1990 for which the unit has an average annual fuel consumption of fossil fuel of 20 percent or more.

(c) 'Limited exemption for certain CAIR NOx Ozone Season units'. Notwithstanding subdivision (a) of this section, a CAIR NOx Ozone Season unit under subparagraph (a)(1)(iii) or paragraph (a)(3) of this section shall be subject only to the requirements of this subdivision if the unit has a permit that meets the requirements of paragraph (1) of this subdivision and restricts the unit to burning only natural gas or fuel oil during a control period in 2003 or later and each control period thereafter and restricts the unit's operating hours during each such control period to the number of hours (determined in accordance with subparagraphs (1)(ii) and (iii) of this subdivision that limits the unit's potential NOx mass emissions for the control period to 25 tons or less.

(1) For each control period under this subdivision, the permit must:

(i) restrict the unit to burning only natural gas or fuel oil;

(ii) restrict the unit's operating hours to the number calculated by dividing 25 tons of potential NOx mass emissions by the unit's maximum potential hourly NOx mass emissions;

(iii) require that the unit's potential NOx mass emissions shall be calculated as follows:

('a') select the default NOx emission rate in table LM-2 of 40 CFR 75.19(c)(1)(ii) that would otherwise be applicable assuming that the unit burns only the type of fuel ('i.e.', only natural gas or only fuel oil) that has the highest default NOx emission factor of any type of fuel that the unit is allowed to burn under the fuel use restriction in subparagraph (i) of this paragraph; and

('b') multiply the default NOx emission rate under clause ('a') of this subparagraph by the unit's maximum rated hourly heat input. The owner or operator of the unit may petition the department to use a lower value for the unit's maximum rated hourly heat input than the value as defined under section 243-1.2 of this Subpart. The department may approve such lower value if the owner or operator demonstrates that the maximum hourly heat input specified by the manufacturer or the highest observed hourly heat input, or both, are not representative, and that such lower value is representative, of the unit's current capabilities because modifications have been made to the unit, limiting its capacity permanently;

(iv) require that the owner or operator of the unit shall retain at the source that includes the unit, for five years, records demonstrating that the operating hours restriction, the fuel use restriction, and the other requirements of the permit related to these restrictions were met; and

(v) require that the owner or operator of the unit shall report the unit's hours of operation (treating any partial hour of operation as a whole hour of operation) during each control period to the department by November 1st of each year.

(2) The department will notify the Administrator in writing of each unit under subdivision (a) of this section whose permit contains the fuel use restriction under subparagraph (1)(i) of this subdivision and the operating hours restriction under subparagraphs (1)(ii) and (iii) of this subdivision. The department will also notify the administrator in writing of each unit under subdivision (a) of this section whose permit is revised to remove any such restriction, whose permit includes any such restriction that is no longer applicable, or which does not comply with any such restriction.

(3) If, for any control period under subdivision, the fuel use restriction under subparagraph (1)(i) of this subdivision or the operating hours restriction under subparagraphs (1)(ii) and (iii) of this subdivision is removed from the unit's permit or otherwise becomes no longer applicable or if, for any such control period, the unit does not comply with the fuel use restriction under subparagraph (1)(i) of this subdivision or the operating hours restriction under subparagraphs (1)(ii) and (iii) of this subdivision, the unit shall be subject to all applicable requirements of this Part.

243-1.5 Retired unit exemption.

(a) (1) Any CAIR NOx Ozone Season unit that is permanently retired and is not a CAIR NOx Ozone Season opt-in unit under Subpart 243-9 shall be exempt from the CAIR NOx Ozone Season Trading Program, except for the provisions of this section, 243-1.1 through 243-1.4, 243-1.6(c)(4) through (7), 243-1.7, and Subparts 243-2 and 243-5 through 243-7.

(2) The exemption under paragraph (a)(1) of this section shall become effective the day on which the CAIR NOx Ozone Season unit is permanently retired. Within 30 days of the unit's permanent retirement, the CAIR designated representative shall submit a statement to the department and shall submit a copy of the statement to the Administrator. The statement shall state, in a format prescribed by the department, that the unit was permanently retired on a specific date and will comply with the requirements of subdivision (b) of this section.

(3) After receipt of the statement under paragraph (a)(2) of this section, the department will amend any permit under Subpart 243-3 covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraph (a)(1) and subdivision (b) of this section.

(b) 'Special provisions.'

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

(2) The department will not allocate CAIR NOx Ozone Season allowances under Subpart 243-5 to a unit exempt under subdivision (a) of this section.

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

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

(5) A unit exempt under subdivision (a) of this section and located at a source that is required, or but for this exemption would be required, to have a title V operating permit shall not resume operation unless the CAIR designated representative of the source submits a complete CAIR permit application under section 243-3.3 for the unit not less than 12 months before the later of January 1, 2009 or the date on which the unit resumes operation.

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

(i) The date on which the CAIR designated representative submits a CAIR permit application for the unit under paragraph (b)(5) of this section;

(ii) The date on which the CAIR designated representative is required under paragraph (b)(5) of this section to submit a CAIR permit application for the unit; or

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

(7) For the purpose of applying monitoring, reporting, and recordkeeping requirements under Subpart 243-8, a unit that loses its exemption under subdivision (a) of this section shall be treated as a unit that commences commercial operation on the first date on which the unit resumes operation.

243-1.6 Standard requirements.

(a) 'Permit requirements.'

(1) The CAIR designated representative of each CAIR NOx Ozone Season source shall:

(i) submit to the department a complete CAIR permit application under section 243-3.3 in accordance with the deadlines specified in section 243-3.2; and

(ii) submit in a timely manner any supplemental information that the department determines is necessary in order to review a CAIR permit application and issue or deny a CAIR permit.

(2) The owners and operators of each CAIR NOx Ozone Season source shall have a CAIR permit issued by the department under Subpart 243-3 for the source and operate the source and the unit in compliance with such CAIR permit.

(b) 'Monitoring requirements.'

(1) The owners and operators, and the CAIR designated representative, of each CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit at the source shall comply with the requirements of Subpart 243-8.

(2) The emissions measurements recorded and reported in accordance with Subpart 243-8 shall be used to determine compliance by each CAIR NOx Ozone Season source with the CAIR NOx Ozone Season emissions limitation under subdivision (c) of this section.

(1) As of the allowance transfer deadline for a control period, the owners and operators of each CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit at the source shall hold, in the source's compliance account, CAIR NOx Ozone Season allowances available for compliance deductions for the control period under section 243-6.5(a) in an amount not less than the tons of total nitrogen oxides emissions for the control period from all CAIR NOx Ozone Season units at the source, as determined in accordance with Subpart 243-8.

(2) A CAIR NOx Ozone Season unit shall be subject to the requirements under paragraph (c)(1) of this section for the control period starting on the later of May 1, 2009 or the deadline for meeting the unit's monitor certification requirements under sections 243-8.1(b)(1), (2), (3), or (7) and for each control period thereafter.

(3) A CAIR NOx Ozone Season allowance shall not be deducted, for compliance with the requirements under paragraph (c)(1) of this section, for a control period in a calendar year before the year for which the CAIR NOx Ozone Season allowance was allocated.

(4) CAIR NOx Ozone Season allowances shall be held in, deducted from, or transferred into or among CAIR NOx Ozone Season Allowance Tracking System accounts in accordance with Subparts 243-6, 243-7, and 243-9.

(5) A CAIR NOx Ozone Season allowance is a limited authorization to emit one ton of nitrogen oxides in accordance with the CAIR NOx Ozone Season Trading Program. No provision of the CAIR NOx Ozone Season Trading Program, the CAIR permit application, the CAIR permit, or an exemption under section 243-1.5 and no provision of law shall be construed to limit the authority of the State or the United States to terminate or limit such authorization.

(6) A CAIR NOx Ozone Season allowance does not constitute a property right.

(7) Upon recordation by the Administrator under Subpart 243-6, 243-7, or 243-9, every allocation, transfer, or deduction of a CAIR NOx Ozone Season allowance to or from a CAIR NOx Ozone Season source's compliance account is incorporated automatically in any CAIR permit of the source.

(d) 'Excess emissions requirements'. If a CAIR NOx Ozone Season source emits nitrogen oxides during any control period in excess of the CAIR NOx Ozone Season emissions limitation, then:

(1) the owners and operators of the source and each CAIR NOx Ozone Season unit at the source shall surrender the CAIR NOx Ozone Season allowances required for deduction under section 243-6.5(d)(1) and pay any fine, penalty, or assessment or comply with any other remedy imposed, for the same violations, under the Act or applicable State law; and

(2) each ton of such excess emissions and each day of such control period shall constitute a separate violation of this Subpart, the Act, and applicable State law.

(e) 'Recordkeeping and reporting requirements.'

(1) Unless otherwise provided, the owners and operators of the CAIR NOx Ozone Season source and each CAIR NOx Ozone Season 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 before the end of five years, in writing by the department or the Administrator.

(i) The certificate of representation under section 243-2.4 for the CAIR designated representative for the source and each CAIR NOx Ozone Season unit at the source and all documents that demonstrate the truth of the statements in the certificate of representation; 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 certificate of representation under section 243-2.4 changing the CAIR designated representative.

(ii) All emissions monitoring information, in accordance with Subpart 243-8, provided that to the extent that Subpart 243-8 provides for a three-year period for recordkeeping, the three-year period shall apply.

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

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

(2) The CAIR designated representative of a CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit at the source shall submit the reports required under the CAIR NOx Ozone Season Trading Program, including those under Subpart 243-8.

(f) 'Liability.'

(1) Each CAIR NOx Ozone Season source and each CAIR NOx Ozone Season unit shall meet the requirements of the CAIR NOx Ozone Season Trading Program.

(2) Any provision of the CAIR NOx Ozone Season Trading Program that applies to a CAIR NOx Ozone Season source or the CAIR designated representative of a CAIR NOx Ozone Season source shall also apply to the owners and operators of such source and of the CAIR NOx Ozone Season units at the source.

(3) Any provision of the CAIR NOx Ozone Season Trading Program that applies to a CAIR NOx Ozone Season unit or the CAIR designated representative of a CAIR NOx Ozone Season unit shall also apply to the owners and operators of such unit.

(g) 'Effect on other authorities.' No provision of the CAIR NOx Ozone Season Trading Program, a CAIR permit application, a CAIR permit, or an exemption under section 243-1.5 shall be construed as exempting or excluding the owners and operators, and the CAIR designated representative, of a CAIR NOx Ozone Season source or CAIR NOx Ozone Season unit from compliance with any other provision of applicable State or federal laws and regulations, or a federally enforceable permit.

243-1.7 Computation of time.

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

243-1.8 Appeal procedures.

The appeal procedures for decisions of the Administrator under the CAIR NOx Ozone Season Trading Program are set forth in 40 CFR Part 78.

Subpart 243-2 CAIR designated representative for CAIR NOx Ozone Season sources

243-2.1 Authorization and responsibilities of CAIR designated representative.

(a) Except as provided under section 243-2.2, each CAIR NOx Ozone Season source, including all CAIR NOx Ozone Season units at the source, shall have one and only one CAIR designated representative, with regard to all matters under the CAIR NOx Ozone Season Trading Program concerning the source or any CAIR NOx Ozone Season unit at the source.

(b) The CAIR designated representative of the CAIR NOx Ozone Season source shall be selected by an agreement binding on the owners and operators of the source and all CAIR NOx Ozone Season units at the source and shall act in accordance with the certification statement in section 243-2.4(a)(4)(iv).

(c) Upon receipt by the Administrator of a complete certificate of representation under section 243-2.4, the CAIR designated representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CAIR NOx Ozone Season source represented and each CAIR NOx Ozone Season unit at the source in all matters pertaining to the CAIR NOx Ozone Season Trading Program, notwithstanding any agreement between the CAIR designated representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CAIR designated representative by the department, the Administrator, or a court regarding the source or unit.

(d) No CAIR permit will be issued, no emissions data reports will be accepted, and no CAIR NOx Ozone Season Allowance Tracking System account will be established for a CAIR NOx Ozone Season unit at a source, until the Administrator has received a complete certificate of representation under section 243-2.4 for a CAIR designated representative of the source and the CAIR NOx Ozone Season units at the source.

(e) (1) Each submission under the CAIR NOx Ozone Season Trading Program shall be submitted, signed, and certified by the CAIR designated representative for each CAIR NOx Ozone Season source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CAIR designated representative: "I am authorized to make this submission on behalf of the owners and operators of the source or 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."

(2) The department and the Administrator will accept or act on a submission made on behalf of the owners or operators of a CAIR NOx Ozone Season source or a CAIR NOx Ozone Season unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.

243-2.2 Alternate CAIR designated representative.

(a) A certificate of representation under section 243-2.4 may designate one and only one alternate CAIR designated representative, who may act on behalf of the CAIR designated representative. The agreement by which the alternate CAIR designated representative is selected shall include a procedure for authorizing the alternate CAIR designated representative to act in lieu of the CAIR designated representative.

(b) Upon receipt by the Administrator of a complete certificate of representation under section 243-2.4, any representation, action, inaction, or submission by the alternate CAIR designated representative shall be deemed to be a representation, action, inaction, or submission by the CAIR designated representative.

(c) Except in this section and sections 243-1.2, 243-2.1(a) and (d), 243-2.3, 243-2.4, 243-2.6, 243-6.2, and 243-9.3 whenever the term "CAIR designated representative" is used in Subparts 243-1 through 243-9, the term shall be construed to include the CAIR designated representative or any alternate CAIR designated representative.

243-2.3 Changing CAIR designated representative and alternate CAIR designated representative; changes in owners and operators.

(a) 'Changing CAIR designated representative'. The CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under section 243-2.4. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new CAIR designated representative and the owners and operators of the CAIR NOx Ozone Season source and the CAIR NOx Ozone Season units at the source.

(b) 'Changing alternate CAIR designated representative.' The alternate CAIR designated representative may be changed at any time upon receipt by the Administrator of a superseding complete certificate of representation under section 243-2.4. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR designated representative before the time and date when the Administrator receives the superseding certificate of representation shall be binding on the new alternate CAIR designated representative and the owners and operators of the CAIR NOx Ozone Season source and the CAIR NOx Ozone Season units at the source.

(1) In the event an owner or operator of a CAIR NOx Ozone Season source or a CAIR NOx Ozone Season unit is not included in the list of owners and operators in the certificate of representation under section 243-2.4, such owner or operator shall be deemed to be subject to and bound by the certificate of representation, the representations, actions, inactions, and submissions of the CAIR designated representative and any alternate CAIR designated representative of the source or unit, and the decisions and orders of the department, the Administrator, or a court, as if the owner or operator were included in such list.

(2) Within 30 days following any change in the owners and operators of a CAIR NOx Ozone Season source or a CAIR NOx Ozone Season unit, including the addition of a new owner or operator, the CAIR designated representative or any alternate CAIR designated representative shall submit a revision to the certificate of representation under section 243-2.4 amending the list of owners and operators to include the change.

243-2.4 Certificate of representation.

(a) A complete certificate of representation for a CAIR designated representative or an alternate CAIR designated representative shall include the following elements in a format prescribed by the Administrator:

(1) Identification of the CAIR NOx Ozone Season source, and each CAIR NOx Ozone Season unit at the source, for which the certificate of representation is submitted, including identification and nameplate capacity of each generator served by each such unit.

(2) The name, address, e-mail address, telephone number, and facsimile transmission number (if any) of the CAIR designated representative and any alternate CAIR designated representative.

(3) A list of the owners and operators of the CAIR NOx Ozone Season source and of each CAIR NOx Ozone Season unit at the source.

(4) The following certification statements by the CAIR designated representative and any alternate CAIR designated representative:

(i) "I certify that I was selected as the CAIR designated representative or alternate CAIR designated representative, as applicable, by an agreement binding on the owners and operators of the source and each CAIR NOx Ozone Season unit at the source."

(ii) "I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR NOx Ozone Season Trading Program on behalf of the owners and operators of the source and of each CAIR NOx Ozone Season unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions."

(iii) "I certify that the owners and operators of the source and of each CAIR NOx Ozone Season unit at the source shall be bound by any order issued to me by the Administrator, the department, or a court regarding the source or unit."

(iv) "Where there are multiple holders of a legal or equitable title to, or a leasehold interest in, a CAIR NOx Ozone Season unit, or where a utility or industrial customer purchases power from a CAIR NOx Ozone Season unit under a life-of-the-unit, firm power contractual arrangement, I certify that: I have given a written notice of my selection as the 'CAIR designated representative' or 'alternate CAIR designated representative', as applicable, and of the agreement by which I was selected to each owner and operator of the source and of each CAIR NOx Ozone Season unit at the source; and CAIR NOx Ozone Season allowances and proceeds of transactions involving CAIR NOx Ozone Season allowances will be deemed to be held or distributed in proportion to each holder's legal, equitable, leasehold, or contractual reservation or entitlement, except that, if such multiple holders have expressly provided for a different distribution of CAIR NOx Ozone Season allowances by contract, CAIR NOx Ozone Season allowances and proceeds of transactions involving CAIR NOx Ozone Season allowances will be deemed to be held or distributed in accordance with the contract."

(5) The signature of the CAIR designated representative and any alternate CAIR designated representative and the dates signed.

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

243-2.5 Objections concerning CAIR designated representative.

(a) Once a complete certificate of representation under section 243-2.4 has been submitted and received, the department and the Administrator will rely on the certificate of representation unless and until a superseding complete certificate of representation under section 243-2.4 is received by the Administrator.

(b) Except as provided in section 243-2.3(a) or (b), no objection or other communication submitted to the department or the Administrator concerning the authorization, or any representation, action, inaction, or submission, of the CAIR designated representative shall affect any representation, action, inaction, or submission of the CAIR designated representative or the finality of any decision or order by the department or the Administrator under the CAIR NOx Ozone Season Trading Program.

(c) Neither the department nor the Administrator will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CAIR designated representative, including private legal disputes concerning the proceeds of CAIR NOx Ozone Season allowance transfers.

243-2.6 Delegation by CAIR designated representative and alternate CAIR designated representative.

(a) A CAIR designated representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under this part.

(b) An alternate CAIR designated representative may delegate, to one or more natural persons, his or her
authority to make an electronic submission to the Administrator provided for or required under this part.

(c) In order to delegate authority to make an electronic submission to the Administrator in accordance with subdivision (a) or (b) of this section, the CAIR designated representative or alternate CAIR designated representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

(1) the name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR designated representative or alternate CAIR designated representative;

(2) the name, address, e-mail address, telephone number, and facsimile transmission number (if any) of each such natural person (referred to as an "agent");

(3) for each such natural person, a list of the type or types 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 CAIR designated representative or alternate CAIR designated representative:

(i) "I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR designated representative or alternate CAIR designated representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 6 NYCRR section 243-2.6(d) shall be deemed to be an electronic submission by me."

(ii) "Until this notice of delegation is superseded by another notice of delegation under 6 NYCRR section 243-2.6(d), I agree to maintain an e-mail account and to notify the Administrator immediately of any change in my e-mail address unless all delegation of authority by me under 6 NYCRR section 243-2.6 is terminated."

(d) A notice of delegation submitted under subdivision (c) of this section shall be effective, with regard to the CAIR designated representative or alternate CAIR designated representative identified in such notice, upon receipt of such notice by the Administrator and until receipt by the Administrator of a superseding notice of delegation submitted by such CAIR designated representative or alternate CAIR designated representative, as appropriate. The superseding notice of delegation may replace any previously identified agent, add a new 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 CAIR designated representative or alternate CAIR designated representative submitting such notice of delegation.

Subpart 243-3 Permits

243-3.1 General CAIR NOx Ozone Season Trading Program permit requirements.

(a) Each CAIR NOx Ozone Season source must have a permit issued by the department pursuant to Parts 201 and 621 of this Title.

(b) Each CAIR permit must contain, with regard to the CAIR NOx Ozone Season source and the CAIR NOx Ozone Season units at the source covered by the CAIR permit, all applicable requirements for the CAIR NOx Ozone Season Trading Program, the CAIR NOx Annual Trading Program, and the CAIR SO2 Trading Program and shall be a complete and separable portion of the permit under subdivision (a) of this section.

243-3.2 Submission of CAIR permit applications.

The CAIR designated representative of any CAIR NOx Ozone Season source must submit to the department a complete CAIR permit application under section 243-3.3 for the source covering each CAIR NOx Ozone Season unit at the source by the later of January 1, 2008 or the date on which the CAIR NOx Ozone Season unit commences commercial operation, except as provided in section 245-9.4.

243-3.3 Information requirements for CAIR permit applications.

A complete CAIR permit application must include the following elements concerning the CAIR NOx Ozone Season source for which the application is submitted, in a format prescribed by the department:

(a) identification of the CAIR NOx Ozone Season source;

(b) identification of each CAIR NOx Ozone Season unit at the CAIR NOx source; and

243-3.4 CAIR permit contents.

Each CAIR permit will contain, in a format prescribed by the department, all elements required for a complete CAIR permit application under section 243-3.3 and all applicable requirements of this Subpart.

243-3.5 CAIR permit revisions.

Revisions to a CAIR permit shall be done in accordance with Parts 201 and 621 of this Title.

Subpart 243-4 Reserved

Subpart 243-5 CAIR NOx Ozone Season Allowance Allocations

243-5.1 CAIR NOx Ozone Season Trading Program Budgets.

(a) The Phase 1 CAIR NOx Ozone Season Trading Program Budget for the 2009 through 2014 control periods is 31,091 tons for each control period.

(b) The Phase 2 CAIR NOx Ozone Season Trading Program Budget for the control period of 2015 and beyond is 27,652 tons for each control period.

243-5.2 Timing requirements for CAIR NOx Ozone Season allowance allocations.

(a) By September 30, 2007, the department will submit to the Administrator, in a format prescribed by the Administrator the CAIR NOx Ozone Season allowance allocations, in accordance with section 243-5.3, for the 2009, 2010 and 2011 control periods.

(b) By October 31, 2008 and October 31st of each year thereafter, the department will submit to the Administrator, in a format prescribed by the Administrator the CAIR NOx Ozone Season allowance allocations, in accordance with section 243-5.3, for the control period in the year that is four years after the year of the applicable deadline for submission under this subdivision. If the department fails to submit CAIR NOx Ozone Season allowance allocations in accordance with the preceding sentence, the Administrator will, for the applicable control period, repeat the NOx allowance allocations that were performed for the previous contol period. Should the department fail to submit to the Administrator CAIR NOx Ozone Season allowance allocations for the 2015 control period, the Administrator will allocate to each CAIR NOx Ozone Season unit CAIR NOx Ozone Season allowances from the Phase 2 CAIR NOx Ozone Season Trading Program Budget based on the unit's proportional share of its previous allocation.

243-5.3 CAIR NOx Ozone Season allowance allocations.

(a) For purposes of allocating CAIR NOx Ozone Season allowances to CAIR NOx Ozone Season units in the four sectors of the CAIR NOx Ozone Season units delineated under subdivision 243-1.4(a), the CAIR NOx Ozone Season Trading Program Budget for each year set forth in section 243-5.1 is divided into four sector budgets as follows:

(1) The total number of CAIR NOx Ozone Season allowances that may be allocated to units subject to the provisions of this Part pursuant to sections 243-1.4(a)(1)(i) and (ii) are:

(i) 20,632 for 2009 through 2014; and

(ii) 17,193 for 2015 and thereafter.

These figures represent the sector budget for electricity generating units having a nameplate capacity greater than 25 MWe.

(2) The total number of CAIR NOx Ozone Season allowances that may be allocated to units subject to the provisions of this Part pursuant to section 243-1.4(a)(1)(iii) is 1,328. This figure represents the sector budget for additional electricity generating units subject to the NOx SIP Call.

(3) The total number of CAIR NOx Ozone Season allowances that may be allocated to units subject to the provisions of this Part pursuant to section 243-1.4(a)(2) is 6,271. This figure represents the sector budget for Portland cement kiln units.

(4) The total number of CAIR NOx Ozone Season allowances that may be allocated to units subject to the provisions of this Part pursuant to section 243-1.4(a)(3) is 2,860. This figure represents the sector budget for non-electricity generating units.

(b) 'Electricity generating units having a nameplate capacity greater than 25 MWe.' For each instance that the department allocates CAIR NOx Ozone Season allowances under this subdivision, the department will determine the number of CAIR NOx Ozone Season allowances to be allocated to each CAIR NOx Ozone Season unit that is not eligible to receive CAIR NOx Ozone Season allowances under subdivision (f) of this section, in accordance with the following procedures:

(1) First round calculation. Multiply the greatest heat input experienced by the unit for any single control period among the three most recent control periods, for which data are available, that precede the date by which the department must make the CAIR NOx Ozone Season allowance allocations pursuant to section 243-5.2 by the lesser of:

(i) ('a') for the 2009 through 2014 control periods, 0.15 lb/mmBtu;

('b') for the 2015 control period and thereafter, 0.125 lb/mmBtu; or

(ii) the lowest applicable emission rate.

(2) Second round calculation. Determine the allocation factor by dividing the number representing 85 percent of the sector budget by the sum of the first round calculation results for all the units.

(3) Third round calculation. Multiply the allocation factor by each unit's first round calculation result.

(4) Fourth round calculation. The number of CAIR NOx Ozone Season allowances to be allocated to each unit will be the lesser of:

(i) the number representing the unit's CPPTE; or

(ii) the third round calculation result for the unit plus the number representing the unit's proportional share of any unassigned CAIR NOx Ozone Season allowances remaining in the 85 percent portion of the sector budget as determined by dividing the unit's first round calculation result by the sum of the first round calculation results for all units.
'Note': In this fourth round calculation the CPPTE limitation of subparagraph (4)(i) of this subdivision may affect some units sooner than others leaving some CAIR NOx Ozone Season allowances unallocated after the calculation is first performed. Thus, this fourth round calculation may be performed more than once in order to allocate all remaining unassigned CAIR NOx Ozone Season allowances.

(5) The department will allocate CAIR NOx Ozone Season allowances only in whole ton increments. Following the department's completion of the allocation methodology of paragraphs (1) through (4) of this subdivision, the department will combine all fractional shares of CAIR NOx Ozone Season allowances that have been allocated to the pertinent compliance accounts. The resulting number of whole allowances resulting from this combination will then be individually allocated to CAIR NOx Ozone Season units with the first allowance being allocated to the unit having the largest fractional share, the second allowance being allocated to the unit having the next largest fractional share, and so on until all whole allowances are allocated.

(c) 'Additional electricity generating units subject to the NOx SIP Call.' For each instance that the department allocates CAIR NOx Ozone Season allowances under this subdivision, the department will determine the number of CAIR NOx Ozone Season allowances to be allocated to each CAIR NOx Ozone Season unit is not eligible to receive CAIR NOx Ozone Season allowances under subdivision (f) of this section, in accordance with the following procedures:

(1) First round calculation. Multiply the greatest heat input experienced by the unit for any single control period among the three most recent control periods, for which data are available, that precedes the date by which the department must make the CAIR NOx Ozone Season allowance allocations pursuant to section 243-5.2 by the lesser of:

(i) 0.15 lb/mmBtu; or

(ii) the lowest applicable emission rate.

(2) Second round calculation. Determine the allocation factor by dividing the number representing 85 percent of the sector budget by the sum of the first round calculation results for all the units.

(3) Third round calculation. Multiply the allocation factor by each unit's first round calculation result.

(4) Fourth round calculation. The number of CAIR NOx Ozone Season allowances to be allocated to each unit will be the lesser of:

(i) the number representing the unit's CPPTE; or

'Note': In this fourth round calculation the CPPTE limitation of subparagraph (4)(i) of this subdivision may affect some units sooner than others leaving some CAIR NOx Ozone Season allowances unallocated after the calculation is first performed. Thus, this fourth round calculation may be performed more than once in order to allocate all remaining unassigned CAIR NOx Ozone Season allowances.

(5) The department will allocate CAIR NOx Ozone Season allowances only in whole ton increments. Following the department's completion of the allocation methodology of paragraphs (1) through (4) of this subdivision, the department will combine all fractional shares of CAIR NOx Ozone Season allowances that have been allocated to the pertinent compliance accounts. The resulting number of whole allowances resulting from this combination will then be individually allocated CAIR NOx Ozone Season units with the first allowance being allocated to the unit having the largest fractional share, the second allowance being allocated to the unit having the next largest fractional share, and so on until all whole allowances are allocated.

(d) 'Portland cement kiln units.' For each instance that the department allocates CAIR NOx Ozone Season allowances under this subdivision, the department will determine the number of CAIR NOx Ozone Season allowances to be allocated to each CAIR NOx Ozone Season unit that is not eligible to receive CAIR NOx Ozone Season allowances under subdivision (f) of this section, in accordance with the following procedures:

(1) First round calculation. Multiply the greatest clinker production rate (ton-clinker) experienced by the unit for any single control period among the three most recent control periods, for which data are available, that precedes the date by which the department must make the CAIR NOx Ozone Season allowance allocations pursuant to section 243-5.2 by the lesser of:

(a) the lowest applicable emission rate (in lb/ton-clinker); or

(b) (1) for any long wet kiln, 6.0 lb/ton-clinker;

(2) for any long dry kiln, 5.1 lb/ton-clinker;

(3) for any preheater kiln, 3.8 lb/ton-clinker; and

(4) for any preheater/precalciner or precalciner kiln, 2.8 lb/ton-clinker.

(2) Second round calculation. Determine the allocation factor by dividing the 85 percent portion of the sector budget by the sum of the first round calculation results for all units.

(3) Third round calculation. Multiply the allocation factor by each unit's first round calculation result.

(4) Fourth round calculation. The number of CAIR NOx Ozone Season allowances to be allocated to each unit will be the lesser of:

(i) the number representing the unit's CPPTE; or

(5) The department will allocate CAIR NOx Ozone Season allowances only in whole ton increments. Following the department's completion of the allocation methodology of paragraphs (1) through (4) of this subdivision, the department will combine all fractional shares of CAIR NOx Ozone Season allowances that have been allocated to the pertinent compliance accounts. The resulting number of whole allowances resulting from this combination will then be individually allocated CAIR NOx Ozone Season units with the first allowance being allocated to the unit having the largest fractional share, the second allowance being allocated to the unit having the next largest fractional share, and so on until all whole allowances are allocated.

(e) 'Non-electricity generating units.' For each instance that the department allocates CAIR NOx Ozone Season allowances, the department will determine the number of CAIR NOx Ozone Season allowances to be allocated to each CAIR NOx Ozone Season unit subject to section 243-1.4(a)(3) in accordance with the following procedures:

(1) First round calculation.

(i) CAIR NOx Ozone Season units that have not previously received CAIR NOx Ozone Season allowances from the CAIR NOx Ozone Season new unit set-aside allocation under subdivision (f) of this section.

('a') For the 2009 control period and every control period thereafter:

('1') if the number resulting from multiplying the unit's uncontrolled emission rate as of 1995 by 0.4 is less than or equal to 0.17 lb/mmBtu, multiply the average of the highest heat input experienced by the unit for any two control periods among the four control periods preceding the date by which the department must submit the CAIR NOx Ozone Season allocations to the Administrator pursuant to section 243-5.2(b) by 0.17 lb/mmBtu; and

('2') if the number resulting from multiplying the unit's uncontrolled emission rate as of 1995 by 0.4 is greater than 0.17 lb/mmBtu, multiply the average of the highest heat input experienced by the unit for any two control periods among the four control periods preceding the date by which the department must submit the CAIR NOx Ozone Season allocations to the Administrator pursuant to section 243-5.2(b) by the number resulting from multiplying the unit's uncontrolled emission rate as of 1995 by 0.4.

(ii) CAIR NOx Ozone Season units that have previously received CAIR NOx Ozone Season allowances from the CAIR NOx Ozone Season new unit set-aside allocation under subdivision (f) of this section. For every control period for which CAIR NOx Ozone Season allowances will be allocated, multiply the greatest heat input experienced by the unit for any single control period among the three control periods preceding the date by which the department must submit the CAIR NOx Ozone Season allocations to the Administrator pursuant to section 243-5.2(b) by 0.17 lb/mmBtu.

(2) Second round calculation.

(i) When the sum of the first round calculation results for all CAIR NOx Ozone Season units is greater than or equal to the number representing the 85 percent portion of the non-electricity generating unit sector budget:

('a') for units covered by subclause (1)(i)('a')('1') of this subdivision, the allocation factor is one; and

('b') for units covered by subclause (1)(i)('a')('2') and subparagraph (1)(ii) of this subdivision, determine the allocation factor by dividing the total of the 85 percent portion of the non-electricity generating unit sector budget minus the sum of the first round calculation results for units covered by subclause (1)(i)('a')('1') of this subdivision by the sum of the first round calculation results for units covered by subclause (1)(i)('a')('2') and subparagraph (1)(ii) of this subdivision.

(ii) When the sum of the first round calculation results for all CAIR NOx Ozone Season units is less than the number representing the 85 percent portion of the non-electricity generating unit sector budget, determine the allocation factor by dividing the 85 percent portion of the non-electricity generating unit sector budget by the sum of the first round calculations for all non-electricity generating units.

(3) Third round calculation. Multiply the allocation factor by each unit's first round calculation result.

(4) Fourth round calculation. The number of CAIR NOx Ozone Season allowances to be allocated to each unit will be the lesser of:

(i) the number representing the unit's CPPTE; or

(5) The department will allocate CAIR NOx Ozone Season allowances only in whole ton increments. Following the department's completion of the allocation methodology of paragraphs (1) through (4) of this subdivision, the department will combine all fractional shares of CAIR NOx Ozone Season allowances that have been allocated to the pertinent compliance accounts. The resulting number of whole allowances resulting from this combination will then be individually allocated CAIR NOx Ozone Season units with the first allowance being allocated to the unit having the largest fractional share, the second allowance being allocated to the unit having the next largest fractional share, and so on until all whole allowances are allocated.

(f) 'CAIR NOx Ozone Season new unit set-aside allocations.' For each control period, the department will determine CAIR NOx Ozone Season allowances distributions to any CAIR NOx Ozone Season unit under section 243-1.4 that commenced operation, or is projected to commence operation, in New York State on or after May 1, 2003, in accordance with the following procedures:

(1) The department will establish a CAIR NOx Ozone Season new unit set-aside allocation for each control period consisting of five percent of the New York State CAIR NOx Trading Program Budget set forth in section 243-5.1 of this Subpart.

(2) Only CAIR NOx Ozone Season units under section 243-1.4 of this Part may receive CAIR NOx Ozone Season allowances from the CAIR NOx Ozone Season new unit set-aside allocations established in paragraph (1) of this subdivision. No unit that becomes a CAIR NOx Ozone Season unit by opting-in under Subpart 243-9 may receive CAIR NOx Ozone Season allowances from these CAIR NOx Ozone Season new unit set-aside allocations.

(3) CAIR NOx Ozone Season allowances may be transferred to CAIR NOx Ozone Season units for no more than six consecutive control periods, starting with the control period during which the CAIR NOx Ozone Season unit commenced, or is projected to commence, operation and ending with the control period preceding the control period for which the CAIR NOx Ozone Season unit will receive an allocation pursuant to subdivision (b), (c), (d), or (e) of this section.

(4) The CAIR designated representative of a CAIR NOx Ozone Season unit may submit a written request to the department to reserve for the CAIR NOx Ozone Season unit a number of CAIR NOx Ozone Season allowances in the relevant CAIR NOx Ozone Season new unit set-aside account in an amount no greater than the number representing the unit's CPPTE. The reservation request must be submitted prior to May 1st of the control period to which the reservation request pertains. The department will not consider any request for the reservation of CAIR NOx Ozone Season allowances that is submitted prior to the issuance to the CAIR NOx Ozone Season unit of all permits and authorizations by the department that are necessary for operation of the CAIR NOx Ozone Season unit. The reservation request must include information detailing the CPPTE of the CAIR NOx Ozone Season unit.

(5) Subject to the number of CAIR NOx Ozone Season allowances allocated to each new unit set-aside account, following department approval of the request for reservation of CAIR NOx Ozone Season allowances, the department will reserve CAIR NOx Ozone Season allowances in the CAIR NOx Ozone Season new unit set-aside account for each control period preceding the control period for which the CAIR NOx Ozone Season unit will receive an allocation pursuant to subdivision (b), (c), (d), or (e) of this section in an amount no greater than the CAIR NOx Ozone Season unit's CPPTE.

(6) If more than one CAIR NOx Ozone Season unit requests the reservation of CAIR NOx Ozone Season allowances and the number of requested allowances exceeds the allocation to the relevant CAIR NOx Ozone Season new unit set-aside account, the department will reserve CAIR NOx Ozone Season allowances from the account for the units in the order in which the CAIR NOx Ozone Season units submitted approvable reservation requests. For the purposes of this paragraph, requests will be considered simultaneous if they are made in the same calendar quarter. Should approvable reservation requests in excess of the allocation to the relevant CAIR NOx Ozone Season new unit set-aside account be submitted in the same calendar quarter by different CAIR NOx Ozone Season units, the department will reserve CAIR NOx Ozone Season allowances for those units on a basis proportional to the number of CAIR NOx Ozone Season allowances requested by each CAIR NOx Ozone Season unit.

(7) By July 31st of each year, the department will submit a request to the Administrator, in a format prescribed by the Administrator, to transfer reserved CAIR NOx Ozone Season allowances to the compliance account of the CAIR NOx Ozone Season source that includes the relevant CAIR NOx Ozone Season unit in an amount no greater than the number representing the unit's CPPTE.

(8) Flowback of undistributed CAIR NOx Ozone Season allowances from the new unit sector set-aside allocations. After making the deductions for compliance under section 243-6.5(b) or (d) for a control period, the department will determine whether any CAIR NOx Ozone Season allowances remain in the CAIR NOx Ozone Season new unit set-aside account for the control period. By the March 31 following the control period, and subject to the condition that the number of CAIR NOx Ozone Season allowances that will be transferred to the compliance account covering an existing CAIR NOx Ozone Season unit will not cause the unit's total allocation for the control period to exceed its CPPTE, the department will transfer any remaining CAIR NOx Ozone Season allowances from the CAIR NOx Ozone Season new unit set-aside account to the pertinent compliance account of each existing CAIR NOx Ozone Season unit that was allocated CAIR NOx Ozone Season allowances pursuant to subdivision (b), (c), (d), or (e) of this section using the methodology:

Existing CAIR NOx Ozone Season unit's share of CAIR NOx Ozone Season allowances remaining in the relevant CAIR NOx Ozone Season new unit set-aside account = Total CAIR NOx Ozone Season allowances remaining in the CAIR NOx Ozone Season new unit set-aside account × (the individual CAIR NOx Ozone Season unit's CAIR NOx Ozone Season allowance allocation determined in accordance with subdivision (b), (c), (d), or (e) of this section ÷ 85 percent of the CAIR NOx Ozone Season Trading Program Budget)

Where:

"Total CAIR NOx Ozone Season allowances remaining in the CAIR NOx Ozone Season new unit set-aside account" is the total number of CAIR NOx Ozone Season allowances remaining in the CAIR NOx Ozone Season new unit set-aside account (established under paragraph (1) of this subdivision) for the particular control period to which the CAIR NOx Ozone Season new unit set-aside allocation applies; and

"the individual CAIR NOx Ozone Season unit's CAIR NOx Ozone Season allowance allocation" is the number of CAIR NOx Ozone Season allowances allocated under subdivision (b), (c), (d), or (e) of this section to the individual CAIR NOx Ozone Season unit for the control period to which the CAIR NOx Ozone Season new unit set-aside allocation applies.

'Note': In this flowback methodology the CPPTE limitation under this subdivision may affect some units sooner than others leaving some CAIR NOx Ozone Season allowances unallocated after the methodology is first performed. Thus, this methodology may be performed more than once in order to allocate all remaining unassigned CAIR NOx Ozone Season allowances.

The department will transfer CAIR NOx Ozone Season allowances only in whole ton increments. Following the department's completion of the flowback methodology for a particular control period, the department will combine all fractional shares of CAIR NOx Ozone Season allowances that have been allocated to the pertinent compliance accounts. The resulting number of whole allowances resulting from this combination will then be individually allocated CAIR NOx Ozone Season units with the first allowance being allocated to the unit having the largest fractional share, the second allowance being allocated to the unit having the next largest fractional share, and so on until all whole allowances are allocated.

(g) 'Energy efficiency and renewable energy technology account.'

(1) The department will allocate 10 percent of the CAIR NOx Ozone Season Trading Program Budget to the energy efficiency and renewable energy technology account.

(2) Should the New York State Energy Research and Development Authority fail to, or be unable to, receive CAIR NOx Ozone Season allowances into the energy efficiency and renewable energy technology account for any control period, the department will allocate this 10 percent of the CAIR NOx Ozone Season Trading Program Budget pursuant to the provisions of subdivision (b), (c), (d), and (e) of this section, at which point the 85 percent figures set forth in subdivisions (b), (c), (d), (e), and (f) of this section will each be deemed to be 95 percent.

(3) Should the New York State Energy Research and Development Authority fail to, or be unable to, sell or distribute CAIR NOx Ozone Season allowances that have been allocated to the energy efficiency and renewable energy technology account within 12 months of the date the CAIR NOx Ozone Season allowances are allocated under paragraph (1) of this subdivision, all subject CAIR NOx Ozone Season allowances remaining in the account will be forfeited to the department and then reallocated by the department to existing CAIR NOx Ozone Season units in accordance with the methodology set forth below.

By March 31 following the forfeiture of the allowances to the department, and subject to the condition that the number of CAIR NOx Ozone Season allowances that will be transferred to the compliance account covering an existing CAIR NOx Ozone Season unit will not cause the unit's total allocation for the control period to exceed its CPPTE, the department will transfer any subject CAIR NOx Ozone Season allowances from the energy efficiency and renewable energy technology account to the pertinent compliance account of each existing CAIR NOx Ozone Season unit that was allocated CAIR NOx Ozone Season allowances pursuant to subdivision (b), (c), (d), or (e) of this section using the following methodology:

Existing CAIR NOx Ozone Season unit's share of subject CAIR NOx Ozone Season allowances in the energy efficiency and renewable energy technology account = Total subject CAIR NOx Ozone Season allowances remaining in the energy efficiency and renewable energy technology account × (the individual CAIR NOx Ozone Season unit's CAIR NOx Ozone Season allowance allocation determined in accordance with subdivision (b), (c), (d), or (e) of this section ÷ 85 percent of the CAIR NOx Ozone Season Trading Program Budget)

Where:

"Total subject CAIR NOx Ozone Season allowances remaining in the energy efficiency and renewable energy technology account" is the total number of CAIR NOx Ozone Season allowances remaining in the energy efficiency and renewable energy technology account that were allocated for a particular control period under subdivision (1) of this subdivision; and

"the individual CAIR NOx Ozone Season unit's CAIR NOx Ozone Season allowance allocation" is the number of CAIR NOx Ozone Season allowances allocated under subdivision (a) or (b) of this section to the individual CAIR NOx Ozone Season unit for same control period.

Subpart 243-6 CAIR NOx Ozone Season Allowance Tracking System

243-6.1 Reserved.

243-6.2 Establishment of accounts.

(a) 'Compliance accounts.' Except as provided in section 243-9.5(e), upon receipt of a complete certificate of representation under section 243-2.4, the Administrator will establish a compliance account for the CAIR NOx Ozone Season source for which the certificate of representation was submitted, unless the source already has a compliance account.

(b) 'General accounts.'

(1) Application for general account.

(i) Any person may apply to open a general account for the purpose of holding and transferring CAIR NOx Ozone Season allowances. An application for a general account may designate one and only one CAIR authorized account representative and one and only one alternate CAIR authorized account representative who may act on behalf of the CAIR authorized account representative. The agreement by which the alternate CAIR authorized account representative is selected shall include a procedure for authorizing the alternate CAIR authorized account representative to act in lieu of the CAIR authorized account representative.

(ii) A complete application for a general account shall be submitted to the Administrator and shall include the following elements in a format prescribed by the Administrator:

('a') name, mailing address, e-mail address (if any), telephone number, and facsimile transmission number (if any) of the CAIR authorized account representative and any alternate CAIR authorized account representative;

('b') organization name and type of organization, if applicable;

('c') a list of all persons subject to a binding agreement for the CAIR authorized account representative and any alternate CAIR authorized account representative to represent their ownership interest with respect to the CAIR NOx Ozone Season allowances held in the general account;

('d') the following certification statement by the CAIR authorized account representative and any alternate CAIR authorized account representative: "I certify that I was selected as the CAIR authorized account representative or the alternate CAIR authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CAIR NOx Ozone Season allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CAIR NOx Ozone Season Trading Program on behalf of such persons and that each such person shall be fully bound by my representations, actions, inactions, or submissions and by any order or decision issued to me by the Administrator or a court regarding the general account;" and

('e') the signature of the CAIR authorized account representative and any alternate CAIR authorized account representative and the dates signed.

(iii) Unless otherwise required by the department or the Administrator, documents of agreement referred to in the application for a general account shall not be submitted to the department or the Administrator. Neither the department nor the Administrator shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.

(2) Authorization of CAIR authorized account representative and alternate CAIR authorized account representative.

(i) Upon receipt by the Administrator of a complete application for a general account under paragraph (b)(1) of this section:

('a') The Administrator will establish a general account for the person or persons for whom the application is submitted.

('b') The CAIR authorized account representative and any alternate CAIR authorized account representative for the general account shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each person who has an ownership interest with respect to CAIR NOx Ozone Season allowances held in the general account in all matters pertaining to the CAIR NOx Ozone Season Trading Program, notwithstanding any agreement between the CAIR authorized account representative or any alternate CAIR authorized account representative and such person. Any such person shall be bound by any order or decision issued to the CAIR authorized account representative or any alternate CAIR authorized account representative by the Administrator or a court regarding the general account.

('c') Any representation, action, inaction, or submission by any alternate CAIR authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CAIR authorized account representative.
(ii) Each submission concerning the general account shall be submitted, signed, and certified by the CAIR authorized account representative or any alternate CAIR authorized account representative for the persons having an ownership interest with respect to CAIR NOx Ozone Season allowances held in the general account. Each such submission shall include the following certification statement by the CAIR authorized account representative or any alternate CAIR authorized account representative: "I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CAIR NOx Ozone Season allowances held in the general account. 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."

(iii) The Administrator will accept or act on a submission concerning the general account only if the submission has been made, signed, and certified in accordance with subparagraph (b)(2)(ii) of this section.

(3) Changing CAIR authorized account representative and alternate CAIR authorized account representative; changes in persons with ownership interest.

(i) The CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR NOx Ozone Season allowances in the general account.

(ii) The alternate CAIR authorized account representative for a general account may be changed at any time upon receipt by the Administrator of a superseding complete application for a general account under paragraph (b)(1) of this section. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous alternate CAIR authorized account representative before the time and date when the Administrator receives the superseding application for a general account shall be binding on the new alternate CAIR authorized account representative and the persons with an ownership interest with respect to the CAIR NOx Ozone Season allowances in the general account.

(iii) ('a') In the event a person having an ownership interest with respect to CAIR NOx Ozone Season allowances in the general account is not included in the list of such persons in the application for a general account, such person shall be deemed to be subject to and bound by the application for a general account, the representation, actions, inactions, and submissions of the CAIR authorized account representative and any alternate CAIR authorized account representative of the account, and the decisions and orders of the Administrator or a court, as if the person were included in such list.

('b') Within 30 days following any change in the persons having an ownership interest with respect to CAIR NOx Ozone Season allowances in the general account, including the addition of a new person, the CAIR authorized account representative or any alternate CAIR authorized account representative shall submit a revision to the application for a general account amending the list of persons having an ownership interest with respect to the CAIR NOx Ozone Season allowances in the general account to include the change.

(4) Objections concerning CAIR authorized account representative and alternate CAIR authorized account representative.

(i) Once a complete application for a general account under paragraph (b)(1) of this section has been submitted and received, the Administrator will rely on the application unless and until a superseding complete application for a general account under paragraph (b)(1) of this section is received by the Administrator.

(ii) Except as provided in subparagraph (b)(3)(i) or (ii) of this section, no objection or other communication submitted to the Administrator concerning the authorization, or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account shall affect any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative or the finality of any decision or order by the Administrator under the CAIR NOx Ozone Season Trading Program.

(iii) The Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CAIR authorized account representative or any alternate CAIR authorized account representative for a general account, including private legal disputes concerning the proceeds of CAIR NOx Ozone Season allowance transfers.

(5) Delegation by CAIR authorized account representative and alternate CAIR authorized account representative.

(i) A CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under Subparts 243-6 and 243-7.

(ii) An alternate CAIR authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the Administrator provided for or required under Subparts 243-6 and 243-7.

(iii) In order to delegate authority to make an electronic submission to the Administrator in accordance with subparagraph (b)(5)(i) or (ii) of this section, the CAIR authorized account representative or alternate CAIR authorized account representative, as appropriate, must submit to the Administrator a notice of delegation, in a format prescribed by the Administrator, that includes the following elements:

('a') the name, address, e-mail address, telephone number, and facsimile transmission number (if any) of such CAIR authorized account representative or alternate CAIR authorized account representative;

('b') the name, address, e-mail address, telephone number, and, facsimile transmission number (if any) of each such natural person (referred to as an "agent");

('c') for each such natural person, a list of the type or types of electronic submissions under subparagraph (b)(5)(i) or (ii) of this section for which authority is delegated to him or her;

('d') the following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: "I agree that any electronic submission to the Administrator that is by an agent identified in this notice of delegation and of a type listed for such agent in this notice of delegation and that is made when I am a CAIR authorized account representative or alternate CAIR authorized representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under 6 NYCRR section 243-6.2(b)(5)(iv) shall be deemed to be an electronic submission by me."; and

('e') the following certification statement by such CAIR authorized account representative or alternate CAIR authorized account representative: "Until this notice of delegation is superseded by another notice of delegation u