Express Terms Part 244, CAIR NOx Annual Trading Program

Subpart 244-1 CAIR NOx Annual Trading Program General Provisions

244-1.1 Purpose.
244-1.2 Definitions.
244-1.3 Measurements, abbreviations, and acronyms.
244-1.4 Applicability.
244-1.5 Retired unit exemption.
244-1.6 Standard requirements.
244-1.7 Computation of time.
244-1.8 Appeal procedures.

Subpart 244-2 CAIR Designated Representative for CAIR NOx Sources

244-2.1 Authorization and responsibilities of CAIR designated representative.
244-2.2 Alternate CAIR designated representative.
244-2.3 Changing CAIR designated representative and alternate CAIR designated representative; changes in owners and operators.
244-2.4 Certificate of representation.
244-2.5 Objections concerning CAIR designated representative.
244-2.6 Delegation by CAIR designated representative and alternate CAIR designated representative.

Subpart 244-3 Permits

244-3.1 General CAIR NOx Annual Trading Program permit requirements.
244-3.2 Submission of CAIR permit applications.
244-3.3 Information requirements for CAIR permit applications.
244-3.4 CAIR permit contents.
244-3.5 CAIR permit revisions.

Subpart 244-4 Reserved

Subpart 244-5 CAIR NOx Allowance Allocations

244-5.1 CAIR NOx Annual Trading Program Budget.
244-5.2 Timing requirements for CAIR NOx allowance allocations.
244-5.3 CAIR NOx allowance allocations.

Subpart 244-6 CAIR NOx Allowance Tracking System

244-6.1 Reserved.
244-6.2 Establishment of accounts.
244-6.3 Responsibilities of CAIR authorized account representative.
244-6.4 Recordation of CAIR NOx allowance allocations.
244-6.5 Compliance with CAIR NOx emissions limitation.
244-6.6 Banking.
244-6.7 Account error.
244-6.8 Closing of general accounts.

Subpart 244-7 CAIR NOx Allowance Transfers

244-7.1 Submission of CAIR NOx allowance transfers.
244-7.2 EPA recordation.
244-7.3 Notification.

Subpart 244-8 Monitoring and Reporting

244-8.1 General requirements.
244-8.2 Initial certification and recertification procedures.
244-8.3 Out of control periods.
244-8.4 Notifications.
244-8.5 Recordkeeping and reporting.
244-8.6 Petitions.

Subpart 244-9 CAIR NOx Opt-in Units

244-9.1 Applicability.
244-9.2 General.
244-9.3 CAIR designated representative.
244-9.4 Applying for CAIR opt-in permit.
244-9.5 Opt-in process.
244-9.6 CAIR opt-in permit contents.
244-9.7 Withdrawal from CAIR NOx Annual Trading Program.
244-9.8 Change in regulatory status.
244-9.9 NOx allowance allocations to CAIR NOx opt-in units.

Subpart 244-1 CAIR NOx Annual Trading Program General Provisions

244-1.1 Purpose.

This part establishes the New York State component of the Clean Air Interstate (CAIR) NOx Annual Trading Program, which is designed to mitigate interstate transport of fine particulates and nitrogen oxides by limiting emissions of NOx from fossil fuel-fired electricity generating units. Emissions of NOx and SO2 contribute to the formation of particulate matter with a mass median diameter of less than 2.5 microns. The department authorizes the Administrator to assist the department in implementing the CAIR NOx Annual Trading Program by performing the functions set forth for the Administrator in this Part.

244-1.2 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 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 Administrator under title IV of the Act and 40 CFR Parts 72 through 78.

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

(5) 'Allowance transfer deadline.' For a control period, midnight of March 1 (if it is a business day), or midnight of the first business day thereafter (if March 1 is not a business day), immediately following the control period and is the deadline by which a CAIR NOx allowance transfer must be submitted for recordation in a CAIR NOx source's compliance account in order to be used to meet the source's CAIR NOx emissions limitation for such control period in accordance with section 244-6.5.

(6) 'Alternate CAIR designated representative.' For a CAIR NOx source and each CAIR NOx 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 244-2 and 244-9, to act on behalf of the CAIR designated representative in matters pertaining to the CAIR NOx Annual Trading Program. If the CAIR NOx 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 source is also a CAIR NOx Ozone Season source, then this natural person shall be the same person as the alternate CAIR designated representative under the CAIR NOx Ozone Season Trading Program. If the CAIR NOx 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 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.' That component of the continuous emission monitoring system, or other emissions monitoring system approved for use under Subpart 244-8, 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 244-8.

(8) 'Boiler.' An enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to re-circulating 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 244-2, 244-6, and 244-9, to transfer and otherwise dispose of CAIR NOx 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 source and each CAIR NOx 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 244-2 and 244-9, to represent and legally bind each owner and operator in matters pertaining to the CAIR NOx Annual Trading Program. If the CAIR NOx 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 source is also a CAIR NOx Ozone Season source, then this natural person shall be the same person as the CAIR designated representative under the CAIR NOx Ozone Season Trading Program. If the CAIR NOx 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 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 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(o)(1) or (2) or (p), or under subpart EE of 40 CFR Part 97 or 40 CFR 97.188, 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 Program. An authorization to emit nitrogen oxides that is not issued under provisions of a State implementation plan that are approved under 40 CFR Part 51.123(o)(1) or (2) or (p) or subpart EE of 40 CFR Part 97 or 40 CFR 97.188 shall not be a CAIR NOx allowance.

(13) 'CAIR NOx allowance deduction or deduct CAIR NOx allowances.' The permanent withdrawal of CAIR NOx 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 units at a CAIR NOx source for a control period, determined in accordance with Subpart 244-8, or to account for excess emissions.

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

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

(16) 'CAIR NOx allowances held or hold CAIR NOx allowances.' The CAIR NOx allowances recorded by the Administrator, or submitted to the Administrator for recordation, in accordance with Subparts 244-6, 244-7, and 244-9, in a CAIR NOx Allowance Tracking System account.

(17) 'CAIR NOx Annual 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(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.

(18) 'CAIR NOx emissions limitation.' For a CAIR NOx source, the tonnage equivalent, in NOx emissions in a control period, of the CAIR NOx allowances available for deduction for the source under section 244-6.5(a) and (b) for the control period.

(19) 'CAIR NOx Ozone Season source.' A source that is subject to the CAIR NOx Ozone Season Trading Program.

(20) 'CAIR NOx Ozone Season Trading Program.' A multi-state nitrogen oxides air pollution control and emission reduction program established pursuant to Part 243 of this Title 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 with or established by the Administrator in accordance with subparts AAAA through IIII of 40 CFR Part 97 and 40 CFR Part 51.123(ee) and 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.

(21) 'CAIR NOx source.' A source that includes one or more CAIR NOx units.

(22) 'CAIR NOx unit.' A unit that is subject to the CAIR NOx Annual Trading Program under section 244-1.4 and, except for purposes of section 244-1.5 and Subpart 244-5, a CAIR NOx opt-in unit under Subpart 244-9.

(23) 'CAIR permit.' The portion of the legally binding and federally enforceable written permit, issued by the department under Subpart 244-3 and Parts 201 and 621 of this Title, including any permit revisions, specifying the CAIR NOx Annual Trading Program requirements applicable to a CAIR NOx source, to each CAIR NOx 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 244-1.5 and 244-9.5(h).

('a') For a unit that is a CAIR NOx unit under section 244-1.4 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 unit under section 244-1.4 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., re-powered), 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 244-1.5, for a unit that is not a CAIR NOx unit under section 244-1.4 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 unit under section 244-1.4.

('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., re-powered), 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) 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 244-9.5(h).

(ii) 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.

(iii) For a unit that is replaced by a unit at the same source (e.g., re-powered) 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 244-9.5(h).

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

(34) 'Compliance account.' A CAIR NOx Allowance Tracking System account, established by the Administrator for a CAIR NOx source under Subpart 244-6 or 244-9, in which any CAIR NOx allowance allocations for the CAIR NOx units at the source are initially recorded and in which are held any CAIR NOx allowances available for use for a control period in order to meet the source's CAIR NOx emissions limitation in accordance with section 244-6.5.

(35) 'Continuous emission monitoring system or CEMS.' The equipment required under Subpart 244-8 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 244-8:

(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.' The period beginning January 1 of a calendar year, except as provided in section 244-1.6(c)(2), and ending on December 31 of the same year, inclusive.

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

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

CPPTE ≤ [(ABUhr × BUER) + ((8,760 - ABUhr) × PER)] × MRHHI

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

CPPTE ≤ (ABUhr × BUER) + ((8,760 - ABUhr) × PER)

when PER and BUER are in lb/hr,

where:

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

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

"MRHHI" is the maximum rated hourly heat input for the unit based upon an inlet air temperature of 47.5° F for those units without temperature control.
"PER" is the lowest emission rate applicable to the use of the primary fuel (in lb/mmBtu or lb/hr based on inlet temperature of 47.5° F) allowed under the unit's permit.

(38) '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 244-8.

(39) '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.

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

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

(42) 'Fossil fuel-fired.' With regard to a unit, combusting any amount of fossil fuel in any calendar year.

(43) 'General account.' A CAIR NOx Allowance Tracking System account, established under Subpart 244-6, that is not a compliance account.
(44) 'Generator.' A device that produces electricity.

(45) 'Heat input.' With regard to a specified 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 244-8 and excluding the heat derived from preheated combustion air, recirculated flue gases, or exhaust from other sources.

(46) '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.

(47) '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.

(48) '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.

(49) 'Monitoring system.' Any monitoring system that meets the requirements of Subpart 244-8, including a continuous emissions monitoring system, an alternative monitoring system, or an excepted monitoring system under 40 CFR Part 75.

(50) '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.

(51) '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.

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

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

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

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

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

('c') any purchaser of power from a CAIR NOx unit at the source or the CAIR NOx 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 unit; or

(ii) with regard to any general account, any person who has an ownership interest with respect to the CAIR NOx 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 allowances.

(54) '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 Annual Trading Program as implemented in other States or, if no such agency has been so authorized, the Administrator.

(55) '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.

(56) '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.

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

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

(59) '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).

(60) 'Re-powered.' 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) through (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.

(61) '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.

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

(63) '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.

(64) '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.

(65) 'State.' One of the States or the District of Columbia that adopts the CAIR NOx Trading Program pursuant to 40 CFR51.123(o)(1) or (2).

(66) '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.

(67) 'Ton.' 2,000 pounds. For the purpose of determining compliance with the CAIR NOx 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 244-8, 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.

(68) '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.

(69) '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.

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

(71) 'Unit.' A stationary, fossil fuel-fired boiler or combustion turbine or other stationary, fossil fuel-fired combustion device.

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

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

(74) '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).

(75) '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).

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

244-1.3 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.

244-1.4 Applicability.

(a) Except as provided in paragraph (b) of this section:

(1) The following units shall be CAIR NOx units, and any source that includes one or more such units shall be a CAIR NOx source, subject to the requirements of this Subpart and subparts 244-2 through 244-8 of this part: 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 nameplate capacity of more than 25 MWe producing electricity for sale.

(2) If a stationary boiler or stationary combustion turbine that is not a CAIR NOx unit under paragraph (a)(1) of this section 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 unit as provided in paragraph (a)(1) of this section on the first date on which it both combusts fossil fuel and serves such generator.

(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 units:

(1) (i) Any unit that is a CAIR NOx unit under paragraph (a)(1) or (2) 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 (b)(1)(i) of this section for at least one calendar year, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOx 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 (b)(1)(i)('b') of this section.

(2) (i) Any unit that is a CAIR NOx unit under paragraph (a)(1) or (2) 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 unit under paragraph (a)(1) or (2) 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 (b)(2)(i) or (ii) of this section for at least three consecutive calendar years, but subsequently no longer meets all such requirements, the unit shall become a CAIR NOx 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.

244-1.5 Retired unit exemption.

(a) (1) Any CAIR NOx unit that is permanently retired and is not a CAIR NOx opt-in unit under Subpart 244-9 shall be exempt from the CAIR NOx Trading Program, except for the provisions of this section, 244-1.1 through 244-1.4, 244-1.6(c)(4) through (7), 244-1.7, and Subparts 244-2 and 244-5 through 244-7.

(2) The exemption under paragraph (a)(1) of this section shall become effective the day on which the CAIR NOx 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 244-3 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 subdivision (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 allowances under Subpart 244-5 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 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 244-3.3 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 244-8, 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.

244-1.6 Standard requirements.

(a) 'Permit Requirements.'

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

(i) submit to the department a complete CAIR permit application under section 244-3.3 in accordance with the deadlines specified in section 244-3.2; 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 source shall have a CAIR permit issued by the department under Subpart 244-3 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 source and each CAIR NOx unit at the source shall comply with the requirements of Subpart 244-8.

(2) The emissions measurements recorded and reported in accordance with Subpart 244-8 shall be used to determine compliance by each CAIR NOx source with the CAIR NOx 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 source and each CAIR NOx unit at the source shall hold, in the source's compliance account, CAIR NOx allowances available for compliance deductions for the control period under section 244-6.5(a) in an amount not less than the tons of total nitrogen oxides emissions for the control period from all CAIR NOx units at the source, as determined in accordance with Subpart 244-8.

(2) A CAIR NOx unit shall be subject to the requirements under paragraph (c)(1) of this section for the control period starting on the later of January 1, 2009 or the deadline for meeting the unit's monitor certification requirements under section 244-8.1(b)(1), (2), or (5) and for each control period thereafter.

(3) A CAIR NOx 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 allowance was allocated.

(4) CAIR NOx allowances shall be held in, deducted from, or transferred into or among CAIR NOx Allowance Tracking System accounts in accordance with Subparts 244-6, 244-7, and 244-9.

(5) A CAIR NOx allowance is a limited authorization to emit one ton of nitrogen oxides in accordance with the CAIR NOx Annual Trading Program. No provision of the CAIR NOx Annual Trading Program, the CAIR permit application, the CAIR permit, or an exemption under section 244-1.5 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 allowance does not constitute a property right.

(7) Upon recordation by the Administrator under Subpart 244-6, 244-7, or 244-9, every allocation, transfer, or deduction of a CAIR NOx allowance to or from a CAIR NOx source's compliance account is incorporated automatically in any CAIR permit of the source.

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

(1) the owners and operators of the source and each CAIR NOx unit at the source shall surrender the CAIR NOx allowances required for deduction under section 244-6.5(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 source and each CAIR NOx 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 244-2.4 for the CAIR designated representative for the source and each CAIR NOx 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 244-2.4 changing the CAIR designated representative.

(ii) All emissions monitoring information, in accordance with Subpart 244-8, provided that to the extent that Subpart 244-8 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 Annual Trading Program.

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

(2) The CAIR designated representative of a CAIR NOx source and each CAIR NOx unit at the source shall submit the reports required under the CAIR NOx Annual Trading Program, including those under Subpart 244-8.

(f) 'Liability.'

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

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

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

(g) 'Effect on other authorities.' No provision of the CAIR NOx Annual Trading Program, a CAIR permit application, a CAIR permit, or an exemption under section 244-1.5 shall be construed as exempting or excluding the owners and operators, and the CAIR designated representative, of a CAIR NOx source or CAIR NOx unit from compliance with any other provision of the applicable State or federal laws and regulations, or a federally enforceable permit.

244-1.7 Computation of time.

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

244-1.8 Appeal procedures.

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

Subpart 244-2 CAIR designated representative for CAIR NOx sources

244-2.1 Authorization and responsibilities of CAIR designated representative.

(a) Except as provided under section 244-2.2, each CAIR NOx source, including all CAIR NOx units at the source, shall have one and only one CAIR designated representative, with regard to all matters under the CAIR NOx Annual Trading Program concerning the source or any CAIR NOx unit at the source.

(b) The CAIR designated representative of the CAIR NOx source shall be selected by an agreement binding on the owners and operators of the source and all CAIR NOx units at the source and shall act in accordance with the certification statement in section 244-2.4(a)(4)(iv).

(c) Upon receipt by the Administrator of a complete certificate of representation under section 244-2.4, 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 source represented and each CAIR NOx unit at the source in all matters pertaining to the CAIR NOx Annual 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 Allowance Tracking System account will be established for a CAIR NOx unit at a source, until the Administrator has received a complete certificate of representation under section 244-2.4 for a CAIR designated representative of the source and the CAIR NOx units at the source.

(e) (1) Each submission under the CAIR NOx Annual Trading Program shall be submitted, signed, and certified by the CAIR designated representative for each CAIR NOx 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 source or a CAIR NOx unit only if the submission has been made, signed, and certified in accordance with paragraph (e)(1) of this section.

244-2.2 Alternate CAIR designated representative.

(a) A certificate of representation under section 244-2.4 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 244-2.4, 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 244-1.2, 244-2.1(a) and (d), sections 244-2.3, 244-2.4, 244-2.6, 244-6.2 and 244-9.3, whenever the term "CAIR designated representative" is used in Subparts 244-1 through 244-9, the term shall be construed to include the CAIR designated representative or any alternate CAIR designated representative.

244-2.3 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 244-2.4. 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 source and the CAIR NOx 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 244-2.4. 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 source and the CAIR NOx units at the source.

(1) In the event an owner or operator of a CAIR NOx source or a CAIR NOx unit is not included in the list of owners and operators in the certificate of representation under section 244-2.4, 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 source or a CAIR NOx 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 244-2.4 amending the list of owners and operators to include the change.

244-2.4 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 source, and each CAIR NOx 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; and

(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 source and of each CAIR NOx 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 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 Annual Trading Program on behalf of the owners and operators of the source and of each CAIR NOx 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 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 unit, or where a utility or industrial customer purchases power from a CAIR NOx 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 unit at the source; and CAIR NOx allowances and proceeds of transactions involving CAIR NOx allowances will be deemed to be held or distributed in proportion to each holders legal, equitable, leasehold, or contractual reservation or entitlement, except that, if such multiple holders have expressly provided for a different distribution of CAIR NOx allowances by contract, CAIR NOx allowances and proceeds of transactions involving CAIR NOx 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.

244-2.5 Objections concerning CAIR designated representative.

(a) Once a complete certificate of representation under section 244-2.4 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 244-2.4 is received by the Administrator.

(b) Except as provided in section 244-2.3(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 Annual 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 allowance transfers.

244-2.6 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 244-2.6(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 244-2.6(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 244-2.6 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 244-3 Permits

244-3.1 General CAIR NOx Annual Trading Program permit requirements.

(a) Each CAIR NOx 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 source and the NOx units at the source covered by the CAIR permit, all applicable requirements for the CAIR NOx Annual Trading Program, the CAIR NOx Ozone Season 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.

244-3.2 Submission of CAIR permit applications.

The CAIR designated representative of any CAIR NOx source must submit to the department a complete CAIR permit application under section 243-3.3 for the source covering each CAIR NOx unit at the source by the later of January 1, 2008 or the date on which the CAIR NOx unit commences commercial operation, except as provided in section 244-9.4.

244-3.3 Information requirements for CAIR permit applications.

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

(a) identification of the CAIR NOx source;

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

244-3.4 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 244-3.3 and all applicable requirements of this Subpart.

244-3.5 CAIR permit revisions.

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

Subpart 244-4 Reserved.

Subpart 244-5 CAIR NOx Allowance Allocations

244-5.1 CAIR NOx Annual Trading Program Budgets.

(a) The Phase 1 CAIR NOx Annual Trading Program Budget for the 2009 - 2014 control periods is 45,617 tons for each control period.

(b) The Phase 2 CAIR NOx Annual Trading Program Budget for 2015 and beyond is 38,014 tons for each control period.

244-5.2 Timing requirements for NOx allowance allocations.

(a) By September 30, 2007, the department will submit to the Administrator, in a format prescribed by the Administrator the CAIR NOx allowance allocations, in accordance with section 244-5.3, for the 2009, 2010 and 2011 control periods.

(b) By October 31, 2008 and October 31st of each year thereafter, the department will allocate and submit to the Administrator, in a format prescribed by the Administrator, CAIR NOx allowances, in accordance with section 244-5.3 of this Subpart, for the control period that commences in the year that is four years after the applicable deadline for submission under this subdivision. If the department fails to allocate NOx allowances in accordance with this subdivision, the department will allocate, for the applicable control period, the same number of CAIR NOx allowances as were allocated for the preceding control period. Should the department's failure to allocate CAIR NOx allowances occur with respect the to the allocations for the 2015 control period, each CAIR NOx unit will be allocated CAIR NOx allowances from the Phase 2 CAIR NOx Annual Trading Program Budget based on the unit's proportional share of its previous allocation from the Phase 1 CAIR NOx Annual Trading Program Budget.

244-5.3 CAIR NOx allowance allocations.

(a) For each instance that the department allocates CAIR NOx allowances for the 2009 through 2014 control periods, the department will determine the number of CAIR NOx allowances to be allocated to each CAIR NOx unit under section 244-1.4(a) that is not eligible to receive CAIR NOx allowances under subdivision (c) 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 is available, that precede the date by which the department must make the CAIR NOx allowance allocations pursuant to section 244-5.2 by 0.15 lb/mmBtu.

(2) Second round calculation. Determine the allocation factor by dividing the number representing 85 percent of the Phase 1 CAIR NOx Annual Trading Program 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 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 allowances remaining in the 85 percent portion of the CAIR NOx Annual Trading Program 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 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 allowances.

(5) The department will allocate CAIR NOx 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 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 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.

(b) For each instance that the department allocates CAIR NOx allowances for each control period commencing on or after January 1, 2015, the department will determine the number of CAIR NOx allowances to be allocated to each CAIR NOx unit under section 244-1.4(a) that is not eligible to receive CAIR NOx allowances under subdivision (c) 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 is available, that precede the date by which the department must make the NOx allocations pursuant to section 244-5.2(b) by 0.125 lb/mmBtu.

(2) Second round calculation. Determine the allocation factor by dividing the number representing 85 percent of the Phase 2 CAIR NOx Annual Trading Program 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 allowances to be allocated to each unit will be the lesser of:

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

(c) 'CAIR NOx new unit set-aside allocations.' For each control period, the department will determine CAIR NOx allowance distributions to any CAIR NOx unit under section 244-1.4 that commenced operation, or is projected to commence operation, in New York State on or after January 1, 2003, in accordance with the following procedures:

(1) The department will establish a CAIR NOx new unit set-aside allocation for each control period consisting of five percent of the New York State CAIR NOx Annual Trading Program Budget set forth in section 244-5.1 of this Subpart.

(2) Only CAIR NOx units under section 244-1.4 of this Part may receive CAIR NOx allowances from the CAIR NOx new unit set-aside allocations established in paragraph (1) of this subdivision. No unit that becomes a CAIR NOx unit by opting-in under Subpart 244-9 may receive CAIR NOx allowances from these CAIR NOx new unit set-aside allocations.

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

(4) The CAIR designated representative of a CAIR NOx unit may submit a written request to the department to reserve for the CAIR NOx unit, a number of CAIR NOx allowances in the relevant CAIR NOx 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 January 1 of the control period to which the reservation request pertains. The department will not consider any request for the reservation of CAIR NOx allowances that is submitted prior to the issuance to the CAIR NOx unit of all permits and authorizations by the department that are necessary for operation of the CAIR NOx unit. The reservation request must include information detailing the CPPTE of the CAIR NOx unit.

(5) Subject to the number of CAIR NOx allowances allocated to each new unit set-aside account established pursuant to paragraph (2) of this subdivision, following department approval of the request for reservation of CAIR NOx allowances, the department will reserve CAIR NOx allowances in the CAIR NOx new unit set-aside account for each control period preceding the control period for which the CAIR NOx unit will receive an allocation pursuant to subdivision (a) or (b) of this section in an amount no greater than the CAIR NOx unit's CPPTE.

(6) If more than one CAIR NOx unit requests the reservation of CAIR NOx allowances and the number of requested allowances exceeds the allocation to the relevant CAIR NOx new unit set-aside account, the department will reserve CAIR NOx allowances from the account for the units in the order in which the CAIR NOx 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 new unit set-aside account be submitted in the same calendar quarter by different CAIR NOx units, the department will reserve CAIR NOx allowances for those units on a basis proportional to the number of CAIR NOx allowances requested by each CAIR NOx unit.

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

(8) Flowback of undistributed CAIR NOx allowances from the new unit sector set-aside allocations. After making the deductions for compliance under section 244-6.5(b) or (d) for a control period, the department will determine whether any CAIR NOx allowances remain in the new unit CAIR NOx unit set-aside account for the control period. By the July 1 immediately following the control period, and subject to the condition that the number of CAIR NOx allowances that will be transferred to the compliance account covering an existing CAIR NOx 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 allowances from the CAIR NOx new unit set-aside account to the pertinent compliance account of each existing CAIR NOx unit that was allocated CAIR NOx allowances pursuant to subdivision (a) or (b) of this section using the methodology:

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

Where:

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

"the individual CAIR NOx unit's CAIR NOx allowance allocation" is the number of CAIR NOx allowances allocated under subdivision (a) or (b) of this section to the individual CAIR NOx unit for the control period to which the new CAIR NOx unit set-aside allocation applies; and

'Note': In this flowback methodology the CPPTE limitation under this subdivision may affect some units sooner than others leaving some CAIR NOx 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 allowances.
The department will transfer CAIR NOx allowances only in whole ton increments. Following the department's completion of the flowback methodology, the department will combine all fractional shares of CAIR NOx 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 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) 'Energy efficiency and renewable energy technology account.'

(1) The department will allocate 10 percent of the CAIR NOx Annual 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 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 Annual Trading Program Budget pursuant to the provisions of subdivision (a) and (b) of this section, at which point the 85 percent figures set forth in subdivisions (a), (b), and (c) 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 allowances that have been allocated to the energy efficiency and renewable energy technology account within 12 months of the date the CAIR NOx allowances are allocated under paragraph (1) of this subdivision, all subject CAIR NOx allowances remaining in the account will be forfeited to the department and then reallocated by the department to existing CAIR NOx units in accordance with the methodology set forth below.

By July 1 following the forfeiture of the allowances to the department, and subject to the condition that the number of CAIR NOx allowances that will be transferred to the compliance account covering an existing CAIR NOx 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 allowances from the energy efficiency and renewable energy technology account to the pertinent compliance account of each existing CAIR NOx unit that was allocated CAIR NOx allowances pursuant to subdivision (a) or (b) of this section using the following methodology:

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

Where:

"Total subject CAIR NOx allowances remaining in the energy efficiency and renewable energy technology account" is the total number of CAIR NOx 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 department will transfer CAIR NOx allowances only in whole ton increments. Following the department's completion of the flowback methodology, the department will combine all fractional shares of CAIR NOx 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 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.

Subpart 244-6 CAIR NOx Allowance Tracking System

244-6.1 Reserved.

244-6.2 Establishment of accounts.

(a) 'Compliance accounts.' Except as provided in section 244-9.5(e), upon receipt of a complete certificate of representation under section 244-2.4, the Administrator will establish a compliance account for the CAIR NOx 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 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 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 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 Annual 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 allowances held in the general account in all matters pertaining to the CAIR NOx Annual 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 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 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 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 allowances in the general account.

(iii) (a) In the event a person having an ownership interest with respect to CAIR NOx allowances in the general account is not included in the list of such persons in the application for a general account, such new 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 new 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 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 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 Annual 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 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 244-6 and 244-7.

(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 244-6 and 244-7.

(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 244-6.2(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 under 6 NYCRR section 244-6.2(b)(5)(iv), 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 244-6.2(b)(5) is terminated."

(iv) a notice of delegation submitted under subparagraph (b)(5)(iii) of this section shall be effective, with regard to the CAIR authorized account representative or alternate CAIR authorized account 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 authorized account representative or alternate CAIR authorized account 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.

(v) any electronic submission covered by the certification in clause (b)(5)(iii)('d') of this section and made in accordance with a notice of delegation effective under subparagraph (b)(5)(iv) 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.

(c) 'Account identification.' The Administrator will assign a unique identifying number to each account established under subdivision (a) or (b) of this section.

244-6.3 Responsibilities of CAIR authorized account representative.

Following the establishment of a CAIR NOx Allowance Tracking System account, all submissions to the Administrator pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of CAIR NOx allowances in the account, shall be made only by the CAIR authorized account representative for the account.

244-6.4 Recordation of CAIR NOx allowance allocations.

(a) By September 30, 2007, the Administrator will record in the CAIR NOx source's compliance account the CAIR NOx allowances allocated for the CAIR NOx units at the source, as submitted by the department in accordance with subdivision 244-5.2(a), for the control periods in 2009, 2010, and 2011.

(b) By December 1, 2008, and December 1 of each year thereafter, the Administrator will record in the CAIR NOx source's compliance account the CAIR NOx allowances allocated for the CAIR NOx units at the source, as submitted by the department in accordance with subdivision 244-5.2(b), for the control period in the fourth year after the applicable deadline for recordation under this paragraph.

(c) "By December 1, 2009 and December 1 of each year thereafter, the Administrator will record in the CAIR NOx source's compliance account the CAIR NOx allowances allocated for the CAIR NOx units at the source, as submitted by the department in accordance with subdivision 244-5.3(f)(7) for the control period in the year of the applicable deadline for recordation under this paragraph.

(d) Serial numbers for allocated CAIR NOx allowances. When recording the allocation of CAIR NOx allowances for a CAIR NOx unit in a compliance account, the Administrator will assign each CAIR NOx allowance a unique identification number that will include digits identifying the year of the control period for which the CAIR NOx allowance is allocated.

244-6.5 Compliance with CAIR NOx emissions limitation.

(a) 'Allowance transfer deadline.' The CAIR NOx allowances are available to be deducted for compliance with a source's CAIR NOx emissions limitation for a control period in a given calendar year only if the CAIR NOx allowances:

(1) were allocated for the control period in the year or a prior year; and

(2) are held in the compliance account as of the allowance transfer deadline for the control period or are transferred into the compliance account by a CAIR NOx allowance transfer correctly submitted for recordation under sections 244-7.1 and 244-7.2 by the allowance transfer deadline for the control period.

(b) 'Deductions for compliance.' Following the recordation, in accordance with section 244-7.2, of CAIR NOx allowance transfers submitted for recordation in a source's compliance account by the allowance transfer deadline for a control period, the Administrator will deduct from the compliance account CAIR NOx allowances available under subdivision (a) of this section in order to determine whether the source meets the CAIR NOx emissions limitation for the control period, as follows:

(1) until the amount of CAIR NOx allowances deducted equals the number of tons of total nitrogen oxides emissions, determined in accordance with Subpart 244-8, from all CAIR NOx units at the source for the control period; or

(2) if there are insufficient CAIR NOx allowances to complete the deductions in paragraph (b)(1) of this section, until no more CAIR NOx allowances available under subdivision (a) of this section remain in the compliance account.

(c) (1) Identification of CAIR NOx allowances by serial number. The CAIR authorized account representative for a source's compliance account may request that specific CAIR NOx allowances, identified by serial number, in the compliance account be deducted for emissions or excess emissions for a control period in accordance with subdivision (b) or (d) of this section. Such request shall be submitted to the Administrator by the allowance transfer deadline for the control period and include, in a format prescribed by the Administrator, the identification of the CAIR NOx source and the appropriate serial numbers.

(2) First in, first out. The Administrator will deduct CAIR NOx allowances under subdivision (b) or (d) of this section from the source's compliance account, in the absence of an identification or in the case of a partial identification of CAIR NOx allowances by serial number under paragraph (c)(1) of this section, on a first in, first out (FIFO) accounting basis in the following order:

(i) any CAIR NOx allowances that were allocated to the units at the source, in the order of recordation; and then

(ii) any CAIR NOx allowances that were allocated to any entity and transferred and recorded in the compliance account pursuant to Subpart 244-7, in the order of recordation.

(d) 'Deductions for excess emissions.'

(1) After making the deductions for compliance under subdivision (b) of this section for a control period in a calendar year in which the CAIR NOx source has excess emissions, the Administrator will deduct from the source's compliance account an amount of CAIR NOx allowances, allocated for the control period in the immediately following calendar year, equal to three times the number of tons of the source's excess emissions.

(2) Any allowance deduction required under paragraph (d)(1) of this section shall not affect the liability of the owners and operators of the CAIR NOx source or the CAIR NOx units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violations, as ordered under the Act or applicable State law.

(i) For purposes of determining the number of days of a violation, if a CAIR NOx source has excess emissions for a control period, each day in the control period constitutes a day in violation.
(ii) Each ton of excess emissions is a separate violation.

(e) 'Recordation of deductions.' The Administrator will record in the appropriate compliance account all deductions from such an account under subdivision (b) or (d) of this section and Subpart 244-9.

(f) 'Administrator's action on submissions.'

(1) The Administrator may review and conduct independent audits concerning any submission under the CAIR NOx Annual Trading Program and make appropriate adjustments of the information in the submissions.

(2) The Administrator may deduct CAIR NOx allowances from or transfer CAIR NOx allowances to a source's compliance account based on the information in the submissions, as adjusted under paragraph (f)(1) of this section, and record such deductions and transfers.

244-6.6 Banking.

(a) CAIR NOx allowances may be banked for future use or transfer in a compliance account or a general account in accordance with subdivision (b) of this section.

(b) Any CAIR NOx allowance that is held in a compliance account or a general account will remain in such account unless and until the CAIR NOx allowance is deducted or transferred under section 244-6.5, section 244-6.7, or Subpart 244-7 or Subpart 244-9.

244-6.7 Account error.

The Administrator may, at his or her sole discretion and on his or her own motion, correct any error in any CAIR NOx Allowance Tracking System account. Within 10 business days of making such correction, the Administrator will notify the CAIR authorized account representative for the account.

244-6.8 Closing of general accounts.

(a) The CAIR authorized account representative of a general account may submit to the Administrator a request to close the account, which shall include a correctly submitted allowance transfer under sections 244-7.1 and 244-7.2 for any CAIR NOx allowances in the account to one or more other CAIR NOx Allowance Tracking System accounts.

(b) If a general account has no allowance transfers in or out of the account for a 12-month period or longer and does not contain any CAIR NOx allowances, the Administrator may notify the CAIR authorized account representative for the account that the account will be closed following 20 business days after the notice is sent. The account will be closed after the 20-day period unless, before the end of the 20-day period, the Administrator receives a correctly submitted transfer of CAIR NOx allowances into the account under sections 244-7.1 and 244-7.2 or a statement submitted by the CAIR authorized account representative demonstrating to the satisfaction of the Administrator good cause as to why the account should not be closed.

Subpart 244-7 CAIR NOx Allowance Transfers

244-7.1 Submission of CAIR NOx allowance transfers.

A CAIR authorized account representative seeking recordation of a CAIR NOx allowance transfer shall submit the transfer to the Administrator. To be considered correctly submitted, the CAIR NOx allowance transfer shall include the following elements, in a format specified by the Administrator:

(a) the account numbers for both the transferor and transferee accounts;

(b) the serial number of each CAIR NOx allowance that is in the transferor account and is to be transferred; and

244-7.2 EPA recordation.

(a) Within five business days (except as provided in subdivision (b) of this section) of receiving a CAIR NOx allowance transfer, the Administrator will record a CAIR NOx allowance transfer by moving each CAIR NOx allowance from the transferor account to the transferee account as specified by the request, provided that:

(1) the transfer is correctly submitted under section 244-7.1; and

(2) the transferor account includes each CAIR NOx allowance identified by serial number in the transfer.

(b) A CAIR NOx allowance transfer that is submitted for recordation after the allowance transfer deadline for a control period and that includes any CAIR NOx allowances allocated for any control period before such allowance transfer deadline will not be recorded until after the Administrator completes the deductions under section 244-6.5 for the control period immediately before such allowance transfer deadline.

(c) Where a CAIR NOx allowance transfer submitted for recordation fails to meet the requirements of subdivision (a) of this section, the Administrator will not record such transfer.

244-7.3 Notification.

(a) 'Notification of recordation.' Within five business days of recordation of a CAIR NOx allowance transfer under section 244-7.2, the Administrator will notify the CAIR authorized account representatives of both the transferor and transferee accounts.

(b) 'Notification of non recordation.' Within 10 business days of receipt of a CAIR NOx allowance transfer that fails to meet the requirements of section 244-7.2(a), the Administrator will notify the CAIR authorized account representatives of both accounts subject to the transfer of:

(1) a decision not to record the transfer, and

(2) the reasons for such non recordation.

(c) Nothing in this section shall preclude the submission of a CAIR NOx allowance transfer for recordation following notification of non recordation.

Subpart 244-8 Monitoring and Reporting

244-8.1 General Requirements.

The owners and operators, and to the extent applicable, the CAIR designated representative, of a CAIR NOx unit, shall comply with the monitoring, recordkeeping, and reporting requirements as provided in this Subpart and in Subpart H of 40 CFR Part 75. For purposes of complying with such requirements, the definitions in section 244-1.2 and in 40 CFR 72.2 shall apply, and the terms "affected unit," "designated representative," and "continuous emission monitoring system" (or CEMS) in 40 CFR Part 75 shall be deemed to refer to the terms "CAIR NOx unit," "CAIR designated representative," and "continuous emission monitoring system" (or "CEMS") respectively, as defined in section 244-1.2. The owner or operator of a unit that is not a CAIR NOx unit but that is monitored under 40 CFR 75.72(b)(2)(ii) shall comply with the same monitoring, recordkeeping, and reporting requirements as a CAIR NOx unit.

(a) 'Requirements for installation, certification, and data accounting.' The owner or operator of each CAIR NOx unit shall:

(1) install all monitoring systems required under this Subpart for monitoring NOx mass emissions and individual unit heat input (including all systems required to monitor NOx emission rate, NOx concentration, stack gas moisture content, stack gas flow rate, CO2 or O2 concentration, and fuel flow rate, as applicable, in accordance with 40 CFR 75.71 and 40 CFR 75.72);

(2) successfully complete all certification tests required under section 244-8.2 and meet all other requirements of this Subpart and 40 CFR Part 75 applicable to the monitoring systems under paragraph (a)(1) of this section; and

(3) record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section.

(b) 'Compliance deadlines.' Except as provided in subdivision (e) of this section, the owner or operator shall meet the monitoring system certification and other requirements of paragraphs (a)(1) and (2) of this section on or before the following dates. The owner or operator shall record, report, and quality-assure the data from the monitoring systems under paragraph (a)(1) of this section on and after the following dates.

(1) For the owner or operator of a CAIR NOx unit that commences commercial operation before July 1, 2007, by January 1, 2008.

(2) For the owner or operator of a CAIR NOx unit that commences commercial operation on or after July 1, 2007, by the later of the following dates:

(i) January 1, 2008; or

(ii) 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which the unit commences commercial operation.

(3) For the owner or operator of a CAIR NOx unit for which construction of a new stack or flue or installation of add-on NOx emission controls is completed after the applicable deadline under paragraph (b)(1), (2), (4), or (5) of this section, by 90 unit operating days or 180 calendar days, whichever occurs first, after the date on which emissions first exit to the atmosphere through the new stack or flue or add-on NOx emissions controls.

(4) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a unit for which a CAIR opt-in permit application is submitted and not withdrawn and a CAIR opt-in permit is not yet issued or denied under Subpart 244-9, by the date specified in section 244-9.5(b).

(5) Notwithstanding the dates in paragraphs (b)(1) and (2) of this section, for the owner or operator of a CAIR NOx opt-in unit under Subpart 244-9, by the date on which the CAIR NOx opt-in unit enters the CAIR NOx Annual Trading Program as provided in section 244-9.5(g).

The owner or operator of a CAIR NOx unit that does not meet the applicable compliance date set forth in subdivision (b) of this section for any monitoring system under paragraph (a)(1) of this section shall, for each such monitoring system, determine, record, and report maximum potential (or, as appropriate, minimum potential) values for NOx concentration, NOx emission rate, stack gas flow rate, stack gas moisture content, fuel flow rate, and any other parameters required to determine NOx mass emissions and heat input in accordance with 40 CFR 75.31(b)(2) or (c)(3), section 2.4 of appendix D to 40 CFR Part 75, or section 2.5 of appendix E to 40 CFR Part 75, as applicable.

(d) 'Prohibitions.'

(1) No owner or operator of a CAIR NOx unit shall use any alternative monitoring system, alternative reference method, or any other alternative to any requirement of this Subpart without having obtained prior written approval in accordance with section 244-8.6.

(2) No owner or operator of a CAIR NOx unit shall operate the unit so as to discharge, or allow to be discharged, NOx emissions to the atmosphere without accounting for all such emissions in accordance with the applicable provisions of this Subpart and 40 CFR Part 75.

(3) No owner or operator of a CAIR NOx unit shall disrupt the continuous emission monitoring system, any portion thereof, or any other approved emission monitoring method, and thereby avoid monitoring and recording NOx mass emissions discharged into the atmosphere, except for periods of recertification or periods when calibration, quality assurance testing, or maintenance is performed in accordance with the applicable provisions of this Subpart and 40 CFR Part 75.

(4) No owner or operator of a CAIR NOx unit shall retire or permanently discontinue use of the continuous emission monitoring system, any component thereof, or any other approved monitoring system under this Subpart, except under any one of the following circumstances:

(i) during the period that the unit is covered by an exemption under section 244-1.5 that is in effect;

(ii) the owner or operator is monitoring emissions from the unit with another certified monitoring system approved, in accordance with the applicable provisions of this Subpart and 40 CFR Part 75, by the Department for use at that unit that provides emission data for the same pollutant or parameter as the retired or discontinued monitoring system; or

(iii) the CAIR designated representative submits notification of the date of certification testing of a replacement monitoring system for the retired or discontinued monitoring system in accordance with section 244-8.2(d)(3)(i).

(e) 'Long-term cold storage.' The owner or operator of a CAIR NOx unit is subject to the applicable provisions of 40 CFR Part 75 of this chapter concerning units in long-term cold storage.

244-8.2 Initial certification and recertification procedures.

(a) The owner or operator of a CAIR NOx unit shall be exempt from the initial certification requirements of this section for a monitoring system under section 244-8.1(a)(1) if the following conditions are met:

(1) the monitoring system has been previously certified in accordance with 40 CFR Part 75; and

(2) the applicable quality-assurance and quality-control requirements of 40 CFR 75.21 and appendix B, appendix D, and appendix E to 40 CFR Part 75 are fully met for the certified monitoring system described in paragraph (a)(1) of this section.

(b) The recertification provisions of this section shall apply to a monitoring system under section 244-8.1(a)(1) exempt from initial certification requirements under subdivision (a) of this section.

(c) If the Administrator has previously approved a petition under 40 CFR 75.17(a) or (b) for apportioning the NOx emission rate measured in a common stack or a petition under 40 CFR 75.66 for an alternative to a requirement in 40 CFR 75.12 or 40 CFR 75.17, the CAIR designated representative shall resubmit the petition to the Administrator under section 244-8.6(a) to determine whether the approval applies under the CAIR NOx Annual Trading Program.

(d) Except as provided in subdivision (a) of this section, the owner or operator of a CAIR NOx unit shall comply with the following initial certification and recertification procedures for a continuous monitoring system (i.e., a continuous emission monitoring system and an excepted monitoring system under appendices D and E to 40 CFR part 75) under section 244-8.1(a)(1). The owner or operator of a unit that qualifies to use the low mass emissions excepted monitoring methodology under 40 CFR 75.19 or that qualifies to use an alternative monitoring system under Subpart E of 40 CFR Part 75 shall comply with the procedures in subdivision (e) or (f) of this section respectively.

(1) Requirements for initial certification. The owner or operator shall ensure that each continuous monitoring system under section 244-8.1(a)(1)(including the automated data acquisition and handling system) successfully completes all of the initial certification testing required under 40 CFR 75.20 by the applicable deadline in section 244-8.1(b). In addition, whenever the owner or operator installs a monitoring system to meet the requirements of this Subpart in a location where no such monitoring system was previously installed, initial certification in accordance with 40 CFR 75.20 is required.

(2) Requirements for recertification. Whenever the owner or operator makes a replacement, modification, or change in any certified continuous emission monitoring system under section 244-8.1(a)(1) that may significantly affect the ability of the system to accurately measure or record NOx mass emissions or heat input rate or to meet the quality-assurance and quality-control requirements of 40 CFR 75.21 or appendix B to 40 CFR Part 75, the owner or operator shall recertify the monitoring system in accordance with 40 CFR 75.20(b) . Furthermore, whenever the owner or operator makes a replacement, modification, or change to the flue gas handling system or the unit's operation that may significantly change the stack flow or concentration profile, the owner or operator shall recertify each continuous emission monitoring system whose accuracy is potentially affected by the change, in accordance with 40 CFR 75.20(b). Examples of changes to a continuous emission monitoring system that require recertification include replacement of the analyzer, complete replacement of an existing continuous emission monitoring system, or change in location or orientation of the sampling probe or site. Any fuel flowmeter system, and any excepted NOx monitoring system under appendix E to 40 CFR part 75, under section 244-8.1(a)(1) are subject to the re