Express Terms, Part 242 CO2 Budget Trading Program
Subpart 242-1 CO2 Budget Trading Program General Provisions
242-1.1 Purpose
242-1.2 Definitions
242-1.3 Measurements, abbreviations and acronyms
242-1.4 Applicability
242-1.5 Standard requirements
242-1.6 Computation of time
242-1.7 Severability
Subpart 242-2 Authorized Account Representative for CO2 Budget Sources
242-2.1 Authorization and responsibilities of the CO2 authorized account representative
242-2.2 Alternate CO2 authorized account representative
242-2.3 Changing the CO2 authorized account representative and the alternate CO2 authorized account representative; changes in the owners and operators
242-2.4 Account certificate of representation
242-2.5 Objections concerning the CO2 authorized account representative
242-2.6 Delegation by CO2 authorized account representative and alternate CO2 authorized account representative
Subpart 242-3 Permits
242-3.1 General CO2 budget permit requirements
242-3.2 Submission of CO2 budget permit applications
242-3.3 Information requirements for CO2 budget permit applications
Subpart 242-4 Compliance Certification
242-4.1 Compliance certification report
242-4.2 Department's action on compliance certifications
Subpart 242-5 CO2 Allowance Allocations
242-5.1 CO2 Budget Trading Program base budget
242-5.2 RESERVED
242-5.3 CO2 allowance allocations
Subpart 242-6 CO2 Allowance Tracking System
242-6.1 CO2 Allowance Tracking System accounts
242-6.2 Establishment of accounts
242-6.3 CO2 Allowance Tracking System responsibilities of CO2 authorized account representative
242-6.4 Recordation of CO2 allowance allocations
242-6.5 Compliance
242-6.6 Banking
242-6.7 Account error
242-6.8 Closing of general accounts
Subpart 242-7 CO2 Allowance Transfers
242-7.1 Submission of CO2 allowance transfers
242-7.2 Recordation
242-7.3 Notification
Subpart 242-8 Monitoring and Reporting
242-8.1 General requirements
242-8.2 Initial certification and recertification procedures
242-8.3 Out-of-control periods
242-8.4 Notifications
242-8.5 Recordkeeping and reporting
242-8.6 Petitions
242-8.7 CO2 budget units that co-fire eligible biomass
242-8.8 Additional requirements to provide output data for early reduction allowances
Subpart 242-9 RESERVED
Subpart 242-10 CO2 Emissions Offset Projects
242-10.1 CO2 emissions offset purpose
242-10.2 CO2 emissions offset definitions
242-10.3 General requirements
242-10.4 Application process
242-10.5 CO2 emissions offset project standards
242-10.6 Accreditation of independent verifiers
242-10.7 Award of CO2 offset allowances
Subpart 242-1 CO2 Budget Trading Program General Provisions
242-1.1 Purpose.
This Part establishes the New York State component of the CO2 Budget Trading Program, which is designed to stabilize and then reduce anthropogenic emissions of CO2, a greenhouse gas, from CO2 budget sources in an economically efficient manner.
242-1.2 Definitions.
(a) To the extent that they are not inconsistent with the specific definitions in Subdivision (b) of this Section, the general definitions of Part 200 of this Title apply to this Part.
(b) For the purposes of this Part, the following specific definitions apply:
(1) 'Account number'. The identification number given by the department or its agent to each CO2 Allowance Tracking System account.
(2) 'Acid rain emissions limitation'. As defined in 40 CFR 72.2, a limitation on emissions of sulfur dioxide or nitrogen oxides under the Acid Rain Program under title IV of the Clean Air Act.
(3) 'Acid Rain Program'. A multi-state sulfur dioxide and nitrogen oxides air pollution control and emission reduction program established by the Administrator under title IV of the CAA and 40 CFR parts 72 through 78.
(4) 'Administrator'. Administrator means the Administrator of the United States Environmental Protection Agency or the Administrator's authorized representative.
(5) 'Allocate or allocation'. The determination by the department of the number of CO2 allowances to be recorded in the compliance account of a CO2 budget unit, an allocation set-aside account, the energy efficiency and clean energy technology account, or the general account of the sponsor of an approved CO2 emissions offset project.
(6) 'Allocation year'. A calendar year for which the department allocates or awards CO2 allowances pursuant to Subparts 242-5 and 242-10 of this Part. The allocation year of each CO2 allowance is reflected in the unique identification number given to the allowance pursuant to Subdivision 242-6.4(b) of this Part.
(7) 'Alternate CO2 authorized account representative'. For a CO2 budget source and each CO2 budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source, in accordance with Subpart 242-2 of this Part, to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program or, for a general account, the natural person who is authorized, under Subpart 242-6 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the CAIR NOx Ozone Season Trading Program, CAIR NOx Annual Trading Program, or CAIR SO2 Trading Program then, for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the alternate CAIR designated representative under such programs. If the CO2 budget source is also subject to the Acid Rain Program, then for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the alternate designated representative under the Acid Rain Program.
(8) 'Attribute'. A characteristic, claim, credit, benefit, emissions reduction, offset, allowance, allocation, howsoever characterized, denominated, measured or entitled, associated with electricity generated using a particular renewable fuel, such as its generation date, facility geographic location, unit vintage, emissions output, fuel, state program eligibility, or other characteristic that can be identified, accounted for, and tracked.
(9) 'Attribute credit'. An attribute credit represents the attributes related to one megawatt-hour of electricity generation.
(10) 'Automated data acquisition and handling system or DAHS'. That component of the continuous emissions monitoring system, or other emissions monitoring system approved for use under Subpart 242-8 of this Part, designed to interpret and convert individual output signals from pollutant concentration monitors, flow monitors, diluent gas monitors, and other component parts of the monitoring system to produce a continuous record of the measured parameters in the measurement units required by Subpart 242-8 of this Part.
(11) 'Award'. The determination by the Department of the number of CO2 allowance to be recorded in the compliance account of a CO2 budget unit for Early Reduction CO2 Allowances pursuant to Paragraph 242-5.3(c)(5) of this Part, or the determination by the Department of the number of CO2 offset allowances to be recorded in the general account of a project sponsor pursuant to 242-10.7 of this Part. Award is a type of allocation.
(12) 'Billing meter'. To qualify as a billing meter, the measurement device must be used to measure electric or thermal output for commercial billing under a contract. The facility selling the electric or thermal output must have different owners from the owners of the party purchasing the electric or thermal output.
(13) 'Boiler'. An enclosed fossil or other fuel-fired combustion device used to produce heat and to transfer heat to recirculating water, steam, or other medium.
(14) 'CAIR NOx Annual Trading Program'. A multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the Administrator in accordance with 40 CFR part 96 subparts AA through II and 40 CFR 51.123(o)(1) or (2) or established by the Administrator in accordance with subparts AA through II of 40 CFR part 97 and 40 CFR 51.123(p) and 52.35, as a means of mitigating interstate transport of fine particulates and nitrogen oxides.
(15) 'CAIR NOx Ozone Season Trading Program'. A multi-state nitrogen oxides air pollution control and emission reduction program approved and administered by the Administrator in accordance with subparts AAAA through IIII of 40 CFR part 96 and 40 CFR 51.123(aa)(1) or (2) (and [bb][1]), (bb)(2), or (dd) or established by the Administrator in accordance with subparts AAAA through IIII of 40 CFR part 97 and 40 CFR 51.123(ee) and 52.35, as a means of mitigating interstate transport of ozone and nitrogen oxides.
(16) 'CAIR SO2 Trading Program'. A multi-state sulfur dioxide air pollution control and emission reduction program approved and administered by the Administrator in accordance with subparts AAA through III of 40 CFR part 96 and 40 CFR 51.124(o)(1) or (2) or established by the Administrator in accordance with subparts AAA through III of 40 CFR part 97 and 40 CFR 51.124(r) and 52.36, as a means of mitigating interstate transport of fine particulates and sulfur dioxide.
(17) 'CO2 allowance'. A limited authorization by the department or a participating state under the CO2 Budget Trading Program to emit up to one ton of CO2 , subject to all applicable limitations contained in this Part. No provision of this regulation shall be construed to limit the authority of the department or a participating state to terminate or limit such authorization to emit. This limited authorization does not constitute a property right.
(18) 'CO2 allowance deduction or deduct CO2 allowances'. The permanent withdrawal of CO2 allowances by the Department or its agent from a CO2 Allowance Tracking System compliance account to account for the number of tons of CO2 emitted from a CO2 budget source for a control period, determined in accordance with Subpart 242-8 of this Part, or for the forfeit or retirement of CO2 allowances as provided by this Part.
(19) 'CO2 allowance price'. The price for CO2 allowances in the CO2 Budget Trading Program for a particular time period as determined by the department or its agent, calculated based on a volume-weighted average of transaction prices reported to the Department or its agent, and taking into account prices as reported publicly through reputable sources.
(20) 'CO2 allowances held or hold CO2 allowances'. The CO2 allowances recorded by the department or its agent, or submitted to the department or its agent for recordation, in accordance with Subparts 242-6 and 242-7 of this Part, in a CO2 Allowance Tracking System account.
(21) 'CO2 Allowance Tracking System'. The system by which the department or its agent records allocations, deductions, and transfers of CO2 allowances under the CO2 Budget Trading Program. The tracking system may also be used to track CO2 emissions offset projects, CO2 allowance prices and emissions from affected sources.
(22) 'CO2 Allowance Tracking System account'. An account in the CO2 Allowance Tracking System established by the department or its agent for purposes of recording the allocation, holding, transferring, or deducting of CO2 allowances.
(23) 'CO2 allowance transfer deadline'. Midnight of the March 1st occurring after the end of the relevant control period or, if that March 1st is not a business day, midnight of the first business day thereafter and is the deadline by which CO2 allowances must be submitted for recordation in a CO2 budget source's compliance account in order for the source to meet the CO2 requirements of Subdivision 242-1.5(c) of this Part for the control period immediately preceding such deadline.
(24) 'CO2 authorized account representative'. For a CO2 budget source and each CO2 budget unit at the source, the natural person who is authorized by the owners and operators of the source and all CO2 budget units at the source, in accordance with Subpart 242-2 of this Part, to represent and legally bind each owner and operator in matters pertaining to the CO2 Budget Trading Program or, for a general account, the natural person who is authorized, under Subpart 242-6 of this Part, to transfer or otherwise dispose of CO2 allowances held in the general account. If the CO2 budget source is also subject to the CAIR NOx Ozone Season Trading Program, CAIR NOx Annual Trading Program, or CAIR SO2 Trading Program then, for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the CAIR designated representative under such programs. If the CO2 budget source is also subject to the Acid Rain Program, then for a CO2 Budget Trading Program compliance account, this natural person shall be the same person as the designated representative under the Acid Rain Program.
(25) 'CO2 budget emissions limitation'. For a CO2 budget source, the tonnage equivalent, in CO2 emissions in a control period, of the CO2 allowances available for compliance deduction for the source for a control period.
(26) 'CO2 budget permit'. The portion of the legally binding permit issued by the department pursuant to Parts 201 and 621 of this Title to a CO2 budget source or CO2 budget unit which specifies all applicable CO2 Budget Trading Program requirements.
(27) 'CO2 budget source'. A source that includes one or more CO2 budget units.
(28) 'CO2 Budget Trading Program'. A multi-state CO2 air pollution control and emissions reduction program established pursuant to this Part and corresponding regulations in other states as a means of reducing emissions of CO2 from CO2 budget sources.
(29) 'CO2 Budget Trading Program base budget'. The annual amount of CO2 tons available in New York for allocation in a given allocation year, in accordance with the CO2 Budget Trading Program. CO2 offset allowances allocated to project sponsors are separate from and additional to CO2 allowances allocated from the CO2 Budget Trading Program base budget.
(30) 'CO2 budget unit'. A unit that is subject to the CO2 Budget Trading Program requirements under Section 242-1.4 of this Part.
(31) 'CO2 equivalent'. The quantity of a given greenhouse gas multiplied by its global warming potential (GWP).
(32) 'CO2 offset allowance'. A CO2 allowance that is awarded to the sponsor of a CO2 emissions offset project pursuant to Section 242-10.7 of this Part and is subject to the relevant compliance deduction limitations of Paragraph 242-6.5(a)(3) of this Part.
(33) 'Combined cycle system'. A system comprised of one or more combustion turbines, heat recovery steam generators, and steam turbines configured to improve overall efficiency of electricity generation or steam production.
(34) 'Combustion turbine'. An enclosed fossil or other fuel-fired device that is comprised of a compressor (if applicable), a combustor, and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.
(35) 'Commence commercial operation'. With regard to a unit that serves a generator, to have begun to produce steam, gas, or other heated medium used to generate electricity for sale or use, including test generation. For a unit that is a CO2 budget unit under Section 242-1.4 of this Part on the date the unit commences commercial operation, such date shall remain the unit's date of commencement of commercial operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO2 budget unit under Section 242-1.4 of this Part on the date the unit commences commercial operation, the date the unit becomes a CO2 budget unit under Section 242-1.4 of this Part shall be the unit's date of commencement of commercial operation.
(36) 'Commence operation'. To begin any mechanical, chemical, or electronic process, including, with regard to a unit, start-up of a unit's combustion chamber. For a unit that is a CO2 budget unit under Section 242-1.4 of this Part on the date of commencement of operation, such date shall remain the unit's date of commencement of operation even if the unit is subsequently modified, reconstructed, or repowered. For a unit that is not a CO2 budget unit under Section 242-1.4 of this Part on the date of commencement of operation, the date the unit becomes a CO2 budget unit under Section 242-1.4 of this Part shall be the unit's date of commencement of operation.
(37) 'Compliance account'. A CO2 Allowance Tracking System account, established by the department or its agent for a CO2 budget source under Subpart 242-6 of this Part, in which the CO2 allowance allocations for the source are initially recorded and in which are held CO2 allowances available for use by the source for a control period for the purpose of meeting the CO2 requirements of Subdivision 242-1.5(c) of this Part.
(38) 'Consumer Price Index (CPI)'. For purposes of the CO2 Budget Trading Program, the U.S. Department of Labor, Bureau of Labor Statistics unadjusted Consumer Price Index for All Urban Consumers for the U.S. city average, for All Items on the latest reference base, or if such index is no longer published, such other index as the Department determines is appropriate. The CPI for any calendar year is the 12-month average of the CPI published by the United States Department of Labor, as of the close of the 12-month period ending on August 31st of each calendar year.
(39) 'Continuous emissions monitoring system or CEMS'. The equipment required under Subpart 242-8 of this Part to sample, analyze, measure, and provide, by means of readings recorded at least once every 15 minutes (using an automated DAHS), a permanent record of stack gas volumetric flow rate, stack gas moisture content, and oxygen or carbon dioxide concentration (as applicable), in a manner consistent with 40 CFR part 75 and Subpart 242-8 of this Part. The following systems are types of continuous emissions monitoring systems required under Subpart 242-8 of this Part.
(i) A flow monitoring system, consisting of a stack flow rate monitor and an automated data acquisition and handling system and providing a permanent, continuous record of stack gas volumetric flow rate, in standard cubic feet per hour (scfh);
(ii) A nitrogen oxides emissions rate (or NOx -diluent) monitoring system, consisting of a NOx pollutant concentration monitor, a diluent gas (CO2 or O2) monitor, and an automated data acquisition and handling system and providing a permanent, continuous record of NOx concentration, in parts per million (ppm), diluent gas concentration, in percent CO2 or O2; and NOx emissions rate, in pounds per million British thermal units (lb/MMBtu);
(iii) A moisture monitoring system, as defined in 40 CFR 75.11(b)(2) and providing a permanent, continuous record of the stack gas moisture content, in percent H2O;
(iv) A carbon dioxide monitoring system, consisting of a CO2 pollutant concentration monitor (or an oxygen monitor plus suitable mathematical equations from which the CO2 concentration is derived) and an automated data acquisition and handling system and providing a permanent, continuous record of CO2 emissions, in percent CO2; and
(v) An oxygen monitoring system, consisting of an O2 concentration monitor and an automated data acquisition and handling system and providing a permanent, continuous record of O2 , in percent O2 .
(40) 'Control period'. The control period is a three-calendar-year time period, unless extended to four years upon occurrence of a stage two trigger event. The first control period is from January 1, 2009 to December 31, 2011, inclusive, provided if a stage two trigger event occurs during the first control period, then the first control period will be extended one-year to December 31, 2012, inclusive. Each subsequent sequential three-calendar-year period is a separate control period that is subject to one one-year extension upon occurrence of a stage two trigger event during the control period. In no event may a control period be longer than four calendar years.
(41) 'Current Market Price'. The volume-weighted average of (1) transaction prices reported to the Department or its agent, (2) prices as reported publicly through reputable sources, (3) CO2 allowance award price(s) from preceding CO2 Allowance Auctions, or (4) any combination of these options..
(42) 'Current Market Reserve Price (CMRP)'. The monetary amount calculated to be 80 percent of the Current Market Price.
(43) 'Eligible biomass'. Eligible biomass includes sustainably harvested woody and herbaceous fuel sources that are available on a renewable or recurring basis (excluding old-growth timber), including dedicated energy crops and trees, agricultural food and feed crop residues, aquatic plants, unadulterated wood and wood residues, animal wastes, other clean organic wastes not mixed with other solid wastes, and biogas, derived from such fuel sources. Liquid biofuels do not qualify as eligible biomass. Sustainably harvested will be determined by the department.
(44) 'Energy efficiency and clean energy technology account'. A general account established and administered by the New York State Energy Research and Development Authority (NYSERDA).
(45) 'Excess emissions'. Any tonnage of CO2 emitted by a CO2 budget source during a control period that exceeds the CO2 budget emissions limitation for the source.
(46) 'Fossil fuel'. Natural gas, petroleum, coal, or any form of solid, liquid, or gaseous fuel derived from such material.
(47) 'Fossil fuel-fired'. One of the following:
(i) With regard to a unit that commenced operation prior to January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than 50 percent of the annual heat input on a Btu basis during any year.
(ii) With regard to a unit that commences operation on or after January 1, 2005, the combustion of fossil fuel, alone or in combination with any other fuel, where the fossil fuel combusted comprises, or is projected to comprise, more than five percent of the annual heat input on a Btu basis during any year.
(48) 'General account'. A CO2 Allowance Tracking System account, established under Subpart 242-6 of this Part, that is not a compliance account.
(49) 'Global warming potential (GWP)'. A measure of the radiative efficiency (heat-absorbing ability) of a particular gas relative to that of carbon dioxide (CO2) after taking into account the decay rate of each gas (the amount removed from the atmosphere over a given number of years) relative to that of CO2 . Global warming potentials used in this Part are consistent with the values used in the Intergovernmental Panel on Climate Change, Third Assessment Report, the Scientific Basis (Working Group I), chapter 6, section 12, pages (385-391), 2001.
(50) 'Gross generation'. The electrical output (in MWe) at the terminals of the generator.
(51) 'Life-of-the-unit contractual arrangement'. A unit participation power sales agreement under which a customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and/or associated energy from any specified unit pursuant to a contract:
(i) for the life of the unit;
(ii) for a cumulative term of no less than 25 years, including contracts that permit an election for early termination; or
(iii) for a period equal to or greater than 20 years or 70 percent of the economic useful life of the unit determined as of the time the unit is built, with option rights to purchase or release some portion of the nameplate capacity and associated energy generated by the unit at the end of the period.
(52) 'Market settling period'. The first 14 months of any control period.
(53) 'Maximum design heat input'. The ability of a unit to combust a stated maximum amount of fuel per hour on a steady state basis, as determined by the physical design and physical characteristics of the unit.
(54) 'Maximum potential hourly heat input'. An hourly heat input used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use appendix D of 40 CFR part 75 to report heat input, this value should be calculated, in accordance with 40 CFR part 75, using the maximum fuel flow rate and the maximum gross calorific value. If the unit intends to use a flow monitor and a diluent gas monitor, this value should be reported, in accordance with 40 CFR part 75, using the maximum potential flow rate and either the maximum carbon dioxide concentration (in percent CO2) or the minimum oxygen concentration (in percent O2).
(55) 'Minimum Reserve Price (MRP)'. The monetary amount $1.86 in 2008 and 2009. Thereafter, the monetary amount, established as of the first day of each calendar year, derived annually from use of the following formula:
MRP(2009+n) = MRP(2009+(n-1)) × [1+(CPI(2009+(n-1)) - CPI(2009+(n-2)))/CPI(2009+(n-2))]
where:
"MRP" is the Minimum Reserve Price;
"MRP(2009)" is $1.86;
"n" is the number of years since 2009; and
"CPI" is the Consumer Price Index.
(56) 'Monitoring system'. Any monitoring system that meets the requirements of Subpart 242-8 of this Part, including a continuous emissions monitoring system, an excepted monitoring system, or an alternative monitoring system.
(57) 'Nameplate capacity'. The maximum electrical output (in MWe) that a generator can sustain over a specified period of time when not restricted by seasonal or other deratings as measured in accordance with the United States Department of Energy standards.
(58) 'Net electrical output'. All electrical output supplied to the electric power grid or gross generation minus the electrical output used on-site by the facility (in MWe). For co-generation facilities, all electrical output supplied to the electric power grid, the host site and other industrial and commercial customers, but excluding electrical output used by the co-generation facility and fuel handling and processing equipment.
(59) 'Non-CO2 budget unit'. A unit that does not meet the applicability criteria of Section 242-1.4 of this Part.
(60) 'Operator'. Any person who operates, controls, or supervises a CO2 budget unit or a CO2 budget source and shall include, but not be limited to, any holding company, utility system, or plant manager of such a unit or source.
(61) 'Owner'. Any of the following persons:
(i) any holder of any portion of the legal or equitable title in a CO2 budget unit; or
(ii) any holder of a leasehold interest in a CO2 budget unit, other than a passive lessor, or a person who has an equitable interest through such lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the CO2 budget unit; or
(iii) any purchaser of power from a CO2 budget unit under a life-of-the-unit contractual arrangement in which the purchaser controls the dispatch of the unit; or
(iv) with respect to any general account, any person who has an ownership interest with respect to the CO2 allowances held in the general account and who is subject to the binding agreement for the CO2 authorized account representative to represent that person's ownership interest with respect to the CO2 allowances.
(62) 'Participating state'. A state that has established a corresponding regulation as part of the CO2 Budget Trading Program.
63) 'Primary fuel'. Of the different fuels used, the fuel to which the highest proportion of the heat input is attributable.
(64) 'Receive or receipt of'. When referring to the department or its agent, to come into possession of a document, information, or correspondence (whether sent in writing or by authorized electronic transmission), as indicated in an official correspondence log, or by a notation made on the document, information, or correspondence, by the department or its agent in the regular course of business.
(65) 'Recordation, record, or recorded'. With regard to CO2 allowances, the movement of CO2 allowances by the department or its agent from one CO2 Allowance Tracking System account to another, for purposes of allocation, transfer, or deduction.
(66) 'Reserve Price'. The minimum acceptable price for each CO2 allowance in a specific auction. The Reserve Price is the monetary amount that is the higher of the MRP or CMRP unless the Department determines that there is not enough data to justify the calculation of a CMRP, in which case the Reserve Price will be the MRP.
(67) 'Serial number'. When referring to CO2 allowances, the unique identification number assigned to each CO2 allowance by the department or its agent under Subdivision 242-6.4(b) of this Part.
(68) 'Source'. Any governmental, institutional, commercial, or industrial structure, installation, plant, building, or facility that emits or has the potential to emit any air pollutant. A "source," including a "source" with multiple units, shall be considered a single "facility."
(69) 'Stage one threshold price'. The monetary amount, established as of the first day of each calendar year, derived annually from use of the following formula:
S1TP(2005+n) = S1TP(2005) × [1+(CPI(2005+(n-1)) - CPI (2005))/CPI(2005)]
where:
"S1TP" is the stage one threshold price;
"S1TP(2005)" is $7;
"n" is the number of years since 2005; and
"CPI" is the Consumer Price Index.
(70) 'Stage one trigger event'. The occurrence of any twelve month period that completely transpires following the market settling period and is characterized by an average CO2 allowance price that is equal to or greater than the stage one threshold price.
(71) 'Stage two threshold price'. The monetary amount, established as of the first day of each calendar year, derived annually from use of the following formula:
S2TP(2005+n) = [ S2TP(2005+(n-1)) × [[{CPI(2005+(n-1)) - CPI (2005+(n-2))}/CPI(2005+(n-2))]+0.02] + S2TP(2005+(n-1))
where:
"S2TP" is the stage two threshold price;
"S2TP(2005)" is $10; and
"n" is the number of years since 2005.
"CPI" is the Consumer Price Index.
(72) 'Stage two trigger event'. The occurrence of any twelve month period that completely transpires following the market settling period and is characterized by an average CO2 allowance price that is equal to or greater than the stage two threshold price.
(73) 'State'. A State, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, and American Samoa and includes the Commonwealth of the Northern Mariana Islands.
(74) 'Submit or serve'. To send or transmit a document, information, or correspondence to the person specified in accordance with the applicable regulation:
(i) in person;
(ii) by United States Postal Service; or
(iii) by other means of dispatch or transmission and delivery.
Compliance with any "submission," "service," or "mailing" deadline shall be determined by the date of dispatch, transmission, or mailing and not the date of receipt.
(75) 'Ton or tonnage'. Any "short ton", or 2,000 pounds. For the purpose of determining compliance with the CO2 requirements of Subdivision 242-1.5(c) of this Part, total tons for a control period shall be calculated as the sum of all recorded hourly emissions (or the tonnage equivalent of the recorded hourly emissions rates) in accordance with Subpart 242-8 of this Part, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal one ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons. A short ton is equal to 0.9072 metric tons.
(76) 'Total net output'. The total net megawatt hours, calculated utilizing the following formula:
Total net output = (EO + (TO/3.413)
Where:
"EO" is the total net electrical output from the CO2 budget unit;
"TO" is the total useful thermal energy from the CO2 budget unit in MMBtu;
"3.413" is the factor used to convert useful thermal energy from MMBtu to MWh, 3.413 MMBtu = 1 MWh.
(77) 'Twelve month period'. A period of 12 consecutive months determined on a rolling basis where a new 12 month period begins on the first day of each calendar month.
(78) 'Unit'. A fossil fuel-fired stationary boiler, combustion turbine, or combined cycle system.
(79) 'Unit operating day'. A calendar day in which a unit combusts any fuel.
(80) 'Unsold Allowance'. A CO2 allowance that has been made available for sale in an auction conducted by NYSERDA or its agent, but not sold.
(81) 'Voluntary renewable energy purchase'. A purchase of electricity from renewable energy generation or renewable energy attribute credits by a retail electricity customer on a voluntary basis. Renewable energy includes electricity generated from a source built on or after January 1, 2003 that is contained in the revised list of eligible electric generation technologies in the New York State Public Service Commission's Order on Customer-Sited Tier Implementation issued and effective June 28, 2006, attached as Appendix B in the New York State Public Service Commission's Order Regarding Retail Renewable Portfolio Standard, issued and effective September 24, 2004. The renewable energy generation or renewable energy attribute credits related to such purchases may not be used by the generator or purchaser to meet any regulatory mandate, such as a renewable portfolio standard.
242-1.3 Measurements, abbreviations and acronyms.
Measurements, abbreviations, and acronyms used in this Part are defined as follows:
(a) Btu-British thermal unit.
(b) CO2-carbon dioxide.
(c) hr-hour.
(d) lb-pound.
(e) mmBtu-million Btu.
(f) MWe-megawatt electrical.
(g) MWh-megawatt hours.
242-1.4 Applicability.
(a) 'Units'. Any unit that, at any time on or after January 1, 2005, serves an electricity generator with a nameplate capacity equal to or greater than 25 MWe shall be a CO2 budget unit, and any source that includes one or more such units shall be a CO2 budget source, subject to the requirements of this Part.
(b) 'Limited exemption for units with electrical output to the electric grid restricted by permit conditions'.
(1) 'Applicability'. Notwithstanding Subdivision (a) of this Section, any unit that, on or before December 1, 2008, applies for a enforceable permit condition restricting the supply of the unit's annual electrical output to the electric grid to less than or equal to 10 percent of the annual gross generation of the unit, and that from and after January 1, 2009 complies with the 10 percent restriction and the provisions in Paragraph (b)(3) of this Section, shall be exempt from the requirements of this Part, except for the provisions of this Section, Sections 242-1.2, 242-1.3, and 242-1.6 of this Part.
(2) 'Effective date'. The exemption under Paragraph (b)(1) of this Section shall become effective as of January 1, 2009 and remain in effect unless and until the unit loses its exemption under Subparagraph (b)(3)(v) of this Section.
(3) 'Compliance'.
(i) A unit exempt under Paragraph (b)(1) of this Section shall comply with the restriction on percentage of annual gross generation that may be supplied to the electric grid described in Paragraph (b)(1) of this Section.
(ii) A unit exempt under Paragraph (b)(1) of this Section shall report to the department the amount of annual gross generation and the amount of annual gross generation supplied to the electric grid during the year by the following February 1st.
(iii) For a period of 10 years from the date the records are created, the owners and operators of a unit exempt under Paragraph (b)(1) of this Section shall retain, at the source that includes the unit, records demonstrating that the conditions of the permit under Paragraph (b)(1) of this Section were met. The 10-year period for keeping records may be extended for cause, at any time prior to the end of the period, in writing by the department. The owners and operators bear the burden of proof that the unit met the restriction on the percentage of annual gross generation that may be supplied to the electric grid.
(iv) The owners and operators and, to the extent applicable, the CO2 authorized account representative of a unit exempt under Paragraph (b)(1) of this Section shall comply with all the requirements of this Part concerning all time periods for which the exemption is not in effect, even if such requirements arise, or must be complied with, after the exemption takes effect.
(v) On the earlier of the following dates, a unit exempt under Paragraph (b)(1) of this Section shall lose its exemption:
(a) the date on which the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in Paragraph (b)(1) of this Section is removed from the unit's permit or otherwise becomes no longer applicable in any year that commences on or after January 1, 2009; or
(b) the first date on which the unit fails to comply, or on which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on the percentage of annual gross generation that may be supplied to the electric grid described in Paragraph (b)(1) of this Section during any year that commences on or after January 1, 2009.
(vi) A unit that loses its exemption in accordance with Subparagraph (b)(3)(v) of this Section shall be subject to the requirements of this Part. For the purpose of applying permitting requirements under Subpart 242-3 of this Part, allocating allowances under Subpart 242-5 of this Part, and applying monitoring requirements under Subpart 242-8 of this Part, the unit shall be treated as commencing operation on the date the unit loses its exemption.
(4) 'Reduction in CO2 Budget Trading Program base budget'. In the event that a unit applies for and receives a permit condition that renders the unit exempt under Subdivision (b) of this Section, then the department shall reduce the CO2 Budget Trading Program base budget to remove the number of tons equal to the unit's average annual emissions from the previous three calendar years.
242-1.5 Standard requirements.
(a) 'Permit requirements'.
(1) Each CO2 budget source is required to modify its permit pursuant to Parts 201 and 621 of this Title to include all applicable requirements of the CO2 Budget Trading Program
(2) The owners and operators of each CO2 budget source required to have an operating permit pursuant to Part 201 of this Title and each CO2 budget unit required to have an operating permit pursuant to Part 201 of this Title for the source shall have a CO2 budget permit and operate the CO2 budget source and the CO2 budget unit at the source in compliance with such CO2 budget permit.
(b) 'Monitoring requirements'.
(1) The owners and operators and, to the extent applicable, the CO2 authorized account representative of each CO2 budget source and each CO2 budget unit at the source shall comply with the monitoring requirements of Subpart 242-8 of this Part.
(2) The emissions measurements recorded and reported in accordance with Subpart 242-8 of this Part shall be used to determine compliance by the unit with the CO2 requirements under Subdivision (c) of this Section.
(c) 'CO2 requirements'.
(1) The owners and operators of each CO2 budget source and each CO2 budget unit at the source shall hold CO2 allowances available for compliance deductions under Section 242-6.5 of this Part, as of the CO2 allowance transfer deadline, in the source's compliance account in an amount not less than the total CO2 emissions for the control period from all CO2 budget units at the source, as determined in accordance with Subparts 242-6 and 242-8 of this Part.
(2) Each ton of CO2 emitted in excess of the CO2 budget emissions limitation shall constitute a separate violation of this Part and applicable state law.
(3) A CO2 budget unit shall be subject to the requirements under Paragraph (c)(1) of this Section starting on the later, of January 1, 2009 or the date on which the unit commences operation.
(4) CO2 allowances shall be held in, deducted from, or transferred among CO2 Allowance Tracking System accounts in accordance with Subparts 242-5, 242-6, and 242-7, and Section 242-10.7 of this Part.
(5) A CO2 allowance shall not be deducted, in order to comply with the requirements under Paragraph (c)(1) of this Section, for a control period that ends prior to the allocation year for which the CO2 allowance was allocated. A CO2 offset allowance shall not be deducted, in order to comply with the requirements under Paragraph (c)(1) of this Section, beyond the applicable percent limitations set out in Paragraph 242-6.5(a)(3) of this Part.
(6) A CO2 allowance under the CO2 Budget Trading Program is a limited authorization by the Department or a participating state to emit one ton of CO2 in accordance with the CO2 Budget Trading Program. No provision of the CO2 Budget Trading Program, the CO2 budget permit application, or the CO2 budget permit or any provision of law shall be construed to limit the authority of the Department or a participating state to terminate or limit such authorization.
(7) A CO2 allowance under the CO2 Budget Trading Program does not constitute a property right.
(d) 'Excess emissions requirements'. The owners and operators of a CO2 budget source that has excess emissions in any control period shall:
(1) forfeit the CO2 allowances required for deduction under Paragraph 242-6.5(d)(1) of this Part, provided CO2 offset allowances may not be used to cover any part of such excess emissions; and
(2) pay any fine, penalty, or assessment or comply with any other remedy imposed under Paragraph 242-6.5(d)(2) of this Part.
(e) 'Recordkeeping and reporting requirements'.
(1) Unless otherwise provided, the owners and operators of the CO2 budget source and each CO2 budget unit at the source shall keep on site at the source each of the following documents for a period of 10 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 10 years, in writing by the department.
(i) The account certificate of representation for the CO2 authorized account representative for the source and each CO2 budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with Section 242-2.4 of this Part, provided that the certificate and documents shall be retained on site at the source beyond such 10-year period until such documents are superseded because of the submission of a new account certificate of representation.
(ii) All emissions monitoring information, in accordance with Subpart 242-8 of this Part and 40 CFR 75.57.
(iii) Copies of all reports, compliance certifications, and other submissions and all records made or required under the CO2 Budget Trading Program.
(iv) Copies of all documents used to complete a CO2 budget permit application and any other submission under the CO2 Budget Trading Program or to demonstrate compliance with the requirements of the CO2 Budget Trading Program.
(2) The CO2 authorized account representative of a CO2 budget source and each CO2 budget unit at the source shall submit the reports and compliance certifications required under the CO2 Budget Trading Program, including those under Subpart 242-4 of this Part.
(f) 'Liability'.
(1) No permit revision shall excuse any violation of the requirements of the CO2 Budget Trading Program that occurs prior to the date that the revision takes effect.
(2) Any provision of the CO2 Budget Trading Program that applies to a CO2 budget source (including a provision applicable to the CO2 authorized account representative of a CO2 budget source) shall also apply to the owners and operators of such source and of the CO2 budget units at the source.
(3) Any provision of the CO2 Budget Trading Program that applies to a CO2 budget unit (including a provision applicable to the CO2 authorized account representative of a CO2 budget unit) shall also apply to the owners and operators of such unit.
(g) 'Effect on other authorities'.
(1) No provision of the CO2 Budget Trading Program, a CO2 budget permit application, or a CO2 budget permit, shall be construed as exempting or excluding the owners and operators and, to the extent applicable, the CO2 authorized account representative of a CO2 budget source or CO2 budget unit from compliance with any other provisions of applicable State and federal law and regulations.
242-1.6 Computation of time.
(a) Unless otherwise stated, any time period scheduled, under the CO2 Budget Trading Program, to begin on the occurrence of an act or event shall begin on the day the act or event occurs.
(b) Unless otherwise stated, any time period scheduled, under the CO2 Budget Trading Program, to begin before the occurrence of an act or event shall be computed so that the period ends the day before the act or event occurs.
(c) Unless otherwise stated, if the final day of any time period, under the CO2 Budget Trading Program, falls on a weekend or a State or Federal holiday, the time period shall be extended to the next business day.
242-1.7 Severability.
If any provision of this Part, or its application to any particular person or circumstances, is held invalid, the remainder of this Part, and the application thereof to other persons or circumstances, shall not be affected thereby.
Subpart 242-2 CO2 Authorized Account Representative for CO2 Budget Sources
242-2.1 Authorization and responsibilities of the CO2 authorized account representative.
(a) Except as provided under Section 242-2.2 of this Part, each CO2 budget source, including all CO2 budget units at the source, shall have one and only one CO2 authorized account representative, with regard to all matters under the CO2 Budget Trading Program concerning the source or any CO2 budget unit at the source.
(b) The CO2 authorized account representative of the CO2 budget source shall be selected by an agreement binding on the owners and operators of the source and all CO2 budget units at the source.
(c) Upon receipt by the department or its agent of a complete account certificate of representation under Section 242-2.4 of this Part, the CO2 authorized account representative of the source shall represent and, by his or her representations, actions, inactions, or submissions, legally bind each owner and operator of the CO2 budget source represented and each CO2 budget unit at the source in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account representative and such owners and operators. The owners and operators shall be bound by any decision or order issued to the CO2 authorized account representative by the department or a court regarding the source or unit.
(d) No CO2 budget permit shall be issued, and no CO2 Allowance Tracking System account shall be established for a CO2 budget source, until the department or its agent has received a complete account certificate of representation under Section 242-2.4 of this Part for a CO2 authorized account representative of the source and the CO2 budget units at the source.
(e) Each submission under the CO2 Budget Trading Program shall be submitted, signed, and certified by the CO2 authorized account representative for each CO2 budget source on behalf of which the submission is made. Each such submission shall include the following certification statement by the CO2 authorized account representative: "I am authorized to make this submission on behalf of the owners and operators of the CO2 budget sources or CO2 budget units for which the submission is made. I certify under penalty of law that I have personally examined, and am familiar with, the statements and information submitted in this document and all its attachments. Based on my inquiry of those individuals with primary responsibility for obtaining the information, I certify that the statements and information are to the best of my knowledge and belief true, accurate, and complete. I am aware that there are significant penalties for submitting false statements and information or omitting required statements and information, including the possibility of fine or imprisonment."
(f) The department or its agent will accept or act on a submission made on behalf of owners or operators of a CO2 budget source or a CO2 budget unit only if the submission has been made, signed, and certified in accordance with subdivision (e) of this section.
242-2.2 Alternate CO2 authorized account representative.
(a) An account certificate of representation may designate one and only one alternate CO2 authorized account representative who may act on behalf of the CO2 authorized account representative. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account representative to act in lieu of the CO2 authorized account representative.
(b) Upon receipt by the department or its agent of a complete account certificate of representation under Section 242-2.4 of this Part, any representation, action, inaction, or submission by the alternate CO2 authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CO2 authorized account representative.
(c) Except in this section and Subdivision 242-2.1(a), Sections 242-2.3, 242-2.4, and 242-6.2 of this Part, whenever the term "CO2 authorized account representative" is used in this Part, the term shall be construed to include the alternate CO2 authorized account representative.
242-2.3 Changing the CO2 authorized account representative and the alternate CO2 authorized account representative; changes in the owners and operators.
(a) 'Changing the CO2 authorized account representative'. The CO2 authorized account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under Section 242-2.4 of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or alternate CO2 authorized account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new CO2 authorized account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.
(b) 'Changing the alternate CO2 authorized account representative'. The alternate CO2 authorized account representative may be changed at any time upon receipt by the department or its agent of a superseding complete account certificate of representation under Section 242-2.4 of this Part. Notwithstanding any such change, all representations, actions, inactions, and submissions by the previous CO2 authorized account representative or alternate CO2 authorized account representative prior to the time and date when the department or its agent receives the superseding account certificate of representation shall be binding on the new alternate CO2 authorized account representative and the owners and operators of the CO2 budget source and the CO2 budget units at the source.
(c) 'Changes in the owners and operators'.
(1) In the event a new owner or operator of a CO2 budget source or a CO2 budget unit is not included in the list of owners and operators submitted in the account certificate of representation, such new owner or operator shall be deemed to be subject to and bound by the account certificate of representation, the representations, actions, inactions, and submissions of the CO2 authorized account representative and any alternate CO2 authorized account representative of the source or unit, and the decisions, orders, actions, and inactions of the department, as if the new owner or operator were included in such list.
(2) Within 30 days following any change in the owners and operators of a CO2 budget source or a CO2 budget unit, including the addition of a new owner or operator, the CO2 authorized account representative or alternate CO2 authorized account representative shall submit a revision to the account certificate of representation amending the list of owners and operators to include the change.
242-2.4 Account certificate of representation.
(a) A complete account certificate of representation for a CO2 authorized account representative or an alternate CO2 authorized account representative shall include the following elements in a format prescribed by the department or its agent:
(1) identification of the CO2 budget source and each CO2 budget unit at the source for which the account certificate of representation is submitted;
(2) the name, address, e-mail address, telephone number, and facsimile transmission number of the CO2 authorized account representative and any alternate CO2 authorized account representative;
(3) a list of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source;
(4) the following certification statement by the CO2 authorized account representative and any alternate CO2 authorized account representative: "I certify that I was selected as the CO2 authorized account representative or alternate CO2 authorized account representative, as applicable, by an agreement binding on the owners and operators of the CO2 budget source and each CO2 budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of the owners and operators of the CO2 budget source and of each CO2 budget unit at the source and that each such owner and operator shall be fully bound by my representations, actions, inactions, or submissions and by any decision or order issued to me by the department or a court regarding the source or unit."; and
(5) the signature of the CO2 authorized account representative and any alternate CO2 authorized account representative and the dates signed.
(b) Unless otherwise required by the department or its agent, documents of agreement referred to in the account certificate of representation shall not be submitted to the department or its agent. Neither the department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
242-2.5 Objections concerning the CO2 authorized account representative.
(a) Once a complete account certificate of representation under Section 242-2.4 of this Part has been submitted and received, the department and its agent will rely on the account certificate of representation unless and until the department or its agent receives a superseding complete account certificate of representation under Section 242-2.4 of this Part.
(b) Except as provided in Subdivision 242-2.3(a) or (b) of this Part, no objection or other communication submitted to the department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative shall affect any representation, action, inaction, or submission of the CO2 authorized account representative or the finality of any decision or order by the department or its agent under the CO2 Budget Trading Program.
(c) Neither the department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of any CO2 authorized account representative, including private legal disputes concerning the proceeds of CO2 allowance transfers.
242-2.6 Delegation by CO2 authorized account representative and alternate CO2 authorized account representative
(a) A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent under this Part.
(b) An alternate CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent under this Part.
(c) In order to delegate authority to make an electronic submission to the department or its agent in accordance with Subdivision (a) and (b) of this Section, the CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, must submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:
(1) The name, address, e-mail address, telephone number, and facsimile transmission number of such CO2 authorized account representative or alternate CO2 authorized account representative;
(2) The name, address, e-mail address, telephone number and facsimile transmission number of each such natural person, herein referred to as the "electronic submission agent";
(3) For each such natural person, a list of the type of electronic submissions under Subdivision (a) or (b) of this Section for which authority is delegated to him or her; and
(4) The following certification statements by such CO2 authorized account representative or alternate CO2 authorized account representative:
(i) "I agree that any electronic submission to the department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under Subdivision (d) of this Section shall be deemed to be an electronic submission by me."
(ii) "Until this notice of delegation is superseded by another notice of delegation under Subdivision (d) of this Section, I agree to maintain an e-mail account and to notify the department or its agent immediately of any change in my e-mail address unless all delegation authority by me under Section 242-2.6 is terminated."
(d) A notice of delegation submitted under Subdivision (c) of this Section shall be effective, with regard to the CO2 authorized account representative or alternate CO2 authorized account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.
(e) Any electronic submission covered by the certification in Subparagraph (c)(4)(i) of this Section and made in accordance with a notice of delegation effective under Subdivision (d) of this Section shall be deemed to be an electronic submission by the CO2 authorized account representative or alternate CO2 authorized account representative submitting such notice of delegation.
Subpart 242-3 Permits
242-3.1 General CO2 budget permit requirements.
(a) Each CO2 budget source must have a permit issued by the department pursuant to Parts 201 and 621 of this Title.
(b) Each CO2 budget permit shall contain all applicable CO2 Budget Trading Program requirements and which shall be a complete and distinguishable portion of the permit under Subdivision (a) of this Section.
242-3.2 Submission of CO2 budget permit applications.
For any CO2 budget source, the CO2 authorized account representative shall submit a complete application for a facility operating permit or a modification to an existing facility operating permit in accordance with the provisions of Parts 201 and 621 of this Title and the requirements under Section 242-3.3 of this Part.
242-3.3 Information requirements for CO2 budget permit applications.
(a) A complete CO2 budget permit application shall include the following elements concerning the CO2 budget source for which the application is submitted, in a format prescribed by the department:
(1) The information required in Part 201 of this Title shall be included in the CO2 Budget permit application by the owner and/or operator of the CO2 budget source. Applications for modifications and revisions generally need only supply information related to the proposed change, provided such information includes a complete set of data on any emissions units affected by the modification and any facility level information required in forms developed by the department to properly ascertain the nature and extent of the modification.
(2) identification of the CO2 budget source, including plant name and the ORIS (Office of Regulatory Information Systems) or facility code assigned to the source by the Energy Information Administration of the United States Department of Energy, if applicable;
(3) identification of each CO2 budget unit at the CO2 budget source; and
Subpart 242-4 Compliance Certification
242-4.1 Compliance certification report.
(a) 'Applicability and deadline'. For each control period in which a CO2 budget source is subject to the CO2 requirements of Subdivision 242-1.5(c) of this Part, the CO2 authorized account representative of the source shall submit to the department by the March 1st following the relevant control period, a compliance certification report.
(b) 'Contents of report'. The CO2 authorized account representative shall include in the compliance certification report under subdivision (a) of this section the following elements, in a format prescribed by the department:
(1) identification of the source and each CO2 budget unit at the source;
(2) at the CO2 authorized account representative's option, the serial numbers of the CO2 allowances that are to be deducted from the source's compliance account under Section 242-6.5 of this Part for the control period, including the serial numbers of any CO2 offset allowances that are to be deducted subject to the limitations of Paragraph 242-6.5(a)(3) of this Part; and
(3) the compliance certification under Subdivision (c) of this Section.
(c) 'Compliance certification'. In the compliance certification report under Subdivision (a) of this Section, the CO2 authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the CO2 budget units at the source in compliance with the CO2 Budget Trading Program, whether the source and each CO2 budget unit at the source for which the compliance certification is submitted was operated during the calendar years covered by the report in compliance with the requirements of the CO2 Budget Trading Program , including:
(1) whether the source was operated in compliance with the CO2 requirements of Subdivision 242-1.5(c) of this Part;
(2) whether the monitoring plan applicable to each unit at the source has been maintained to reflect the actual operation and monitoring of the unit, and contains all information necessary to attribute CO2 emissions to the unit, in accordance with Subpart 242-8 of this Part;
(3) whether all the CO2 emissions from the units at the source were monitored or accounted for through the missing data procedures and reported in the quarterly monitoring reports, including whether conditional data were reported in the quarterly reports in accordance with Subpart 242-8 of this Part. If conditional data were reported, the owner or operator shall indicate whether the status of all conditional data has been resolved and all necessary quarterly report resubmissions have been made;
(4) whether the facts that form the basis for certification under Subpart 242-8 of this Part of each monitor at each unit at the source, or for using an excepted monitoring method or alternative monitoring method approved under Subpart 242-8 of this Part, if any, have changed; and
(5) if a change is required to be reported under Paragraph (c)(4) of this Section, specify the nature of the change, the reason for the change, when the change occurred, and how the unit's compliance status was determined subsequent to the change, including what method was used to determine emissions when a change mandated the need for monitor recertification.
242-4.2 Department's action on compliance certifications.
(a) The department or its agent may review and conduct independent audits concerning any compliance certification or any other submission under the CO2 Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.
(b) The department or its agent may deduct CO2 allowances from or transfer CO2 allowances to a source's compliance account based on the information in the compliance certifications or other submissions, as adjusted under subdivision (a) of this section.
Subpart 242-5 CO2 Allowance Allocations
242-5.1 CO2 Budget Trading Program base budget.
(a) Except as may be modified in accordance with Paragraph 242-1.4(b)(4) and Subdivisions 242-5.3(c) and (d) of this Part, the CO2 Budget Trading Program base budget is 64,310,805 tons, annually for the 2009 through 2014 allocation years.
(b) Except as may be modified in accordance with Paragraph 242-1.4(b)(4) and Subdivisions 242-5.3(c) and (d) of this Part, the CO2 Budget Trading Program base budget is 62,703,035 tons, for the 2015 allocation year.
(c) Except as may be modified in accordance with Paragraph 242-1.4(b)(4) and Subdivisions 242-5.3(c) and (d) of this Part, the CO2 Budget Trading Program base budget is 61,095,265 tons, for the 2016 allocation year.
(d) Except as may be modified in accordance with Paragraph 242-1.4(b)(4) and Subdivisions 242-5.3(c) and (d) of this Part, the CO2 Budget Trading Program base budget is 59,487,495 tons for the 2017 allocation year.
(e) Except as may be modified in accordance with Paragraph 242-1.4(b)(4) and Subdivisions 242-5.3(c) and (d) of this Part, the CO2 Budget Trading Program base budget is 57,879,725 tons, annually for the 2018 allocation year and each succeeding allocation year.
242-5.2 RESERVED
242-5.3 CO2 allowance allocations.
(a) 'Energy efficiency and clean energy technology account'. The department will allocate the CO2 Budget Trading Program base budget to best achieve the emissions reduction goals of the CO2 Budget Trading Program by promoting or rewarding investments in energy efficiency, renewable or non-carbon-emitting technologies, and/or innovative carbon emissions abatement technologies with significant carbon reduction potential.
(1) NYSERDA will establish and administer the energy efficiency and clean energy technology account pursuant to 21 NYCRR Part 507.
(2) The department will allocate most of the CO2 Budget Trading Program base budget to the energy efficiency and clean energy technology account.
(3) NYSERDA will administer the energy efficiency and clean technology account so that allowances will be sold in a transparent allowance auction or auctions. The proceeds of the auction or auctions will be used to promote the purposes of the energy efficiency and clean technology account and for administrative costs associated with the CO2 Budget Trading Program. The auction will be carried out to achieve the following objectives: achieve fully transparent and efficient pricing of allowances; promote a liquid allowance market by making entry and trading as easy and low-cost as possible; be open to participation by the categories of bidders determined by NYSERDA or its designee in consultation with the Auction Advisory Committee which meet the minimum financial requirements; monitor for and guard against the exercise of market power and market manipulation; be held as frequently as is needed to achieve design objectives; avoid interference with existing allowance markets; align well with wholesale energy and capacity markets; and be designed to not act as a barrier to efficient investment in relatively clean existing or new electricity generating sources.
(i) NYSERDA, or its agent, will not be obligated to sell any CO2 allowances for less than the Reserve Price.
(ii) All unsold allowances of an allocation year will be made available for sale in the succeeding auction of that allowance's allocation year, or control period if its allocation year has ended, in which a reserve price greater than the MRP is in effect. At the end of each control period, the Department may retire any unsold allowances from the concluding control period or offer them for sale in a subsequent auction(s) during the subsequent control period(s) in which a reserve price greater than the MRP is in effect.
(b) 'Early reduction CO2 allowances'. The department may award early reduction CO2 allowances (ERAs) to a CO2 budget source for reductions in the CO2 budget source's CO2 emissions (inclusive of all emissions from CO2 budget units at the CO2 budget source) that are achieved by the source during the early reduction period (2006, 2007, and 2008), subject to the requirements of this Subdivision. Total facility shutdowns or reductions that result from enforcement actions shall not be eligible for ERAs.
(1) The CO2 budget source must submit its application for the award of ERAs by May 1, 2009.
(2) The CO2 budget source must demonstrate that all CO2 budget units that existed at the source during the baseline period (2003, 2004, and 2005) are included as CO2 budget units for the early reduction period. New CO2 budget units added at the CO2 budget source must also be accounted for during the early reduction period.
(3) The department will calculate the number of ERAs to be awarded to a particular CO2 budget source for the early reduction period pursuant to the following methodology:
(i) If total heat input to all CO2 budget units at the CO2 budget source during the early reduction period is less than or equal to the total heat input to all the CO2 budget units at the CO2 budget source during the baseline period, then:
(a) ERAs shall be calculated as follows:
ERAs = ((AEERBASELINE - AEERERP) × (EOERP +(TOERP/3.413))/2000
where:
"AEERBASELINE" is the average CO2 emissions rate resulting from net electrical output and useful thermal energy for all of the CO2 budget units at the CO2 budget source during the baseline period (in pounds of CO2/MWhth+e);
"AEERERP" is the average CO2 emissions rate resulting from net electrical output and useful thermal output for all of the CO2 budget units at the CO2 budget source during the early reduction period (in pounds of CO2/ MWhth+e);
"MWhth+e" is thermal plus electrical megawatt-hours;
"EOERP" is the total net electrical output from all CO2 budget units at the CO2 budget source during the early reduction period (in MWhe);
"MWhe" is electrical megawatt-hours;
"TOERP" is the total useful thermal energy from all CO2 budget units at the CO2 budget source during the early reduction period (in MMBtu);
(b) For the purposes of this section, useful thermal energy will be converted to units of MWh by the conversion factor 1 MWh = 3.413 MMBtu.
(c) For the purposes of this section, output shall be monitored in accordance with Subpart 242-8 of this Part.
(ii) If total heat input to all CO2 budget units at the CO2 budget source during the early reduction period is greater than or equal to the total heat input to all the CO2 budget units at the CO2 budget source during the baseline period, then:
ERAs = EBASELINE - EERP
where:
"EBASELINE" are total CO2 emissions from the all of the CO2 budget units at the CO2 budget source during the baseline period (in tons); and
"EERP" are total CO2 emissions from the all of the CO2 budget units at the CO2 budget source during the early reduction period (in tons).
(4) The CO2 budget source must demonstrate that the data submitted in support of the early reduction application was recorded in compliance with the requirements of Subpart 242-8 of this Part for all of the baseline years and the early reduction years for which the CO2 budget source was required to report CO2 data pursuant to 40 CFR part 75. A CO2 budget source that was not required to submit CO2 data pursuant to 40 CFR part 75 for any of the years contained in the baseline period or early reduction period may petition the department as part of its application under this Subpart for the use of an alternative data source or sources for the calculation of early reduction allowances.
(5) Once the department confirms a CO2 budget source's early reductions of CO2 emissions, it shall award the ERAs to the CO2 budget source's compliance account by December 31, 2009.
(c) 'Voluntary renewable energy market set-aside allocation.' The department shall allocate 700,000 tons to the voluntary renewable energy market set-aside account from the CO2 Budget Trading Program annual base budget set forth in Section 242-5.1 of this Part, as applicable. The department shall administer the voluntary renewable energy set-aside account in accordance with the following procedures.
(1) The department will open and manage a general account for the voluntary renewable energy market set-aside account for each allocation year.
(2) The sponsor for a voluntary renewable energy purchase must establish a general account under Subdivision 242-6.2(b) of this Part. All submissions to the department required for the retirement of an allowance from the voluntary renewable energy market set-aside account under this section must be from the CO2 authorized account representative for the general account, herein referred to as the "VREP applicant."
(3) The VREP applicant may submit a written request to the department to retire a specified number of CO2 allowances in the voluntary renewable energy market set-aside account. This request must be submitted by the March 1st, immediately following the allocation year for which it is being made and must include information to assure that the voluntary renewable energy purchase demonstrates accreditable CO2 emissions reductions or avoidance during the control period in accordance with department measurement and verification protocol. That request shall contain the following information.
(i) Data documenting purchases of voluntary renewable energy that meet the requirements of this subdivision. Such data must be from reputable sources, which may include retail electricity providers, organizations that certify renewable energy products, and other parties as determined by the department. To be considered, data must be verifiable and document the following for voluntary renewable energy purchases:
(a) Documentation of voluntary renewable energy or renewable energy attribute credit purchases by retail customers, by customer class, in the State during the control period immediately preceding the application date.
(b) Documentation that the renewable energy or renewable energy attributes related to voluntary renewable energy or renewable energy attribute credit sales were procured by the retail provider.
(c) Time period when the retail purchase(s) was made.
(d) State where the electricity was generated or the renewable energy attribute credit was created, including documentation of facility name, unique generator identification number, and fuel type.
(e) Time period when the electricity was generated or the renewable energy attribute credit was created.
(ii) By the October 31st following the March 1st application deadline established in paragraph (d)(2) of this subdivision, the department shall determine the actual MWh of voluntary renewable energy market purchases that occurred during the allocation year. The department shall retire CO2 allowances in the voluntary renewable energy set-aside account in an amount up to the number of tons of CO2 represented by actual voluntary renewable energy market purchases, based on actual MWh purchases demonstrated by each project sponsor as follows:
CO2 tons = MP × EF
where:
CO2 tons, rounded down to the nearest whole ton, is the number of allowances to be placed in the retirement account.
MP is the MWh of voluntary renewable energy purchased in the State during the control period that meets the requirements of this subdivision.
EF is the CO2 emissions factor for the control area where the electricity represented by the sale was generated.
(4) If more than one VREP applicant sponsor of a voluntary renewable purchase requests the retirement of CO2 allowances and the number of CO2 allowances that are subject to the department approved requests exceeds the number of CO2 allowances in the relevant voluntary renewable energy market set-aside account, the department will retire CO2 allowances from the account for the VREP applicants in the order in which the VREP applicants submitted approvable retirement requests. For purposes of this paragraph, requests will be considered simultaneous if they are made in the same month. Should approvable retirement requests in excess of the allocation to the relevant voluntary renewable energy market set-aside account be submitted in the same month by different VREP applicants, the department will retire CO2 allowances for those VREP applicants on a basis proportional to the number of CO2 allowances requested by each VREP applicant.
(5) No CO2 allowances will be retired for early implementation of projects. VREP applicants may receive CO2 allowance retirements only for projects achieving accreditable CO2 emission reductions or avoidances during control periods starting on or after January 1, 2009.
(6) 'Flow back of undistributed CO2 allowances from the voluntary renewable energy market set-aside account'. After making deductions for compliance under Subdivisions 242-6.5(b) and (d) of this Part for a control period and retirements for VREP applicants under this subdivision, the department will transfer any remaining CO2 allowances from the voluntary renewable energy market set-aside account to the energy efficiency and clean energy technology account.
(d) 'Long term contract set-aside allocation.' The department shall allocate 1,500,000 tons to the long term contract set-aside account from the CO2 Budget Trading Program annual base budget set forth in Section 242-5.1 of this Part, as applicable. The department shall administer the long term contract set-aside account in accordance with the following procedures.
(1) The department will open and manage a general account for the long term contract set-aside account for each allocation year.
(2) The sponsor for a long term contract hardship demonstration must establish a compliance account under Subdivision 242-6.2(a) of this Part. All submissions to the department required for the reward of allowances from the long term contract set-aside account under this section must be from the CO2 authorized account representative for the compliance account, herein referred to as the "LTC applicant."
(3) The LTC applicant may submit a written request to the department for the reward of a specified number of CO2 allowances in the long term contract set-aside account. This request must be submitted by the December 1st, immediately preceding the allocation year for which it is being made and must include information to assure that the long term contract hardship demonstration documents to the department's satisfaction that the long term contract was entered into prior to March 2006, that purchasing allowances at auction or in the secondary allowance market leads to financial hardship under the conditions of the long term contract, and that the each CO2 budget unit's, at the CO2 budget source's, covered by the long term contract, primary fuel is natural gas or the CO2 budget source's emission rate is no higher than 1100 lbs/MWhr. . That request shall contain, at a minimum, the following information.
(i) A copy of the long term contract and explanation that the LTC applicant is unable to:
(a) pass the cost of allowances on to the purchasing party, or
(b) renegotiate the terms of the contract;
(ii) Financial statements from each of the previous five years that clearly demonstrate the revenues and expenses of the LTC applicant's budget source;
(iii) Fuel, total net output and emissions data from the previous three year period;
(iv) The portion of emissions from the CO2 budget unit or units covered by the long term contract during the upcoming year;
(v) Costs associated with the CO2 Budget Trading Program compared to all other costs associated with the operation of the CO2 budget unit or units; and
(vi) A demonstration that the LTC applicant will suffer losses in excess of the value of allowances sought, supported by projected costs and revenues for the allocation year for which the LTC application pertains.
(4) the department will determine the number of CO2 allowances to be allocated to each applicant in accordance with the following procedures:
LTC Allowances = (((LTCer) × (TO))/2000) - RLTCA;
where:
"LTC Allowances" are the result of the calculation;
"LTCer" is the applicable emission rate
"TO" is total net output from the LTC facility;
"RLTCA" is the number of allowances remaining in an LTC applicant's compliance account
(i) For the purposes of this subdivision, total net output shall be the greatest total net output experienced by the unit for any single calendar year among the three calendar years, for which data is submitted, proceeding the date by which the department must make the CO2 allocations pursuant to this subdivision.
(ii) For the purposes of this subdivision, the "LTCer" will be the lesser of the actual emission rate included in the application and 1100 lbs/MWhr.
(iii) For the purposes of this Subdivision, there will be no "RLTCA" for the first application, but for each subsequent application, the department will determine the "RLTCA" to be the difference between the allowances in the LTC applicant's compliance account and actual emissions for that allocation year.
(5) Allowances will be allocated to the LTC applicant's compliance account.
(6) Allowances allocated pursuant to this Subdivision must only be used for compliance with the CO2 budget emissions limitation for the source. The sale or transfer of allowances from the LTC applicant's compliance account will be considered a violation of this Subdivision.
(7) If more than one LTC applicant requests the award of CO2 allowances and the number of CO2 allowances that are subject to the department approved requests exceeds the number of CO2 allowances in the relevant long term contract set-side account, the department will award CO2 allowances for those LTC applicants on a basis proportional to the number of CO2 allowances requested by each LTC applicant.
(8) LTC applicants may receive CO2 allowance awards only for projected hardships during control periods starting on or after January 1, 2009.
(9) 'Flow back of undistributed CO2 allowances from the long term contract set-aside account'. After making deductions for compliance under Subdivisions 242-6.5(b) and (d) of this Part for a control period and awards to LTC applicants under this subdivision, the department will transfer any remaining CO2 allowances from the long term contract set-aside account to the energy efficiency and clean energy technology account.
Subpart 242-6 CO2 Allowance Tracking System
242-6.1 CO2 Allowance Tracking System accounts.
(a) 'Nature and function of compliance accounts'. Consistent with Subdivision 242-6.2(a) of this Part, the department or its agent will establish one compliance account for each CO2 budget source. Deductions or transfers of CO2 allowances pursuant to Sections 242-4.2, 242-6.5, 242-6.7, or Subpart 242-7 of this Part will be recorded in the compliance accounts in accordance with this Subpart.
(b) 'Nature and function of general accounts'. Consistent with Subdivision 242-6.2(b) of this Part, the department or its agent will establish, upon request, a general account for any person. Transfers of CO2 allowances pursuant to Subpart 242-7 of this Part will be recorded in the general account in accordance with this Subpart.
242-6.2 Establishment of accounts.
(a) 'Compliance accounts'. Upon receipt of a complete account certificate of representation under Section 242-2.4 of this Part, the department or its agent will establish a compliance account for each CO2 budget source for which the account certificate of representation was submitted.
(b) 'General accounts'.
(1) 'Application for general account'. Any person may apply to open a general account for the purpose of holding and transferring CO2 allowances. An application for a general account may designate one and only one CO2 authorized account representative and one and only one alternate CO2 authorized account representative who may act on behalf of the CO2 authorized account representative. The agreement by which the alternate CO2 authorized account representative is selected shall include a procedure for authorizing the alternate CO2 authorized account representative to act in lieu of the CO2 authorized account representative. A complete application for a general account shall be submitted to the department or its agent and shall include the following elements in a format prescribed by the department or its agent:
(i) name, address, e-mail address, telephone number, and facsimile transmission number of the CO2 authorized account representative and any alternate CO2 authorized account representative;
(ii) at the option of the CO2 authorized account representative, organization name and type of organization;
(iii) a list of all persons subject to a binding agreement for the CO2 authorized account representative or any alternate CO2 authorized account representative to represent their ownership interest with respect to the CO2 allowances held in the general account;
(iv) the following certification statement by the CO2 authorized account representative and any alternate CO2 authorized account representative: "I certify that I was selected as the CO2 authorized account representative or the CO2 alternate authorized account representative, as applicable, by an agreement that is binding on all persons who have an ownership interest with respect to CO2 allowances held in the general account. I certify that I have all the necessary authority to carry out my duties and responsibilities under the CO2 Budget Trading Program on behalf of 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 department or its agent or a court regarding the general account.";
(v) the signature of the CO2 authorized account representative and any alternate CO2 authorized account representative and the dates signed; and
(vi) unless otherwise required by the department or its agent, documents of agreement referred to in the application for a general account shall not be submitted to the department or its agent. Neither the department nor its agent shall be under any obligation to review or evaluate the sufficiency of such documents, if submitted.
(2) 'Authorization of CO2 authorized account representative'.
(i) Upon receipt by the department or its agent of a complete application for a general account under Paragraph (b)(1) of this Section:
(a) The department or its agent will establish a general account for the person or persons for whom the application is submitted.
(b) The CO2 authorized account representative and any alternate CO2 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 CO2 allowances held in the general account in all matters pertaining to the CO2 Budget Trading Program, notwithstanding any agreement between the CO2 authorized account representative or any alternate CO2 authorized account representative and such person. Any such person shall be bound by any order or decision issued to the CO2 authorized account representative or any alternate CO2 authorized account representative by the department or its agent or a court regarding the general account.
(c) Any representation, action, inaction, or submission by any alternate CO2 authorized account representative shall be deemed to be a representation, action, inaction, or submission by the CO2 authorized account representative.
(ii) Each submission concerning the general account shall be submitted, signed, and certified by the CO2 authorized account representative or any alternate CO2 authorized account representative for the persons having an ownership interest with respect to CO2 allowances held in the general account. Each such submission shall include the following certification statement by the CO2 authorized account representative or any alternate CO2 authorized account representative: "I am authorized to make this submission on behalf of the persons having an ownership interest with respect to the CO2 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 department or its agent 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 CO2 authorized account representative and alternate CO2 authorized account representative; changes in persons with ownership interest'.
(i) The CO2 authorized account representative for a general account may be changed at any time upon receipt by the department or its agent 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 CO2 authorized account representative, or the previous alternate CO2 authorized account representative, prior to the time and date when the department or its agent receives the superseding application for a general account shall be binding on the new CO2 authorized account representative and the persons with an ownership interest with respect to the CO2 allowances in the general account.
(ii) The alternate CO2 authorized account representative for a general account may be changed at any time upon receipt by the department or its agent 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 CO2 authorized account representative, or the previous alternate CO2 authorized account representative prior to the time and date when the department or its agent receives the superseding application for a general account shall be binding on the new alternate CO2 authorized account representative and the persons with an ownership interest with respect to the CO2 allowances in the general account.
(iii) In the event a new person having an ownership interest with respect to CO2 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 representations, actions, inactions, and submissions of the CO2 authorized account representative and any alternate CO2 authorized account representative, and the decisions, orders, actions, and inactions of the department or its agent, as if the new person were included in such list.
(iv) Within 30 days following any change in the persons having an ownership interest with respect to CO2 allowances in the general account, including the addition or deletion of persons, the CO2 authorized account representative or any alternate CO2 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 CO2 allowances in the general account to include the change.
(4) 'Objections concerning CO2 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 department or its agent 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 department or its agent.
(ii) Except as provided in Subparagraphs (b)(3)(i) and (ii) of this Section, no objection or other communication submitted to the department or its agent concerning the authorization, or any representation, action, inaction, or submission of the CO2 authorized account representative or any alternate CO2 authorized account representative for a general account shall affect any representation, action, inaction, or submission of the CO2 authorized account representative or any alternate CO2 authorized account representative or the finality of any decision or order by the department or its agent under the CO2 Budget Trading Program.
(iii) Neither the department nor its agent will adjudicate any private legal dispute concerning the authorization or any representation, action, inaction, or submission of the CO2 authorized account representative or any alternate CO2 authorized account representative for a general account, including private legal disputes concerning the proceeds of CO2 allowance transfers.
(5) 'Delegation by CO2 authorized account representative and alternate CO2 authorized account representative'.
(i) A CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent provided for under Subparts 242-6 and 242-7 of this Part.
(ii) An alternate CO2 authorized account representative may delegate, to one or more natural persons, his or her authority to make an electronic submission to the department or its agent provided for under Subparts 242-6 and 242-7 of this Part.
(iii) In order to delegate authority to make an electronic submission to the department or its agent in accordance with Subparagraphs (i) and (ii) of this Paragraph, the CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, must submit to the department or its agent a notice of delegation, in a format prescribed by the department that includes the following elements:
(a) The name, address, e-mail address, telephone number, and facsimile transmission number of such CO2 authorized account representative or alternate CO2 authorized account representative;
(b) The name, address, e-mail address, telephone number and facsimile transmission number of each such natural person, herein referred to as "electronic submission agent";
(c) For each such natural person, a list of the type of electronic submissions under Subdivision (a) or (b) of this Section for which authority is delegated to him or her; and
(d) The following certification statements by such CO2 authorized account representative or alternate CO2 authorized account representative:
(1) "I agree that any electronic submission to the department or its agent that is by a natural person identified in this notice of delegation and of a type listed for such electronic submission agent in this notice of delegation and that is made when I am a CO2 authorized account representative or alternate CO2 authorized account representative, as appropriate, and before this notice of delegation is superseded by another notice of delegation under Subparagraph 242-6.2(b)(5)(iv) shall be deemed to be an electronic submission by me."
(2) "Until this notice of delegation is superseded by another notice of delegation under Subparagraph 242-6.2(b)(5)(iv), I agree to maintain an e-mail account and to notify the department or its agent immediately of any change in my e-mail address unless all delegation authority by me under Paragraph 242-6.2(b)(5) is terminated."
(iv) A notice of delegation submitted under subparagraph (iii) of this paragraph shall be effective, with regard to the CO2 authorized account representative or alternate CO2 authorized account representative identified in such notice, upon receipt of such notice by the department or its agent and until receipt by the department or its agent of a superseding notice of delegation by such CO2 authorized account representative or alternate CO2 authorized account representative as appropriate. The superseding notice of delegation may replace any previously identified electronic submission agent, add a new electronic submission agent, or eliminate entirely any delegation of authority.
(v) Any electronic submission covered by the certification in Subclause (iii)(d)(1) of this Paragraph and made in accordance with a notice of delegation effective under Subparagraph (iv) of this Paragraph shall be deemed to be an electronic submission by the CO2 authorized account representative or alternate CO2 authorized account representative submitting such notice of delegation.
(c) 'Account identification'. The department or its agent will assign a unique identifying number to each account established under Subdivisions (a) or (b) of this Section.
242-6.3 CO2 Allowance Tracking System responsibilities of CO2 authorized account representative.
Following the establishment of a CO2 Allowance Tracking System account, all submissions to the department or its agent pertaining to the account, including, but not limited to, submissions concerning the deduction or transfer of CO2 allowances in the account, shall be made only by the CO2 authorized account representative for the account.
242-6.4 Recordation of CO2 allowance allocations.
(a) By January 1, 2009, the department or its agent will record in the energy efficiency and clean technology account, the voluntary renewable energy market set-aside account, and the long term contract set-aside account, the CO2 allowances for all allocation years.
(b) 'Serial numbers for allocated CO2 allowances'. When allocating CO2 allowances to and recording them in an account, the department or its agent will assign each CO2 allowance a unique identification number that will include digits identifying the year for which the CO2 allowance is allocated.
(c) On or before December 31, 2009, the Department shall record any ERAs awarded pursuant to 242-5.3(c)(5) of this Part in the CO2 budget source's compliance account.
242-6.5 Compliance.
(a) 'Allowances available for compliance deduction'. CO2 allowances that meet the following criteria are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements of 242-1.5(c) of this Part for a control period.
(1) The CO2 allowances, other than CO2 offset allowances, are of allocation years that fall within a prior control period or the same control period for which the allowances will be deducted.
(2) The CO2 allowances are held in the CO2 budget source's compliance account as of the CO2 allowance transfer deadline for that control period or are transferred into the compliance account by a CO2 allowance transfer correctly submitted for recordation under Section 242-7.1 of this Part by the CO2 allowance transfer deadline for that control period.
(3) For CO2 offset allowances, the number of CO2 offset allowances that are available to be deducted in order for a CO2 budget source to comply with the CO2 requirements under Subdivision 242-1.5(c) of this Part for a control period may not exceed the number of tons representing the following percentages of the CO2 budget source's CO2 emissions for that control period, as determined in accordance with Subparts 242-6 and 242-8 of this Part:
(i) unless the provisions of Subparagraphs (ii) or (iii) of this Paragraph apply, 3.3 percent;
(ii) if the department determines that there has been a stage one trigger event, five percent;
(iii) if the department determines that there has been a stage two trigger event, 10 percent.
(4) The CO2 allowances are not necessary for deductions for excess emissions for a prior control period under Subdivision (d) of this Section.
(b) 'Deductions for compliance'. Following the recordation, in accordance with Section 242-7.2 of this Part, of CO2 allowance transfers submitted for recordation in the CO2 budget source's compliance account by the CO2 allowance transfer deadline for a control period, the department or its agent will deduct CO2 allowances available under Subdivision (a) of this Section to cover the source's CO2 emissions (as determined in accordance with Subpart 242-8 of this Part) for the control period, as follows:
(1) until the amount of CO2 allowances deducted equals the number of tons of total CO2 emissions, less any CO2 emissions attributable to the burning of eligible biomass, determined in accordance with Subpart 242-8 of this Part from all CO2 budget units at the CO2 budget source for the control period; or
(2) if there are insufficient CO2 allowances to complete the deductions in Paragraph (b)(1) of this Section, until no more CO2 allowances available under Subdivision (a) of this Section remain in the compliance account.
(c) 'Identification of available CO2 allowances by serial number; default compliance deductions'.
(1) The CO2 authorized account representative for a source's compliance account may request that specific CO2 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 identification shall be made in the compliance certification report submitted in accordance with Section 242-4.1 of this Part.
(2) The department or its agent will deduct CO2 allowances for a control period from the CO2 budget source's compliance account, in the absence of an identification or in the case of a partial identification of available CO2 allowances by serial number under Paragraph (c)(1) of this Section, in the following order:
(i) First, subject to the relevant compliance deduction limitations under Paragraphs (a)(3) and (d)(1) of this Section, CO2 offset allowances. CO2 offset allowances shall be deducted in chronological order ('i.e.', CO2 offset allowances from earlier allocation years shall be deducted before CO2 offset allowances from later allocation years). In the event that some, but not all CO2 offset allowances from a particular allocation year are to be deducted, CO2 allowances shall be deducted by serial number, with lower serial numbered allowances deducted before higher serial numbered allowances.
(ii) Second, any CO2 allowances, other than CO2 offset allowances, which are available for deduction under Subdivision (a) of this Section. CO2 allowances shall be deducted in chronological order ('i.e.', CO2 allowances from earlier allocation years shall be deducted before CO2 allowances from later allocation years). In the event that some, but not all CO2 allowances from a particular allocation year are to be deducted, CO2 allowances shall be deducted by serial number, with lower serial numbered allowances deducted before higher serial numbered allowances.
(d) 'Deductions for excess emissions'.
(1) After making the deductions for compliance under Subdivision (b) of this Section, the department or its agent will deduct from the CO2 budget source's compliance account a number of CO2 allowances, from allocation years that occur after the control period in which the source has excess emissions, equal to three times the number of the source's excess emissions. In the event that a source has insufficient CO2 allowances to cover three times the number of the source's excess emissions, the source shall be required to immediately transfer sufficient allowances into its compliance account. No CO2 offset allowances may be deducted to account for the source's excess emissions.
(2) Any CO2 allowance deduction required under Paragraph (d)(1) of this Section shall not affect the liability of the owners and operators of the CO2 budget source or the CO2 units at the source for any fine, penalty, or assessment, or their obligation to comply with any other remedy, for the same violation, as ordered under applicable State law. The following guidelines will be followed in assessing fines, penalties or other obligations.
(i) For purposes of determining the number of days of violation, if a CO2 budget source has excess emissions for a control period, each day in the control period constitutes a day in violation unless the owners and operators of the unit demonstrate that a lesser number of days should be considered.
(ii) Each ton of excess emissions is a separate violation.
(3) The propriety of the department's determination that a CO2 budget source had excess emissions and the concomitant deduction of CO2 allowances from that CO2 budget source's account may be later challenged in the context of the initial administrative enforcement, or any civil or criminal judicial action arising from or encompassing that excess emissions violation. The commencement or pendency of any administrative enforcement, or civil or criminal judicial action arising from or encompassing that excess emissions violation will not act to prevent the department or its agent from initially deducting the CO2 allowances resulting from the department's original determination that the relevant CO2 budget source has had excess emissions. Should the department's determination of the existence or extent of the CO2 budget source's excess emissions be revised either by a settlement or final conclusion of any administrative or judicial action, the department will act as follows.
(i) In any instance where the department's determination of the extent of excess emissions was too low, the department will take further action under Paragraphs (d)(1) and (2) of this Section to address the expanded violation.
(ii) In any instance where the department's determination of the extent of excess emissions was too high, the department will distribute to the relevant CO2 budget source a number of CO2 allowances equaling the number of CO2 allowances deducted which are attributable to the difference between the original and final quantity of excess emissions. Should such CO2 budget source's compliance account no longer exist, the CO2 allowances will be provided to a general account selected by the owner or operator of the CO2 budget source from which they were originally deducted.
(e) The department or its agent will record in the appropriate compliance account all deductions from such an account pursuant to Subdivisions (b) and (d) of this Section.
(f) 'Action by the department on submissions'.
(1) The department may review and conduct independent audits concerning any submission under the CO2 Budget Trading Program and make appropriate adjustments of the information in the submissions.
(2) The department may deduct CO2 allowances from or transfer CO2 allowances to a source's compliance account based on information in the submissions, as adjusted under Paragraph (f)(1) of this Section.
242-6.6 Banking.
Each CO2 allowance that is held in a compliance account or a general account will remain in such account unless and until the CO2 allowance is deducted or transferred under Section 242-4.2, 242-6.5, 242-6.7, or Subpart 242-7 of this Part.
242-6.7 Account error.
The department or its agent may, at its sole discretion and on his or her own motion, correct any error in any CO2 Allowance Tracking System account. Within 10 business days of making such correction, the department or its agent will notify the CO2 authorized account representative for the account.
242-6.8 Closing of general accounts.
(a) A CO2 authorized account representative of a general account may instruct the department or its agent to close the account by submitting a statement requesting deletion of the account from the CO2 Allowance Tracking System and by correctly submitting for recordation under Section 242-7.1 of this Part a CO2 allowance transfer of all CO2 allowances in the account to one or more other CO2 Allowance Tracking System accounts.
(b) If a general account shows no activity for a period of six years or more and does not contain any CO2 allowances, the department or its agent may notify the CO2 authorized account representative for the account that the acco