§ 145.1. Purpose.

 This subchapter establishes general provisions and the applicability, allowance, excess emissions, monitoring and opt-in provisions for the NO_x Budget Trading Program as a means of mitigating the interstate transport of ozone and nitrogen oxides, an ozone precursor.

 The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:

   Account certificate of representation—The completed and signed submission certifying the designation of a NO_x authorized account representative for a NO_x budget source or a group of identified NO_x budget sources who is authorized to represent the owners and operators of the sources and of the NO_x budget units at the sources with regard to matters under the NO_x Budget Trading Program.

   Account number—The identification number given by the Administrator to each NO_x Allowance Tracking System account.

   Acid rain emissions limitation—A limitation on emissions of sulfur dioxide or NO_x under the Acid Rain Program under Title IV of the Clean Air Act (42 U.S.C.A. § §  7651—7651o).

   Act—The Air Pollution Control Act (35 P. S. § §  4001—4015).

   Administrator—The Administrator of the EPA or the Administrator’s authorized representative.

   Allocate or allocation—The determination by the Department of the number of NO_x allowances to be initially credited to a NO_x budget unit or an allocation set-aside.

   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.

   CAA—The Clean Air Act (42 U.S.C.A. § §  7401—7642).

   CEMS—continuous emission monitoring system—The equipment required under this subchapter and Chapter 139 (relating to sampling and testing) to sample, analyze, measure and provide, by readings taken at least once every 15 minutes of the measured parameters, a permanent record of NO_x emissions, expressed in pounds per hour for NO_x. The following systems are component parts included, consistent with this subchapter and 40 CFR Part 75 (relating to continuous emission monitoring), in a continuous emission monitoring system:

     (i)   Flow monitor.

     (ii)   NO_x pollutant concentration monitors.

     (iii)   Diluent gas monitor (O₂ or CO₂).

     (iv)   A continuous moisture monitor.

     (v)   A DAHS.

   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.

   Combustion turbine—An enclosed fossil or other fuel-fired device that is comprised of a compressor, a combustor and a turbine, and in which the flue gas resulting from the combustion of fuel in the combustor passes through the turbine, rotating the turbine.

   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.

     (i)   Except as provided in §  145.4(b), §  145.5 or § §  145.80—145.88 (relating to applicability; and opt-in process), for a unit that is a NO_x budget unit under §  145.4 on the date the unit commences commercial operation, the date shall remain the unit’s date of commencement of commercial operation even if the unit is subsequently modified, reconstructed or repowered.

     (ii)   Except as provided in §  145.4(b), §  145.5 or § §  145.80—145.88, for a unit that is not a NO_x budget unit under §  145.4 on the date the unit commences commercial operation, the date the unit becomes a NO_x budget unit under §  145.4 is the unit’s date of commencement of commercial operation.

   Commence operation—To have begun any mechanical, chemical or electronic process, including, with regard to a unit, start-up of a unit’s combustion chamber.

     (i)   Except as provided in §  145.4(b), §  145.5 or § §  145.80—145.88, for a unit that is a NO_x budget unit under §  145.4 on the date of commencement of operation, the date shall remain the unit’s date of commencement of operation even if the unit is subsequently modified, reconstructed or repowered.

     (ii)   Except as provided in §  145.4(b), §  145.5 or § §  145.80—145.88, for a unit that is not a NO_x budget unit under §  145.4 on the date of commencement of operation, the date the unit becomes a NO_x budget unit under §  145.4 shall be the unit’s date of commencement of operation.

   Common stack—A single flue through which emissions from two or more units are exhausted.

   Compliance account—A NO_x Allowance Tracking System account for a NO_x budget unit under this subchapter, in which the NO_x allowance allocations for the unit are initially recorded and in which are held NO_x allowances available for use by the unit for a control period for the purpose of meeting the unit’s NO_x budget emissions limitation.

   Compliance certification—A submission to the Department and the Administrator that is required under this subchapter to report a NO_x budget source’s or a NO_x budget unit’s compliance or noncompliance with this subchapter and that is signed by the NO_x authorized account representative in accordance with this subchapter.

   Control period—The period beginning May 1 of a year and ending on September 30 of the same year, inclusive.

   DAHS—automated data acquisition and handling system—The component of the CEMS, or other emissions monitoring system approved for use under this subchapter and Chapter 139, 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 this subchapter.

   Electricity for sale under firm contract to the electric grid—Electricity for sale where the capacity involved is intended to be available at all times during the period covered by a guaranteed commitment to deliver, even under adverse conditions.

   Emissions—Air contaminants exhausted from a unit or source into the atmosphere as determined in accordance with this subchapter.

   Energy Information Administration—The Energy Information Administration of the United States Department of Energy.

   Excess emissions—Any tonnage of NO_x emitted by a NO_x budget unit during a control period that exceeds the NO_x budget emissions limitation for the unit.

   Fossil fuel—Natural gas, petroleum, coal, or any form of solid, liquid or gaseous fuel derived from this material.

   Fossil fuel-fired—With regard to a unit, one of the following:

     (i)   For units that commenced operation before January 1, 1996, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during 1995, or, if a unit had no heat input in 1995, during the last year of operation of the unit prior to 1995.

     (ii)   For units that commenced operation on or after January 1, 1996, and before January 1, 1997, the combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during 1996.

     (iii)   For units that commence operation on or after January 1, 1997, one of the following:

       (A)   The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel actually combusted comprises more than 50% of the annual heat input on a Btu basis during any year.

       (B)   The combination of fossil fuel, alone or in combination with any other fuel, where fossil fuel is projected to comprise more than 50% of the annual heat input on a Btu basis during any year, provided that the unit shall be ‘‘fossil fuel-fired’’ as of the date, during that year, on which the unit begins combusting fossil fuel.

   General account—A NO_x Allowance Tracking System account, established under this subchapter, that is not a compliance account or an overdraft account.

   Generator—A device that produces electricity.

   Heat input—The product (in mmBtu/time) of the gross calorific value of the fuel (in Btu/lb) divided by 1 million Btu and multiplied by the fuel feed rate into a combustion device (in mass of fuel/time) as determined in accordance with this subchapter, and does not include the heat derived from preheated combustion air, recirculated flue gases or exhaust from other sources.

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

   Life-of-the-unit, firm power contractual arrangement—A unit participation power sales agreement under which a utility or industrial customer reserves, or is entitled to receive, a specified amount or percentage of nameplate capacity and associated energy from any specified unit and pays its proportional amount of the unit’s total costs, pursuant to a contract for one of the following:

     (i)   The life of the unit.

     (ii)   A cumulative term of at least 30 years, including contracts that permit an election for early termination.

     (iii)   A period equal to or greater than 25 years or 70% 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.

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

   Maximum potential hourly heat input—An hourly heat input (in mmBtu/hr) used for reporting purposes when a unit lacks certified monitors to report heat input. If the unit intends to use 40 CFR Part 75, Appendix D (relating to optional SO₂ emissions data protocol for gas) to report heat input, this value shall 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 shall be reported, in accordance with 40 CFR Part 75, using the maximum potential flow rate and either the maximum carbon dioxide concentration (in % CO₂) or the minimum oxygen concentration (in % O₂).

   Maximum potential NO_x emission rate—The emission rate of NO_x (in lb/mmBtu) calculated in accordance with 40 CFR Part 75, Appendix F, Section 3 (relating to procedure for NO_x emission rate), using the maximum potential NO_x concentration as defined in 40 CFR Part 75 Appendix A, Section 2 (relating to equipment specifications), and either the maximum O₂ concentration (in % O₂) or the minimum carbon dioxide concentration (in % CO₂).

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

   Monitoring system—A monitoring system that meets the requirements of this subchapter, including a CEMS, an excepted monitoring system or an alternative monitoring system.

   Most stringent State or Federal NO_x emissions limitation—With regard to a NO_x budget opt-in source, the lowest NO_x emissions limitation (in terms of lb/mmBtu) that is applicable to the unit under State or Federal law, regardless of the averaging period to which the emissions limitation applies.

   Nameplate capacity—The maximum electrical generating 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.

   NO_x allowance—An authorization by the Department under the NO_x Budget Trading Program to emit up to 1 ton of NO_x during the control period of the specified year or of any year thereafter, except as provided under §  145.54(f) (relating to compliance). No provision of the NO_x Budget Trading Program, any permit, or an exemption under §  145.4(b) or §  145.5 and no provision of law will be construed to limit the authority of the Department or the Administrator to terminate or limit the authorization, which does not constitute a property right. For purposes of all sections of this subchapter except § §  145.41—145.43 and 145.88, NO_x allowance also includes an authorization to emit up to 1 ton of NO_x during the control period of the specified year or of any year thereafter by the Department or the Administrator.

   NO_x allowance deduction or deduct NO_x allowances—The permanent withdrawal of NO_x allowances from a NO_x Allowance Tracking System compliance account or overdraft account to account for the number of tons of NO_x emissions from a NO_x budget unit for a control period, determined in accordance with this subchapter, or for any other allowance surrender obligation under this subchapter.

   NO_x allowances held or hold NO_x allowances—The NO_x allowances recorded or submitted for recordation, in accordance with this subchapter, in a NO_x Allowance Tracking System account.

   NO_x Allowance Tracking System—The system for recording allocations, deductions and transfers of NO_x allowances under the NO_x Budget Trading Program.

   NO_x Allowance Tracking System account—An account in the NO_x Allowance Tracking System for purposes of recording the allocation, holding, transferring or deducting of NO_x allowances.

   NO_x allowance transfer deadline—Midnight of November 30 or, if November 30 is not a business day, midnight of the first business day thereafter and is the deadline by which NO_x allowances may be submitted for recordation in a NO_x budget unit’s compliance account, or the overdraft account of the source where the unit is located, to meet the unit’s NO_x budget emissions limitation for the control period immediately preceding the deadline.

   NO_x authorized account representative—For a NO_x budget source or NO_x budget unit at the source, the natural person who is authorized by the owners and operators of the source and all NO_x budget units at the source, in accordance with this subchapter, to represent and legally bind each owner and operator in matters pertaining to the NO_x Budget Trading Program or, for a general account, the natural person who is authorized, in accordance with this subchapter, to transfer or otherwise dispose of NO_x allowances held in the general account.

   NO_x Budget Administrator—The person or agency designated by the Department to administer the NO_x Budget Trading Program. This person may be the Administrator of the EPA.

   NO_x budget emissions limitation—For a NO_x budget unit, the tonnage equivalent of the NO_x allowances available for compliance deduction for the unit and for a control period under §  145.54(a), (b), (e) and (f) adjusted by any deductions of the NO_x allowances to account for actual heat input under §  145.42(e) (relat ing to NO_x allowance allocations) for the control period or to account for excess emissions for a prior control period under §  145.54(d) or to account for withdrawal from the NO_x Budget Trading Program, or for a change in regulatory status, for a NO_x budget opt-in source under §  145.86 or §  145.87 (relating to opt-in source withdrawal from NO_x Budget Trading Program; and opt-in source change in regulatory status).

   NO_x budget opt-in source—A unit that has been elected to become a NO_x budget unit under the NO_x Budget Trading Program and whose NO_x budget opt-in approval has been issued and is in effect under this subchapter.

   NO_x budget source—A source that includes one or more NO_x budget units.

   NO_x Budget Trading Program—A multistate NO_x air pollution control and emission reduction program established in accordance with this subchapter, as a means of mitigating the interstate transport of ozone and NO_x, an ozone precursor.

   NO_x budget unit—A unit that is subject to the NO_x Budget Trading Program emissions limitation under §  145.4 or §  145.80 (relating to application for opt-in sources).

   Operating—With regard to a unit under §  145.80 (relating to application for opt-in sources), having documented heat input for more than 876 hours in the 6 months immediately preceding the submission of an application for an initial NO_x budget opt-in approval under §  145.83 (relating to applying for NO_x budget opt-in approval). The unit’s documented heat input will be determined in accordance with 40 CFR Part 75 (relating to continuous emission monitoring) if the unit was otherwise subject to 40 CFR Part 75 during that 6-month period or will be based on the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of 40 CFR Part 75 during that 6-month period.

   Operator——A person who operates, controls or supervises a NO_x budget unit, a NO_x budget source or unit for which an application for a NO_x budget opt-in approval under §  145.83 is submitted and not denied or withdrawn and shall include, but not be limited to, a holding company, utility system or plant manager of a unit or source.

   Opt-in—To elect to become a NO_x budget unit under the NO_x Budget Trading Program through a final, effective NO_x budget opt-in approval under this subchapter.

   Overdraft account—The NO_x Allowance Tracking System account established under this subchapter for each NO_x budget source where there are two or more NO_x budget units.

   Owner—Any of the following persons:

     (i)   A holder of any portion of the legal or equitable title in a NO_x budget unit or in a unit for which an application for a NO_x budget opt-in approval under §  145.83 is submitted and not denied or withdrawn.

     (ii)   A holder of a leasehold interest in a NO_x budget unit or in a unit for which an application for a NO_x budget opt-in approval under §  145.83 is submitted and not denied or withdrawn.

     (iii)   A purchaser of power from a NO_x budget unit or from a unit for which an application for a NO_x budget opt-in approval under §  145.83 is submitted and not denied or withdrawn under a life-of-the-unit, firm power contractual arrangement. However, unless expressly provided for in a leasehold agreement, an owner may not include a passive lessor, or a person who has an equitable interest through the lessor, whose rental payments are not based, either directly or indirectly, upon the revenues or income from the NO_x budget unit or the unit for which an application for a NO_x budget opt-in approval under §  145.83 is submitted and not denied or withdrawn.

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

   Percent monitor data availability—For the purposes of § §  145.43(a)(1) and 145.84(2) (relating to compliance supplement pool; and opt-in procedures), the total unit operating hours for which quality-assured data were recorded under this subchapter in a control period, divided by the total unit operating hours during the control period, and multiplied by 100%.

   Potential electrical output capacity—Thirty-three percent of a unit’s maximum design heat input.

   Receive or receipt of—When referring to the Department, the Administrator or the NO_x Budget Administrator 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 Administrator in the regular course of business.

   Recordation, record or recorded—With regard to NO_x allowances, the movement of NO_x allowances from one NO_x Allowance Tracking System account to another, for purposes of allocation, transfer or deduction.

   Reference method—A direct test method of sampling and analyzing for an air pollutant as specified in 40 CFR Part 60, Appendix A (relating to specifications and test).

   Serial number—When referring to NO_x allowances, the unique identification number assigned to each NO_x allowance, under §  145.53(c).

   Source—A governmental, institutional, commercial or industrial structure, installation, plant, building or facility that emits or has the potential to emit a regulated air pollutant under the Clean Air Act. For purposes of section 502(c) of the Clean Air Act (42 U.S.C.A. §  7661a(c)), a source, including a source with multiple units, shall be considered a single facility.

   State—One of the 48 contiguous states and the District of Columbia that adopts a NO_x Budget Trading Program. The term shall have its conventional meaning where the meaning is clear from the context.

   State trading program budget—The total number of NO_x tons apportioned to all NO_x budget units in a given state, in accordance with the NO_x Budget Trading Program, for use in a given control period.

   Submit or serve—To send or transmit a document, information or correspondence to the person specified in accordance with the applicable regulation by one of the following methods:

     (i)   In person.

     (ii)   By United States Postal Service.

     (iii)   By other means of dispatch or transmission and delivery. Except where otherwise expressly provided, 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.

   Ton or tonnage—A ‘‘short ton’’ (that is, 2,000 pounds). For the purpose of determining compliance with the NO_x budget emissions limitation, 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 this subchapter, with any remaining fraction of a ton equal to or greater than 0.50 ton deemed to equal 1 ton and any fraction of a ton less than 0.50 ton deemed to equal zero tons.

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

   Unit operating day—A calendar day in which a unit combusts any fuel.

   Unit operating hour or hour of unit operation—Any hour (or fraction of an hour) during which a unit combusts any fuel.

 Measurements, abbreviations and acronyms used in this subchapter are defined as follows:

   Btu—British thermal unit.

   hr—Hour.

   Kw—Kilowatt electrical.

   Kwh—Kilowatt hour.

   lb—Pounds.

   mmBtu—Million Btu.

   MWe—Megawatt electrical.

   Ton—2,000 pounds.

   CO₂—Carbon dioxide.

   NO_x—Nitrogen oxides.

   O₂—Oxygen.

 (a)  The following units shall be NO_x budget units, and any source that includes one or more of the units shall be a NO_x budget source, subject to the requirements of this subchapter:

   (1)  Electric generating units.

     (i)   For units that commenced operation before January 1, 1997, a unit serving a generator during 1995 or 1996 that had a nameplate capacity greater than 25 MWe and produced electricity for sale under firm contract to the electric grid.

     (ii)   For units that commenced operation on or after January 1, 1997, and before January 1, 1999, a unit serving a generator during 1997 or 1998 that had a nameplate capacity greater than 25 MWe and produced electricity for sale under firm contract to the electric grid.

     (iii)   For units that commenced operation on or after January 1, 1999, a unit serving a generator at any time that has a nameplate capacity greater than 25 MWe and produces electricity for sale.

   (2)  Nonelectric generating units.

     (i)   For units that commenced operation before January 1, 1997, a unit that has a maximum design heat input greater than 250 mmBtu/hr and that did not serve during 1995 or 1996 a generator producing electricity for sale under firm contract to the electric grid.

     (ii)   For units that commenced operation on or after January 1, 1997, and before January 1, 1999, a unit that has a maximum design heat input greater than 250 MMBtu/hr and that did not serve during 1997 or 1998 a generator producing electricity for sale under firm contract to the electric grid.

     (iii)   For units that commenced operation on or after January 1, 1999, a unit with a maximum design heat input greater than 250 mmBtu/hr that does one of the following:

       (A)   At no time serves a generator producing electricity for sale.

       (B)   At any time serves a generator producing electricity for sale, if the generator has a nameplate capacity of 25 MWe or less and has the potential to use no more than 50% of the potential electrical output capacity of the unit.

 (b)  Twenty-five ton exemption.

   (1)  Notwithstanding subsection (a), a unit under subsection (a)(1) or (2) that has a Federally enforceable permit that includes a NO_x emission limitation restricting NO_x emissions during a control period to 25 tons or less and that includes the special provisions in subsection (b)(4) shall be exempt from the requirements of the NO_x Budget Trading Program, except for subsection (a), this paragraph and § §  145.2, 145.3, 145.7, 145.40—145.43, 145.50—145.57 and 145.60—145.62. The NO_x emission limitation under this paragraph shall restrict NO_x emissions during the control period by limiting unit operating hours or heat input. The restriction on unit operating hours shall be calculated by dividing the permit restriction tonnage by the unit’s maximum potential hourly NO_x mass emissions, which shall equal the unit’s maximum rated hourly heat input multiplied by the highest default NO_x emission rate otherwise applicable to the unit under 40 CFR 75.19 (relating to optional emissions calculation for low mass emissions units). The restriction on heat input shall be calculated by dividing the permit restriction tonnage by the unit’s highest default NO_x emission rate otherwise applicable to the unit under 40 CFR 75.19.

   (2)  The exemption under paragraph (1) shall become effective under one of the following subparagraphs as follows:

     (i)   The exemption shall become effective on the date on which the NO_x emission limitation and the special provisions in the permit under paragraph (1) become final.

     (ii)   If the NO_x emission limitation and the special provisions in the permit under paragraph (1) become final during a control period and after the first date on which the unit operates during that control period, the exemption shall become effective on May 1 of the control period, provided that the NO_x emission limitation and the special provisions apply to the unit as of the first date of operation. If the NO_x emission limitation and special provisions do not apply to the unit as of the first date of operation, the exemption under paragraph (1) shall become effective on October 1 of the year during which the NO_x emission limitation and the special provisions become final.

   (3)  The Department will provide notice to the NO_x Budget Administrator of the issuance of the permit and, upon request, a copy of the permit.

   (4)  Special provisions are as follows:

     (i)   A unit exempt under paragraph (1) shall comply with the restriction on unit operating hours described in paragraph (1) during the control period each year.

     (ii)   The Department will allocate NO_x allowances to the unit under § §  145.41(a)—(c) and 145.42(a)—(c) (relating to timing requirements for NO_x allowance allocations; and NO_x allowance allocations) for each control period for which the unit is allocated NO_x allowances under § §  145.41(a)—(c) and 145.42(a)—(c) the following shall occur:

       (A)   The owners and operators of the unit shall specify a general account, in which the NO_x Budget Administrator will record the NO_x allowances.

       (B)   After the NO_x Budget Administrator records NO_x allowances under § §  145.41(a)—(c) and 145.42(a)—(c), the NO_x Budget Administrator will deduct, from the general account specified in clause (A), NO_x allowances that are allocated for the same or a prior control period as the NO_x allowances allocated to the unit under § §  145.41(a)—(c) and 145.42(a)—(c) and that equal the NO_x emission limitation (in tons of NO_x) on which the unit’s exemption under paragraph (1) is based. The NO_x authorized account representative shall ensure that the general account contains the NO_x allowances necessary for completion of the deduction.

     (iii)   A unit exempt under subsection (b) shall report hours of unit operation during the control period in each year to the Department by November 1 of that year.

     (iv)   For 5 years from the date the records are created, the owners and operators of a unit exempt under paragraph (1) shall retain records demonstrating that the conditions of the Federally enforceable permit under paragraph (1) were met, including the restriction on unit operating hours. The 5-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 or administrator. The owners and operators bear the burden of proof that the unit met the restriction on unit operating hours.

     (v)   The owners and operators and, to the extent applicable, the NO_x authorized account representative of a unit exempt under paragraph (1) shall comply with the requirements of the NO_x Budget Trading Program concerning all periods for which the exemption is not in effect, even if these requirements arise, or must be complied with, after the exemption takes effect.

     (vi)   On the earlier of the following dates, a unit exempt under paragraph (1) shall lose its exemption when one of the following occurs:

       (A)   The date on which the restriction on unit operating hours described in paragraph (1) is removed from the unit’s Federally enforceable permit or otherwise becomes no longer applicable to any control period starting in 2003.

       (B)   The first date on which the unit fails to comply, or with regard to which the owners and operators fail to meet their burden of proving that the unit is complying, with the restriction on unit operating hours described in paragraph (1) during any control period starting in 2003.

     (vii)   A unit that loses its exemption in accordance with subparagraph (vi) shall be subject to this subchapter. For the purpose of allocating allowances under § §  145.40—145.43 (relating to State trading program budget) and applying monitoring requirements under § §  145.70—145.76 (relating to recordkeeping and reporting requirements), the unit shall be treated as commencing operation and, if the unit is covered by subsection (a)(1), commencing commercial operation on the date the unit loses its exemption.

 (viii)  a unit that is exempt under paragraph (1) is not eligible to be a NO_x budget opt-in unit under § §  145.80—145.88 (relating to opt-in process).

 (a)  Application. This section applies to a NO_x budget unit, other than a NO_x budget opt-in source, that is permanently retired.

 (b)  Requirements.

   (1)  A NO_x budget unit, other than a NO_x budget opt-in source, that is permanently retired is exempt from the NO_x Budget Trading Program, except for the provisions of this section, § §  145.2, 145.3, 145.4, 145.6, 145.7 and 145.40—145.43, 145.50—145.57 and 145.60—145.62.

   (2)  The exemption under paragraph (1) shall become effective the day on which the unit is permanently retired. Within 30 days of permanent retirement, the NO_x authorized account representative (authorized in accordance with this subchapter) shall submit a statement to the Department. A copy of the statement shall be submitted to the Administrator. The statement shall state (in a format prescribed by the Department) that the unit is permanently retired and will comply with subsection (c).

   (3)  After receipt of the notice under paragraph (2), the Department will amend any permit issued by the Department covering the source at which the unit is located to add the provisions and requirements of the exemption under paragraph (1) and subsection (c).

 (c)  Special provisions.

   (1)  A unit exempt under this section may not emit NO_x, starting on the date that the exemption takes effect. The owners and operators of the unit will be allocated allowances in accordance with § §  145.40—145.43 (relating to NO_x allowance allocations).

   (2)  A unit exempt under this section may not resume operation unless authorized by the Department. The NO_x authorized account representative of the source shall submit a restart request to the Department for the unit at least 18 months prior to the date on which the unit is to first resume operation. The restart request shall, at a minimum, contain the following:

     (i)   Identification of the NO_x budget source, including the plant name and the Office of Regulatory Information Systems or facility code assigned to the source by the energy information administration, if applicable.

     (ii)   Identification of each NO_x budget unit at the NO_x budget source and whether it is a NO_x budget unit under §  145.4 or § §  145.80—145.88 (relating to opt-in process).

   (3)  The owners and operators and, to the extent applicable, the NO_x authorized account representative of a unit exempt under this section shall comply with the requirements of the NO_x Budget Trading Program concerning all periods for which the exemption is not in effect, even if the requirements arise, or must be complied with, after the exemption takes effect.

   (4)  A unit that is exempt under this section is not eligible to be a NO_x budget opt-in source under § §  145.80—145.88.

   (5)  For 5 years from the date the records are created, the owners and operators of a unit exempt under this section shall retain at the source that includes the unit, records demonstrating that the unit is permanently retired. The 5-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 or the Administrator. The owners and operators bear the burden of proof that the unit is permanently retired.

   (6)  Loss of an exemption will be as follows:

     (i)   On the earlier of the following dates, a unit exempt under subsection (b) shall lose its exemption:

       (A)   The date on which the NO_x authorized account representative submits a restart application under paragraph (2).

       (B)   The date on which the NO_x authorized account representative is required under paragraph (2) to submit a restart application.

     (ii)   For the purpose of applying monitoring requirements under § §  145.70—145.76 (relating to recordkeeping and reporting requirements), a unit that loses its exemption under this section shall be treated as a unit that commences operation or commercial operation on the first date on which the unit resumes operation.

 (a)  Monitoring requirements.

   (1)  The owners and operators and the NO_x authorized account representative of each NO_x budget source and each NO_x budget unit at the source shall comply with the monitoring requirements of § §  145.70—145.76 (relating to recordkeeping and recording requirements).

   (2)  The emissions measurements recorded and reported in accordance with § §  145.70—145.76 shall be used to determine compliance by the unit with the NO_x budget emissions limitation under subsection (c).

 (b)  NO_x requirements.

   (1)  The owners and operators of each NO_x budget source and each NO_x budget unit at the source shall hold NO_x allowances available for compliance deductions under §  145.54 (relating to compliance), as of the NO_x allowance transfer deadline, in the unit’s compliance account and the source’s overdraft account in an amount not less than the total NO_x emissions for the control period from the unit, as determined in accordance with § §  145.70—145.76 plus any amount necessary to account for actual heat input under §  145.42(e) (relating to NO_x allowance allocations) for the control period or to account for excess emissions for a prior control period under §  145.54(d) or to account for withdrawal from the NO_x Budget Trading Program, or a change in regulatory status, of a NO_x budget opt-in unit under §  145.86 or §  145.87 (relating to opt-in source withdrawal from NO_x Budget Trading Program; and opt-in source change in regulatory status).

   (2)  Each ton of NO_x emitted in excess of the NO_x budget emissions limitation shall constitute a separate violation of this subchapter and the act.

   (3)  A NO_x budget unit shall be subject to paragraph (1) starting on May 1, 2003, or the date on which the unit commences operation, whichever is later.

   (4)  NO_x allowances shall be held in, deducted from or transferred among NO_x Allowance Tracking System accounts in accordance with § §  145.40—145.43, 145.50—145.57, 145.60—145.62 and 145.80—145.88.

   (5)  A NO_x allowance may not be deducted, to comply with paragraph (1), for a control period in a year prior to the year for which the NO_x allowance was allocated.

   (6)  A NO_x allowance allocated by the Department under the NO_x Budget Trading Program is a limited authorization to emit 1 ton of NO_x in accordance with the NO_x Budget Trading Program. No provision of the NO_x Budget Trading Program or an exemption under §  145.4(b) or §  145.5 (relating to applicability; and retired unit exemption) and no provision of law limit the authority of the United States or the Department to terminate or limit the authorization.

   (7)  A NO_x allowance allocated by the Department under the NO_x Budget Trading Program does not constitute a property right.

 (c)  Excess emissions. The owners and operators of a NO_x budget unit that has excess emissions in any control period shall do the following:

   (1)  Surrender the NO_x allowances required for deduction under §  145.54(d)(1).

   (2)  Pay any fine, penalty or assessment or comply with any other remedy imposed under §  145.54(d)(3) or the act.

 (d)  Recordkeeping and reporting requirements.

   (1)  Unless otherwise provided, the owners and operators of the NO_x budget source and each NO_x budget unit at the source shall maintain at a central location and provide upon request by the Department or the NO_x Budget Administrator the following documents for 5 years from the date the document is created. This period may be extended for cause, at any time prior to the end of 5 years, in writing by the Department or the Administrator.

     (i)   The account certificate of representation for the NO_x authorized account representative for the source and each NO_x budget unit at the source and all documents that demonstrate the truth of the statements in the account certificate of representation, in accordance with §  145.13 (relating to account certificate of representation). The certificate and documents shall be retained beyond the 5-year period until the documents are superseded because of the submission of a new account certificate of representation changing the NO_x authorized account representative.

     (ii)   The emissions monitoring information, in accordance with § §  145.70—145.76. To the extent that § §  145.70—145.76 provides for a 3-year period for recordkeeping, the 3-year period applies.

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

     (iv)   Copies of the documents used to complete any submission under the NO_x Budget Trading Program or to demonstrate compliance with the NO_x Budget Trading Program.

   (2)  The NO_x authorized account representative of a NO_x budget source and each NO_x budget unit at the source shall submit the reports and compliance certifications required under the NO_x Budget Trading Program, including those under § §  145.30, 145.31, 145.70—145.76 and 145.80—145.88.

 (e)  Liability.

   (1)  A permit revision may not excuse any violation of the requirements of the NO_x Budget Trading Program that occurs prior to the date that the revision takes effect.

   (2)  Each NO_x budget source and each NO_x budget unit shall meet the requirements of the NO_x Budget Trading Program.

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

   (4)  Any provision of the NO_x Budget Trading Program that applies to a NO_x budget unit (including a provision applicable to the NO_x authorized account representative of a NO_x budget unit) shall also apply to the owners and operators of the unit. Except with regard to the requirements applicable to units with a common stack under § §  145.70—145.76 the owners and operators and the NO_x authorized account representative of one NO_x budget unit is not liable for any violation by any other NO_x budget unit of which they are not owners or operators or the NO_x authorized account representative and that is located at a source of which they are not owners or operators or the NO_x authorized account representative.

 (f)  Effect on other authorities. No provision of the NO_x Budget Trading Program or an exemption under §  145.4(b) or §  145.5 shall be construed as exempting or excluding the owners and operators and the NO_x authorized account representative of a NO_x budget source or NO_x budget unit from compliance with any other provision of the regulations promulgated under the CAA or the act.

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

 (a)  Allowances. The final year for NOx allowance allocations to be made by the Department under § §  145.41 and 145.42 (relating to timing requirements for NOx allowance allocations; and NOx allowance allocations) will be 2008. Allocations in 2009 will be made in accordance with the Federal CAIR Ozone Season Trading Program, 40 CFR Part 97 (relating to Federal NOx Budget Trading Program and CAIR NOx and SO₂ Trading Programs). CAIR NOx Ozone Season allowance allocations for the control period starting May 1, 2010, and for each control period thereafter, will be distributed in accordance with Subchapter D (relating to CAIR NOx and SO₂ Trading Programs).

 (b)  Termination and retirement of allowances. NOx allowances already allocated under this subchapter for 2009 or later are terminated and may not be used for compliance with the CAIR NOx Annual Trading Program or the CAIR NOx Ozone Season Trading Program, as those terms are defined in 40 CFR 96.102 and 96.302 (relating to definitions). By January 1, 2009, the Department will permanently retire the Commonwealth’s non-EGU NOx Trading Program Budget of 3,619 allowances established in §  145.40 (relating to State Trading Program budget).

 (c)  Requirements replaced. The emission limitations and monitoring requirements established in Subchapter A (relating to NOx Budget Trading Program) are replaced by the requirements in Subchapter D beginning with the May 1, 2010, control period. If the owner or operator of a NOx budget unit or CAIR NOx Ozone Season unit, as defined in 40 CFR 96.302, has failed to demonstrate compliance with §  145.54 (relating to compliance), the provisions in 40 CFR 96.354 (relating to compliance with CAIR NOx emissions limitation) shall be used to withhold CAIR NOx Ozone Season allowances, as that term is defined in 40 CFR 96.302, in calendar year 2010 and beyond. If no CAIR NOx Ozone Season allowances are provided to the unit under §  145.221 (relating to timing requirements for CAIR NOx Ozone Season allowance allocations), the owner or operator of the unit shall acquire and retire a number of CAIR NOx Ozone Season allowances as specified in 40 CFR 96.354.

 (d)  Non-EGU NOx Trading Program Budget. For units subject to the applicability requirements of §  145.4 (relating to applicability), but not subject to the CAIR NOx Ozone Season Trading Program requirements of Subchapter D, the following requirements apply:

   (1)  Statewide limitation. The sum of NOx ozone season emissions from all units subject to this subsection may not exceed the Commonwealth’s non-EGU NOx Trading Program budget of 3,619 tons during any ozone season.

   (2)  CAIR NOx Ozone Season allowances. All units subject to this subsection shall monitor and report NOx emissions in accordance with 40 CFR Part 96, Subpart HHHH (relating to monitoring and reporting), and establish a CAIR-authorized account representative and general account, in accordance with 40 CFR Part 96, Subparts BBBB and FFFF (relating to CAIR designated representative for CAIR NOx Ozone Season sources; and CAIR NOx Ozone Season Allowance Tracking System), incorporated into Subchapter D by reference, for the purposes of ensuring continued compliance with the non-EGU NOx Trading Program budget limitation of paragraph (1) and of retiring CAIR NOx Ozone Season allowances.

   (3)  CAIR NOx allowances. All units subject to this subsection shall establish a CAIR-authorized account representative and general account in accordance with 40 CFR Part 96, Subparts BB and FF (relating to CAIR designated representative for CAIR NOx sources; and CAIR NOx allowance tracking system), incorporated into Subchapter D by reference, for the purpose of retiring CAIR NOx allowances.

   (4)  Emissions below Statewide limitation. If the total ozone season emissions from all units subject to this subsection are less than 3,438 tons of NOx, the Department’s permanent retirement of allowances covers all applicable emissions and no additional account transactions are required by the units covered under this subsection.

   (5)  Allowable emissions per unit. By January 31, 2009, and by January 31 of each year thereafter, the Department will determine the allowable amount of NOx emissions for the next ozone season for each unit subject to this subsection, as follows:

 Allowable emission rate X each unit’s heat input

 Where ‘‘Allowable emission rate’’ =

3,438 tons of NOx

---

Combined heat input of all units during
the most recent ozone season

   (6)  Allowance surrender for excess emissions. If the combined NOx emissions from all units subject to this subsection exceed 3,438 tons in an ozone season, then a unit whose actual emissions exceed the unit’s allowable emissions for that ozone season, as determined under paragraph (5), shall surrender to the Department by April 30 of the year following the ozone season one CAIR NOx Ozone Season allowance and one CAIR NOx allowance for each ton of excess emissions. A unit whose excess emissions are 0.5 ton or greater of the next excess ton shall surrender 1 full ton of CAIR NOx allowances (banked or current) for that excess emission. Units under common ownership may include the allowable and actual emissions from multiple units to determine whether a unit must surrender allowances.

   (7)  Surrender procedure. To surrender allowances under paragraph (6), an owner or operator of a unit shall surrender the required CAIR NOx Ozone Season allowances and CAIR NOx allowances to the Department’s designated NOx allowance tracking system account and provide to the Department, in writing, the following:

     (i)   The serial number of each allowance surrendered.

     (ii)   The calculations used to determine the quantity of allowances required to be surrendered.

   (8)  Failure to surrender allowances. If an owner or operator fails to comply with paragraph (6), the owner or operator shall by June 30 surrender three CAIR NOx Ozone Season allowances and three CAIR NOx allowances of the current or later year vintage for each ton of excess emissions as calculated under paragraph (6).

   (9)  Liability not affected. The surrender of CAIR NOx ozone season allowances and CAIR NOx allowances under paragraph (6) does not affect the liability of the owner or operator of the unit for any fine, penalty or assessment, or an obligation to comply with any other remedy for the same violation, under the CAA or the act.

     (i)   For purposes of determining the number of days of violation, if a facility has excess emissions for the period May 1 through September 30, each day in that period (153 days) constitutes a day in violation unless the owner or operator of the unit demonstrates that a lesser number of days should be considered.

     (ii)   Each ton of excess emissions is a separate violation.

   (10)  Allowance retirement. The Department will permanently retire to the Department’s CAIR NOx retirement account the allowances surrendered under paragraphs (6)—(9).

   (11)  Actual emissions below allowable emissions. If a facility’s allowable emissions exceed the facility’s actual emissions for an ozone season, the owner or operator may deduct the difference or any portion of the difference from the actual emissions of units under the facility’s common control that are subject to § §  129.201—129.203 (relating to boilers; stationary combustion turbines; and stationary internal combustion engines).

   (12)  Corrections. One hundred and eighty-one tons of allowable NOx emissions are available to the Department annually for accounting corrections.

   The provisions of this §  145.8 adopted under section 5 of the Air Pollution Control Act (35 P. S. §  4005).

   The provisions of this §  145.8 adopted April 11, 2008, effective April 12, 2008, 38 Pa.B. 1705.

   This section cited in 25 Pa. Code §  129.201 (relating to boilers); and 25 Pa. Code §  129.202 (relating to stationary combustion turbines).

NO_x ACCOUNT

§ 145.10. Authorization and responsibilities of the NO_x authorized account representative.

 (a)  Except as provided under §  145.11 (relating to alternate NO_x authorized account representative), each NO_x budget source, including all NO_x budget units at the source, shall have only one NO_x authorized account representative, with regard to all matters under the NO_x Budget Trading Program concerning the source or any NO_x budget unit at the source.

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

 (c)  Upon receipt by the Department and the NO_x Budget Administrator of a complete account certificate of representation under §  145.13 (relating to account certificate of representation), the NO_x authorized account representative of the source shall represent and, by his representations, actions, inactions or submissions, legally bind each owner and operator of the NO_x budget source represented and each NO_x budget unit at the source in all matters pertaining to the NO_x Budget Trading Program, not withstanding any agreement between the NO_x authorized account representative and the owners and operators. The owners and operators shall be bound by any decision or order issued to the NO_x authorized account representative by the Department, the Administrator or a court regarding the source or unit.

 (d)  A NO_x Allowance Tracking System account will not be established for a NO_x budget unit at a source, until the Department and the NO_x Budget Administrator have received a complete account certificate of representation under §  145.13 for a NO_x authorized account representative of the source and the NO_x budget units at the source.

 (e)  Document submission requirements are as follows:

   (1)  Each submission under the NO_x Budget Trading Program shall be submitted, signed and certified by the NO_x authorized account representative for each NO_x budget source on behalf of which the submission is made. Each submission shall include the following certification statement by the NO_x authorized account representative:

  ‘‘I am authorized to make this submission on behalf of the owners and operators of the NO_x budget sources or NO_x 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.’’

   (2)  The Department and NO_x Budget Administrator will accept or act on a submission made on behalf of owner or operators of a NO_x budget source or a NO_x budget unit only if the submission has been made, signed and certified in accordance with paragraph (1).

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

 (b)  Upon receipt by the Department and NO_x Budget Administrator of a complete account certificate of representation under §  145.13 (relating to account certificate of representation), any representation, action, inaction or submission by the alternate NO_x authorized account representative shall be deemed to be a representation, action, inaction or submission by the NO_x authorized account representative.

 (c)  Except in this section and § §  145.10(a), 145.12, 145.13 and 145.51, whenever the term ‘‘NO_x authorized account representative’’ is used in this subchapter, the term shall include the alternate NO_x authorized account representative.

 (a)  Changing the NO_x authorized account representative. The NO_x authorized account representative may be changed at any time upon receipt by the Department and the NO_x Budget Administrator of a superseding complete account certificate of representation under §  145.13 (relating to account certificate of representation). Notwithstanding a change, the representations, actions, inactions and submissions by the previous NO_x authorized account representative prior to the time and date when the Department and the NO_x Budget Administrator receives the superseding account certificate of representation shall be binding on the new NO_x authorized account representative and the owners and operators of the NO_x budget source and the NO_x budget units at the source.

 (b)  Changing the alternate NO_x authorized account representative. The alternate NO_x authorized account representative may be changed at any time upon receipt by the Department and the NO_x Budget Administrator of a superseding complete account certificate of representation under §  145.13. Notwithstanding a change, the representations, actions, inactions and submissions by the previous alternate NO_x authorized account representative prior to the time and date when the Department and the NO_x Budget Administrator receives the superseding account certificate of representation shall be binding on the new alternate NO_x authorized account representative and the owners and operators of the NO_x budget source and the NO_x budget units at the source.

 (c)  Changes in the owners and operators.

   (1)  If a new owner or operator of a NO_x budget source or a NO_x budget unit is not included in the list of owners and operators submitted in the account certificate of representation, the 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 NO_x authorized account representative and any alternate NO_x authorized account representative of the source or unit, and the decisions, orders, actions and inactions of the Department or the NO_x Budget Administrator, as if the new owner or operator were included in the list.

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

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

   (1)  Identification of the NO_x budget source and each NO_x budget unit at the source for which the account certificate of representation is submitted.

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

   (3)  A list of the owners and operators of the NO_x budget source and of each NO_x budget unit at the source.

   (4)  The following certification statement by the NO_x authorized account representative and any alternate NO_x authorized account representative:

  ‘‘I certify that I was selected as the NO_x authorized account representative or alternate NO_x authorized account representative, as applicable, by an agreement binding on the owners and operators of the NO_x budget source and each NO_x budget unit at the source. I certify that I have all the necessary authority to carry out my duties and responsibilities under the NO_x Budget Trading Program on behalf of the owners and operators of the NO_x budget source and of each NO_x budget unit at the source and that each 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, the Administrator or a court regarding the source or unit.’’

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

 (b)  Unless otherwise required by the Department or the Administrator, documents of agreement referred to in the account certificate of representation may not be submitted to the Department or Administrator. The Department and Administrator are not under any obligation to review or evaluate the sufficiency of these documents, if submitted.

 (a)  Once a complete account certificate of representation under §  145.13 (relating to account certificate of representation) has been submitted and received, the Department and the NO_x Budget Administrator will rely on the account certificate of representation unless a superseding complete account certificate of representation under §  145.13 is received by the Department and the NO_x Budget Administrator.

 (b)  Except as provided in §  145.12(a) or (b) (relating to changing the NO_x authorized account representative and the alternate NO_x authorized account representative; changes in the owners and operators), an objection or other communication submitted to the Department or Administrator concerning the authorization, or any representation, action, inaction or submission of the NO_x authorized account representative will not affect any representation, action, inaction or submission of the NO_x authorized account representative or the finality of a decision or order by the Department or Administrator under the NO_x Budget Trading Program.

 (c)  The Department and the Administrator will not adjudicate any private legal dispute concerning the authorization or any representation, action, inaction or submission of a NO_x authorized account representative, including private legal disputes concerning the proceeds of NO_x allowance transfers.

   This section cited in 25 Pa. Code §  145.81 (relating to opt-in source general provisions).

COMPLIANCE CERTIFICATION

§ 145.30. Compliance certification report.

 (a)  Applicability and deadline. For each control period in which one or more NO_x budget units at a source are subject to the NO_x budget emissions limitation, the NO_x authorized account representative of the source shall submit to the Department and the NO_x Budget Administrator by November 30 of that year, a compliance certification report for the source covering all of the units.

 (b)  Contents of report. The NO_x authorized account representative shall include in the compliance certification report under subsection (a) the following elements, in a format prescribed by the Department, concerning each unit at the source and subject to the NO_x budget emissions limitation for the control period covered by the report:

   (1)  Identification of each NO_x budget unit.

   (2)  At the NO_x authorized account representative’s option, the serial numbers of the NO_x allowances that are to be deducted from each unit’s compliance account under §  145.54 (relating to compliance) for the control period.

   (3)  At the NO_x authorized account representative’s option, for units sharing a common stack and having NO_x emissions that are not monitored separately or apportioned in accordance with § §  145.70—145.76 (relating to recordkeeping and reporting requirements), the percentage of allowances that is to be deducted from each unit’s compliance account under §  145.54(e).

   (4)  The compliance certification under subsection (c).

 (c)  Compliance certification. In the compliance certification report under subsection (a), the NO_x authorized account representative shall certify, based on reasonable inquiry of those persons with primary responsibility for operating the source and the NO_x budget units at the source in compliance with the NO_x Budget Trading Program, whether each NO_x budget unit for which the compliance certification is submitted was operated during the calendar year covered by the report in compliance with the NO_x Budget Trading Program applicable to the unit, including the following:

   (1)  Whether the unit was operated in compliance with the NO_x budget emissions limitation.

   (2)  Whether the monitoring plan that governs the unit has been maintained to reflect the actual operation and monitoring of the unit, and contains the information necessary to attribute NO_x emissions to the unit, in accordance with § §  145.70—145.76.

   (3)  Whether all the NO_x emissions from the unit, or a group of units (including the unit) using a common stack, 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 § §  145.70—145.76. 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 has been made.

   (4)  Whether the facts that form the basis for certification under § §  145.70—145.76 of each monitor at the unit or a group of units (including the unit) using a common stack, or for using an excepted monitoring method or alternative monitoring method approved under § §  145.70—145.76, if any, has changed.

   (5)  If a change is required to be reported under paragraph (4), 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.

 (a)  The Department or the Administrator may review and conduct independent audits concerning any compliance certification or any other submission under the NO_x Budget Trading Program and make appropriate adjustments of the information in the compliance certifications or other submissions.

 (b)  NO_x allowances may be deducted from or transferred to a unit’s compliance account or a source’s overdraft account based on the information in the compliance certifications or other submissions, as adjusted under subsection (a).

   This section cited in 25 Pa. Code §  145.50 (relating to NO_x Allowance Tracking System accounts); 25 Pa. Code §  145.55 (relating to banking); and 25 Pa. Code §  145.81 (relating to opt-in source general provisions).

NO_x ALLOWANCE ALLOCATIONS

§ 145.40. State Trading Program budget.

 (a)  In accordance with § §  145.41 and 145.42 (relating to timing requirements for NO_x allowance allocations; and NO_x allowance allocations), the Department will allocate to NO_x budget units under §  145.4(a) (relating to applicability), for each control period specified in §  145.41, a total number of NO_x allowances less the sum of the NO_x emission limitations (in tons) for each unit exempt under §  145.4(b) that is not allocated allowances under §  145.42(b) or (c) for the control period and whose NO_x emission limitation (in tons of NO_x) is not included in the amount calculated under §  145.42(d)(5)(ii)(B). The Pennsylvania NO_x Trading Program Budget is as follows:

   (1)  The NO_x budget for electric generating units under this subchapter is 47,224 tons per season.

   (2)  The NO_x budget for nonelectric generating units under this subchapter is 3,619 tons per season.

 (b)  The NO_x budget may be adjusted as provided in §  145.90 (relating to emission reduction credit provisions).

 (a)  The Department will submit to the NO_x Allowance Tracking System the NO_x allowance allocations, in accordance with §  145.42 (relating to NO_x allowance allocations), for the control periods in 2003—2007.

 (b)  By April 1, 2005, the Department will publish the NO_x allowance allocations in the Pennsylvania Bulletin, in accordance with §  145.42(a)—(c), for the control periods 2008—2012.

 (c)  By April 1, 2010, by April 1 of 2015, and thereafter by April 1 of the year that is 5 years after the last year for which NO_x allowances allocations are determined, the Department will publish the NO_x allowance allocations in the Pennsylvania Bulletin, in accordance with §  145.42(a)—(c), for the control periods in the years that are 3, 4, 5, 6 and 7 years after the applicable deadline under this subsection.

 (d)  By April 1, 2003, and April 1 of each year thereafter, the Department will publish the NO_x allowance allocations in the Pennsylvania Bulletin, in accordance with §  145.42(d), for the control period in the year of the applicable deadline under this subsection.

 (a)  Unit heat input shall be calculated as follows:

   (1)  The heat input (in mmBtu) used for calculating NO_x allowance allocations for each NO_x budget unit under §  145.4 (relating to applicability) will be as follows:

     (i)   For a NO_x allowance allocation under §  145.41(a) (relating to timing requirement for NO_x allowance allocations).

       (A)   For a unit under §  145.4(a)(1), the average of the two highest amounts of the unit’s heat input for the control periods in 1995—1998.

       (B)   For a unit under §  145.4(a)(2), the control period in 1995 or, if the Administrator determines that reasonably reliable data are available for control periods in 1996—1998, the average of the two highest amounts of the unit’s heat input for the control periods in 1995—1998.

     (ii)   For a NO_x allowance allocation under §  145.41(b), the unit’s average heat input for the control periods in 2002—2004.

     (iii)   For a NO_x allowance allocation under §  145.41(c), the unit’s average heat input for the control period in the years that are 4, 5, 6, 7 and 8 years before the first year for which the allocation is being calculated.

   (2)  The unit’s heat input for the control period in each year specified under paragraph (1) will be determined in accordance with 40 CFR Part 75 (relating to continuous emission monitoring). Notwithstanding the first sentence of this paragraph (2), the following apply:

     (i)   For a NO_x allowance allocation under §  145.41(a), the heat input will be determined using the best available data reported to the Administrator for the unit if the unit was not otherwise subject to the requirements of 40 CFR Part 75 for the control period.

     (ii)   For a NO_x allowance allocation under §  145.41(b) or (c) for a unit exempt under §  145.4(b), the heat input shall be treated as zero if the unit is exempt under §  145.4(b) during the control period.

 (b)  For each group of five control periods specified in § §  145.41(a)—(c), the Department will allocate to all NO_x budget units in a given state under §  145.4(a)(1) that commenced operation before May 1, 1997, for allocations under §  145.41(a), May 1, 2003, for allocations under §  145.41(b), and May 1 of the year 5 years before the first year for which the allocation under §  145.41(c) is being calculated, a total number of NO_x allowances equal to 95% of the portion of the State’s trading program budget under §  145.40 (relating to State Trading Program budget) covering these units. The Department will allocate in accordance with the following procedures:

   (1)  The Department will allocate NO_x allowances to each NO_x budget unit under §  145.4(a)(1) for each control period in an amount equaling 0.15 lb/mmBtu multiplied by the heat input determined under subsection (a), divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

   (2)  If the initial total number of NO_x allowances allocated to all NO_x budget units under §  145.4(a)(1) in the state for a control period under subsection (b)(1) does not equal 95% of the portion of the State’s trading program budget under §  145.40 covering these units, the Department will adjust the total number of NO_x allowances allocated to all these NO_x budget units for the control period under paragraph (1) so that the total number of NO_x allowances allocated equals 95% of the portion of the State’s trading program budget. This adjustment will be made by multiplying each unit’s allocation by 95% of the portion of the State’s trading program budget; dividing by the total number of NO_x allowances allocated under paragraph (1) for the control period; and rounding to the nearest whole number of NO_x allowances as appropriate.

 (c)  For each group of five control periods specified in §  145.41(a)—(c), the Department will allocate to all NO_x budget units in a given state under §  145.4(a)(2) that commenced operation before May 1, 1997, for allocations under §  145.41(a), May 1, 2003, for allocations under §  145.41(b), and May 1 of the year 5 years before the first year for which the allocation under §  145.41(c) is being calculated, a total number of NO_x allowances equal to 95% of the portion of the State’s trading program budget under §  145.40 covering these units. The Department will allocate in accordance with the following procedures:

   (1)  The Department will allocate NO_x allowances to each NO_x budget unit under §  145.4(a)(2) for each control period in an amount equaling 0.17 lb/mmBtu multiplied by the heat input determined under subsection (a), divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

   (2)  If the initial total number of NO_x allowances allocated to all NO_x budget units under §  145.4(a)(2) in the state for a control period under subsection (c)(1) does not equal 95% of the portion of the State’s Trading Program Budget under §  145.40 covering these units, the Administrator will adjust the total number of NO_x allowances allocated to all these NO_x budget units for the control period under paragraph (1) so that the total number of NO_x allowances allocated equals 95% of the portion of the State’s Trading Program Budget under §  145.40 covering these units. This adjustment will be made by multiplying each unit’s allocation by 95% of the portion of the State’s Trading Program budget under §  145.40 covering these units; dividing by the total number of NO_x allowances allocated under paragraph (1) for the control period; and rounding to the nearest whole number of NO_x allowances as appropriate.

 (d)  For each control period specified in §  145.41(d), the Department will allocate NO_x allowances to NO_x budget units in a given State under §  145.4(a) (except for units exempt under §  145.4(b)) that commence operation, or are projected to commence operation, on or after May 1, 1997 (for control periods under §  145.41(a)); May 1, 2003 (for control periods under §  145.41(b)); and May 1 of the year 5 years before the beginning of the group of 5 years that includes the control period (for control periods under §  145.41(c)). The Department may also use this set-aside to address allocation revisions to units under subsections (a)—(c). For each ton of NO_x deducted under §  129.205 (relating to zero emission renewable energy production credit), the Department will retire one NO_x allowance from the allowances in the set-aside for the subsequent control period. The Department will make the allocations under this subsection in accordance with the following procedures:

   (1)  The Department will establish one allocation set-aside for each control period for each state. Each allocation set-aside will be allocated NO_x allowances equal to 5% of the tons of NO_x emission in the state’s Trading Program Budget under §  145.40, rounded to the nearest whole number of NO_x allowances as appropriate.

   (2)  The NO_x authorized account representative of a NO_x budget unit specified in this section may submit to the Department a request, in a format specified by the Department, to be allocated NO_x allowances for the control period. The NO_x allowance allocation request must be received by the Department on or after the date on which the State permitting authority issues a permit to construct the unit and by January 1 before the control period for which NO_x allowances are requested.

   (3)  In a NO_x allowance allocation request under paragraph (2), the NO_x authorized account representative for a NO_x budget unit under §  145.4(a)(1) may request for the control period NO_x allowances in an amount that does not exceed the lesser of the following:

     (i)   0.15 lb/mmBtu multiplied by the unit’s maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

     (ii)   The unit’s most stringent State or Federal NO_x emission limitation multiplied by the unit’s maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

   (4)  In a NO_x allowance allocation request under paragraph (2), the NO_x authorized account representative for a NO_x budget unit under §  145.4(a)(2) may request for a control period NO_x allowances in an amount that does not exceed the lesser of the following:

     (i)   0.17 lb/mmBtu multiplied by the unit’s maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

     (ii)   The unit’s most stringent state or Federal NO_x emission limitation multiplied by the unit’s maximum design heat input, multiplied by the lesser of 3,672 hours or the number of hours remaining in the control period starting with the day in the control period on which the unit commences operation or is projected to commence operation, divided by 2,000 lb/ton, and rounded to the nearest whole number of NO_x allowances as appropriate.

   (5)  The Department will review each NO_x allowance allocation request submitted in accordance with paragraph (2) and will allocate NO_x allowances pursuant to the request as follows:

     (i)   Upon receipt of the NO_x allowance allocation request, the Department will make any necessary adjustments to the request to ensure that the requirements of paragraphs (2)—(4) are met.

     (ii)   The Department will determine the following amounts:

       (A)   The sum of the NO_x allowances requested (as adjusted under subparagraph (i)) in all NO_x allowance allocation requests under paragraph (2) for the control period.

       (B)   For units exempt under §  145.4(b) in the state that commenced operation, or are projected to commence operation, on or after May 1, 1997 (for control periods under §  145.41(a)); May 1, 2003 (for control periods under §  145.41(b)); and May 1 of the year 5 years before beginning of the group of 5 years that includes the control period (for control periods under §  145.41(c)), the sum of the NO_x emission limitations (in tons of NO_x) on which each unit’s exemption under §  145.4(b) is based.

     (iii)   If the number of NO_x allowances in the allocation set-aside for the control period less the amount under subparagraph (ii)(B) is not less than the amount determined under subparagraph (ii)(A), the Department will allocate the amount of the NO_x allowances requested (as adjusted under subparagraph (i)) to the NO_x budget unit for which the allocation request was submitted.

     (iv)   If the number of NO_x allowances in the allocation set-aside for the control period less the amount under subparagraph (ii)(B) is less than the amount determined under subparagraph (ii)(A), the Department will allocate, to the NO_x budget unit for which the allocation request was submitted, the amount of NO_x allowances requested (as adjusted under subparagraph (i)) multiplied by the number of NO_x allowances in the allocation set-aside for the control period less the amount determined under subparagraph (ii)(B), divided by the amount determined under subparagraph (ii)(A), and rounded to the nearest whole number of NO_x allowances as appropriate.

 (e)  Beginning in the 2008 control period, a NO_x budget unit identified in subsection (d) may, upon request to the Department, receive allocations calculated under subsections (b) and (c). For the Department to grant the request, the NO_x budget unit shall have at least one complete control period of heat input data measured as specified in § §  145.70—145.75 (relating to recordkeeping and reporting requirements). If heat input data is available from more than one control period but less than the number of control periods specified in subsection (a)(1)(ii) or (iii), the data will be averaged based on the number of available control periods.

 (f)  The NO_x Budget Administrator will take the following action for sources that are allocated NO_x allowances under subsection (d):

   (1)  The NO_x Budget Administrator will deduct NO_x allowances under §  145.54(b), (e) or (f) (relating to compliance) to account for the actual heat input of the unit during the control period. The NO_x Budget Administrator will calculate the number of NO_x allowances to be deducted to account for the unit’s actual heat input using the following formulas and rounding to the nearest whole number of NO_x allowance as appropriate, provided that the number of NO_x allowances to be deducted shall be zero if the number calculated is less than zero:

  NO_x allowances deducted for actual heat input for a unit under §  145.4(a)(1) = unit’s NO_x allowances allocated for control period - (unit’s actual control period heat input x unit’s emission rate x 2,000 lb/ton).

  NO_x allowances deducted for actual heat input for a unit under §  145.4(a)(2) = unit’s NO_x allowances allocated for control period - (unit’s actual control period heat input x unit’s emission rate x 2,000 lb/ton)

  where:

  ‘‘unit’s NO_x allowances allocated for control period’’ is the number of NO_x allowances allocated to the unit for the control period under subsection (d).

  ‘‘unit’s actual control period heat input’’ is the heat input (in mmBtu) of the unit during the control period.

  ‘‘unit’s emission rate’’ is the emission rate in lb/mmBtu for the unit as determined under paragraphs (3) and (4).

   (2)  The NO_x Budget Administrator will transfer any NO_x allowances deducted under subsection (c)(1) to the allocation set-aside for the control period for which they were allocated.

 (g)  After making the deductions for compliance under §  145.54(b), (e) or (f) for a control period, the NO_x Budget Administrator will determine whether any NO_x allowances remain in the allocation set-aside for the control period. The NO_x Budget Administrator will allocate these NO_x allowances to the NO_x budget units in the state using the following formula and rounding to the nearest whole number of NO_x allowances as appropriate:

  unit’s share of NO_x allowances remaining in allocation set-aside = total NO_x allowances remaining in allocation set-aside x (unit’s NO_x allowance allocation ÷ State’s Trading Program Budget excluding allocation set-aside)

  where:

  ‘‘total NO_x allowances remaining in allocation set-aside’’ is the total number of NO_x allowances remaining in the allocation set-aside for the control period.

 ‘‘unit’s NO_x allowance allocation’’ is the number of NO_x allowances allocated under subsection (b) or (c) to the unit for the control period to which the allocation set-aside applies.

   ‘‘State’s Trading Program budget excluding allocation set-aside’’ is the State’s Trading Program budget under §  145.40 for the control period to which the allocation set-aside applies multiplied by 95%, rounded to the nearest whole number of NO_x allowances as appropriate.

 (h)  If the Department determines that NO_x allowances were allocated under subsection (b), (c) or (d) for a control period and the recipient of the allocation is not actually a NO_x budget unit under §  145.4(a), the Department will notify the NO_x authorized account representative and then will act in accordance with the following procedures:

   (1)  The NO_x Budget Administrator will not record these NO_x allowances for the control period in an account under §  145.53 (relating to recordation of NO_x allowance allocations).

     (i)   If the NO_x Budget Administrator already recorded these NO_x allowances for the control period in an account under §  145.53 and if the NO_x Budget Administrator makes this determination before making all deductions under §  145.54 (except deductions under §  145.54(d)(2)) for the control period, the NO_x Budget Administrator will deduct from the account NO_x allowances equal in number to and allocated for the same or a prior control period as the NO_x allowances allocated to the recipient for the control period. The NO_x authorized account representative shall ensure that the account contains the NO_x allowances necessary for completion of the deduction. If the account does not contain the necessary NO_x allowances, the NO_x Budget Administrator will deduct the required number of NO_x allowances, regardless of the control period for which they were allocated, whenever NO_x allowances are recorded in the account.

     (ii)   If the NO_x Budget Administrator already recorded the NO_x allowances for the control period in an account under §  145.53 and if the NO_x Budget Administrator makes this determination after making all deductions under §  145.54 (except deductions under §  145.54(d)(2)) for the control period, then the NO_x Budget Administrator will apply subparagraph (i) to any subsequent control period for which NO_x allowances were allocated to the recipient.

   (2)  The NO_x Budget Administrator will transfer the NO_x allowances that are not recorded, or that are deducted, under paragraph (1) to an allocation set-aside for the state in which the source is located.

     (i)   The Department will publish for comment a list of the allocations in the Pennsylvania Bulletin.

   The provisions of this §  145.42 amended December 10, 2004, effective December 11, 2004, 34 Pa.B. 6509. Immediately preceding text appears at serial pages (269045) to (269051).

 (a)  For any NO_x budget unit that reduces its NO_x emission rate in the 2001 or 2002 control period, the owners and operators may request early reduction credits in accordance with the following requirements:

   (1)  Each NO_x budget unit for which the owners and operators intend to request, or request, any early reduction credits in accordance with paragraph (4) shall monitor and report NO_x emissions in accordance with this subchapter starting in the 2000 control period and for each control period for which the early reduction credits are requested. The unit’s percent monitor data availability may not be less that 90% during the 2000 control period, and the unit shall be in compliance with applicable state or Federal NO_x emission control requirements during 2000—2002.

   (2)  NO_x emission rate and heat input under paragraphs (3) and (4) shall be determined in accordance with this subchapter.

   (3)  Each NO_x budget unit for which the owners and operators intend to request, or request, any early reduction credits under paragraph (4) shall reduce its NO_x emission rate, for each control period for which early reduction credits are requested, to less than both 0.25 lb/mmBtu and 80% the unit’s NO_x emission rate in the 2000 control period.

   (4)  The NO_x authorized account representative of an NO_x budget unit that meets the requirements of paragraphs (1) and (3) may submit to the Department a request for early reduction credits for the unit based on NO_x emission rate reductions made by the unit in the control period for 2001 or 2002.

     (i)   In the early reduction credit request, the NO_x authorized account representative may request early reduction credits for the control period in an amount equal to the unit’s heat input for the control period multiplied by the difference between 0.25 lb/mmBtu and the unit’s NO_x emission rate for the control period, divided by 2000 lb/ton, and rounded to the nearest whole number of tons.

     (ii)   The early reduction credit request shall be submitted, in a format specified by the Department, by February 1, 2003. Requests submitted after February 1, 2003, will not be accepted.

 (b)  For any NO_x budget unit that is subject to the requirements of § §  123.101—123.120 (relating to NO_x allowance requirements), the owners and operators may request early reduction credits in accordance with the following requirements:

   (1)  The NO_x authorized account representative of the unit may submit to the Department a request for early reduction credits in an amount equal to the amount of banked allowances under § §  123.101—123.120 that were allocated for the control period in 2001 or 2002 and are held by the unit, in accordance § §  123.101—123.120, as of the date of submission of the request. During the entire control period in 2001 or 2002 for which the allowances were allocated, the unit shall have monitored and reported NO_x emissions in accordance the Guidance for Implementation of Emission Monitoring Requirements for the NO_x Budget Program (January 28, 1997).

   (2)  The early reduction credit request under paragraph (1) shall be submitted, in a format specified by the Department, by February 1, 2003. Requests submitted after February 1, 2003, will not be accepted.

   (3)  The NO_x authorized account representative of the unit may not submit a request for early reduction credits under paragraph (1) for banked allowances under the Ozone Transport Commission NO_x Budget Program that were allocated for any control period during which the unit made NO_x emission reductions for which he submits a request for early reduction credits under subsection (a) for the unit.

 (c)  For a NO_x budget unit that is subject to the requirements of § §  123.101—123.120 that installs selective catalytic reduction or selective noncatalytic reduction to reduce NO_x emissions after May 1999, the owners and operators may request control equipment early reduction credits in accordance with the following requirements:

   (1)  Each NO_x budget unit for which the owners and operators intend to request, or request early reduction credits in accordance with this s