§97.304. Applicability. — Inbound Citations

(1) The State may adopt, as applicability provisions replacing the provisions in § 97.304 of this chapter, provisions for applicability that are substantively identical to the provisions in § 96.304 of this chapter expanded to include all non-EGUs subject to the State's emissions trading program approved under § 51.121(p). Before January 1, 2009, a State's applicability provisions shall be considered to be substantively identical to § 96.304 of this chapter (with the expansion allowed under this paragraph) regardless of whether the State's regulations include the definition of “Biomass”, paragraph (3) of the definition of “Cogeneration unit”, and the second sentence of the definition of “Total energy input” in § 97.102 of this chapter promulgated on October 19, 2007, provided that the State timely submits to the Administrator a SIP revision that revises the State's regulations to include such provisions. Submission to the Administrator of a SIP revision that revises the State's regulations to include such provisions shall be considered timely if the submission is made by January 1, 2009.

(i) For a unit that is a CAIR NOX Ozone Season unit under § 97.304 on the later of November 15, 1990 or the date the unit commences commercial operation as defined in paragraph (1) of this definition and that subsequently undergoes a physical change (other than replacement of the unit by a unit at the same source), such date shall remain the date of commencement of commercial operation of the unit, which shall continue to be treated as the same unit.

(1) Any CAIR NOX Ozone Season unit that is permanently retired and is not a CAIR NOX Ozone Season opt-in unit under subpart IIII of this part shall be exempt from the CAIR NOX Ozone Season Trading Program, except for the provisions of this section, §§ 97.302, 97.303, 97.304, 97.306(c)(4) through (7), 97.307, 97.308, and subparts BBBB and EEEE through GGGG of this part.

(e) If the Administrator determines that CAIR NOX Ozone Season allowances were allocated under paragraphs (a) and (b) of this section, paragraphs (a) and (c) of this section, or paragraph (d) of this section for a control period and that the recipient of the allocation is not actually a CAIR NOX Ozone Season unit under § 97.304 in such control period, then the Administrator will notify the CAIR designated representative and will act in accordance with the following procedures:

(1) Except as provided in paragraph (e)(2) or (3) of this section, the Administrator will not record such CAIR NOX Ozone Season allowances under § 97.353.

(2) If the Administrator already recorded such CAIR NOX Ozone Season allowances under § 97.353 and if the Administrator makes such determinations before making deductions for the source that includes such recipient under § 97.354(b) for the control period, then the Administrator will deduct from the account in which such CAIR NOX Ozone Season allowances were recorded under § 97.353 an amount of CAIR NOX Ozone Season allowances allocated for the same or a prior control period equal to the amount of such already recorded CAIR NOX Ozone Season allowances. The CAIR designated representative shall ensure that there are sufficient CAIR NOX Ozone Season allowances in such account for completion of the deduction.

(3) If the Administrator already recorded such CAIR NOX Ozone Season allowances under § 97.353 and if the Administrator makes such determinations after making deductions for the source that includes such recipient under § 97.354(b) for the control period, then the Administrator will apply paragraph (e)(1) or (2) of this section, as appropriate, to any subsequent control period for which CAIR NOX Ozone Season allowances were allocated to such recipient.

(4) The Administrator will transfer the CAIR NOX Ozone Season allowances that are not recorded, or that are deducted, in accordance with paragraphs (e)(1), (2), and (3) of this section to a new unit set-aside for the State in which such recipient is located.

(b) Is not a CAIR NOX Ozone Season unit under § 97.304 and is not covered by a retired unit exemption under § 97.305 that is in effect;

(a) Except as otherwise provided in §§ 97.301 through 97.304, §§ 97.306 through 97.308, and subparts BBBB and CCCC and subparts FFFF through HHHH of this part, a CAIR NOX Ozone Season opt-in unit shall be treated as a CAIR NOX Ozone Season unit for purposes of applying such sections and subparts of this part.

(i) Is not a CAIR NOX Ozone Season unit under § 97.304 and is not covered by a retired unit exemption under § 97.305 that is in effect;

(a) If a CAIR NOX Ozone Season opt-in unit becomes a CAIR NOX Ozone Season unit under § 97.304, then the CAIR designated representative shall notify in writing the permitting authority and the Administrator of such change in the CAIR NOX Ozone Season opt-in unit's regulatory status, within 30 days of such change.

(b) Upon approval by the Administrator of a State's State implementation plan revision under § 51.123(ee)(1) of this chapter providing for the inclusion in the CAIR NOX Ozone Season Trading Program of all units that are not otherwise CAIR NOX Ozone Season units under § 97.304(a) and (b) and that are NOX Budget units covered by the State's emissions trading program approved under § 51.121(p), the amount in the State trading budget for a control period in a calendar year will be the sum of the amount set forth for the State and for the year in paragraph (a) of this section and the amount of additional CAIR NOX Ozone Season allowance allocations issued under § 51.123(ee)(1)(ii)(A) of this chapter for the year.

(b) Upon approval by the Administrator of a State's State implementation plan revision under § 51.123(ee)(1) of this chapter providing for the inclusion in the CAIR NOX Ozone Season Trading Program of all units that are not otherwise CAIR NOX Ozone Season units under § 97.304(a) and (b) and that are NOX Budget units covered by the State's emissions trading program approved under § 51.121(p), the amount in the State trading budget for a control period in a calendar year will be the sum of the amount set forth for the State and for the year in paragraph (a) of this section and the amount of additional CAIR NOX Ozone Season allowance allocations issued under § 51.123(ee)(1)(ii)(A) of this chapter for the year.

(2) Any organic byproduct of agriculture that can be converted into energy; or